The stories reporting the news that Regional Trial Court Judge Raphael Yrastorza Sr. convicted broadcaster-newspaper columnist Leo Lastimosa of libel in the complaint filed by then Cebu governor Gwen Garcia didn’t cite specifics as to what the judge relied on for his Aug. 30 decision.

The next day’s papers told the basic 5Ws but little on how and why. Often, there’s no time for that in the heat of deadline and pressure of space. But the second/third-day story could’ve done it.

Stories after the event were about Yrastorza rejecting suspicion that Capitol allowances influenced his decision and the judge explaining why Leo had to stand up for one hour 45 minutes while the decision was being read (1. he didn’t want to give Leo special treatment; 2. Leo appeared fit and didn’t ask to rest).

Libel elements

What in the judge’s mind convicted Leo?

Any decision on libel must deal with the four essential elements of the crime: identification, publication, malice, and defamation.

If a defense lawyer knocks off one element, his client walks. Most lawyers strike at three or four, hoping the multi-pronged assault will disable at least one.

Leo admitted publication. What he needed to refute were identification, malice, and defamation. Did he succeed? To the judge, he didn’t.

Focus on identity

The decision said Leo questioned “merely” the identity of “Doling,” the woman he wrote about in his “The Freeman” column. Leo didn’t question allegations of malice and defamation during the preliminary investigation at the prosecutor’s office and in the petition for review with Department of Justice.

If that is true, defense concentrated its attack on identity. Leo contends Gwen is not Doling who, he says, is a work of fiction. Gwen insists she is Doling and all the defamatory accusations against Doling (thievery, unexplained wealth, vengefulness) were all directed against her.

To identify Doling, Gwen herself and Glenn Baricuatro, an employee of her brother (then congressman Pablo John), testified. I was subpoenaed as witness for the prosecution but mainly to identify two columns I wrote on the issue. The judge in his decision considered me “an independent witness.”

To identify the victim of libel, only one witness other than the complainant is needed. Gwen’s testimony about her “absolute certainty” she is Doling may be self-serving as she is the complainant. Baricuatro’s testimony may also have less probative value as he was employed by Gwen’s brother.

Past acts

As to the News Sense columns about my U.P. Cebu class survey as to who is Doling, the judge said that “in the court’s mind, criteria for the survey were not clearly delineated (so) that its authenticity and credibility are doubted.”

Besides, the context of what I wrote must have been lost to the litigants and the court since only one column (July 19, 2007) was presented as people’s exhibit when there were two columns about the issue.

The second column (May 3, 2011), which I referred to in my testimony, explained that nine of 15 mass-com students identified Doling as Gwen from media reports while the remaining six didn’t recognize Gwen in Doling because they hadn’t read or heard about it.

Anyway, the judge shot down that testimony and also defense witness Democrito Barcenas’s declaration that Doling is not Gwen.

The judge could’ve relied only on Baricuatro’s testimony to identify Doling. But Glenn’s was also tainted by his links with the Garcia camp. So what must have convinced the judge that Doling is Gwen?

Conduct as evidence

A Rules of Court provision says evidence that one did a certain thing at one time cannot prove that he did the same or similar thing at another time. But the exception to that rule on “Previous Conduct as Evidence” is that evidence of past acts may be used to prove “a specific intent or knowledge, identity, plan, system, scheme, habit, custom, or usage and the like.”

The decision highlighted the word “identity.” Leo, in previous attacks (14 newspaper columns from Nov. 9, 2006 to June 2, 2007), named the governor.

He didn’t name Gwen in his Doling column but he enumerated sins similar to Doling’s in the columns in which he named Gwen.

Those previous attacks did him in. And the judge used Leo’s past columns not only for identifying Doling but also for finding malice and defamation in Leo’s Doling column of June 29, 2007.

The question is whether the past columns, for any of which Leo has not been convicted or charged, can be used to prove malice and defamation in the Doling column.

Who is Doling?

Identification is crucial because the other elements of the crime also hinge on it.

The judge identifies Doling as Gwen but the accused doesn’t agree. Appellate courts will settle that, among other issues that Leo’s lawyer may raise on appeal.

Was there failure to present each side’s case thoroughly? If there wasn’t, could the judge have seen it in a different light?

Until now there may be no absolute certainty about Doling’s identity. And that argues for the imperative of proving the journalist’s guilt beyond reasonable doubt.