KEY POINT: Sandiganbayan tags the prosecution's failure as reason for the dismissal of the 2015 case against Atty. Gerardo Carillo. Defense was weak too, says the Sandiganbayan, but the prosecution bore the burden of proving its accusation.
WHAT HAPPENED. Last February 21, news media reported that the Sandiganbayan acquitted Gerardo Carillo -- former Cebu City councilor, now city disaster council chief -- of the charge that he used a City Hall employee to cook at a private restobar near University of San Carlos. Carillo told the news on the same day the anti-graft court's decision was promulgated.
About four years ago, in a July 27, 2017 press release, headlined "Cebu City councilor axed for dishonesty," the Ombudsman said Gerry Carillo was found guilty of serious dishonesty and permanently barred from holding public office and forfeited all retirement benefits or a fine of one year's salary if he is separated from office.
Atty. Carillo, chairman of the Cebu City Disaster Risk and Management Council (CCDRMC), in breaking the news to media, said "God is good always as the truth prevailed. Thank you to those who supported and placed their faith in me."
He heads the disaster management council CDRRMC while retired Bureau of Fire Protection general Anderson Comar heads the disaster management office CDRRMO. Gerry ran and lost to Representative Rodrigo "Bebot" Abellanosa in the 2016 election for congressman in Cebu City south (Gerry got 38.7 percent of the vote against Bebot's 59.3 percent.)
OMBUDSMAN FINDINGS. The anti-graft office said it found that Carillo ordered complainant Michael Abellana, an administration aide III in the councilor's office, "to moonlight as a cook at his girlfriend's business, Baryo Grille restaurant." Abellana disclosed that he would just record his attendance in biometrics at City Hall at 5 a.m. and then proceed to Baryo Grille to cook. He'd go back to the office at 11 a.m. to register his time-out -- an arrangement that, he said, lasted from July 2013 until December 2014.
Carillo disputed that in his counter-affidavit to the complaint of "corrupt practices," saying the restobar operated only from 8 p.m. to 6 a.m., thus his work at the restaurant couldn't have disrupted his City Hall job.
The Ombudsman said in its decision the local government was "deceived into paying complainant his salary (P10,401 a month) for no work done." The fraud was made possible, it said, "either because the respondent authorized it or because he was grossly negligent." The testimonies "establish the lie committed," with the lie "further strengthened" by Carillo's signature on Abellana's DTR or daily time record.
WHERE PROSECUTION FAILED, according to the Sandiganbayan: "No documentary evidence," the court's February 21 ruling said, was presented that Abellana indeed worked at the restaurant during office hours. The other prosecution witness, Carillo's administrative assistant Rune Maquiling, only made "vacuous assertions" (statements showing lack of thought or intelligence) that "didn't corroborate the actual hours of the restobar's operations or the specific circumstance" of then councilor Carillo's order.
The Sandiganbayan Second Division decision - #SB-18-CRM-0402, penned by chairperson Associate Justice Oscar Herrera Jr. -- blames "the abject failure in substantiating" what the complaint alleges "leads to no other conclusion but the acquittal of the accused." The court, the ruling said, didn't even have to discuss the "mode and effect" of the crime since the intent wasn't proved. ("Abject" -- referring to a person or behavior that's "completely without pride or dignity" or "self-abasing" -- is pretty strong description of the prosecution's work.)
OMBUDSMAN TOOK IT UP in its investigation and ruling since Carillo raised the issue in his counter-affidavit to the complaint.
The then councilor said the restobar operated only starting 8 p.m. and therefore Abellana did his cooking outside government office hours. The Ombudsman shot the version down, saying "seven witnesses, all restaurant employees, testified that the establishment operated 24 hours daily." "Witnesses," the Ombudsman said, "also testified they saw Abellana work at the Barrio Grille all morning on working days."
Which must make people wonder: Was that finding by the Ombudsman not presented at the trial? It was the major crux of the question whether the moonlighting was illegal. The long investigation by the anti-graft agency must have been wasted if the crucial fact it dug up and established was omitted at the trial.
DEFENSE FAILED TOO. If the prosecution botched the job, so did the defense. Testimony by defense witnesses, including Carillo's, said the Sandiganbayan, "cannot be relied on to support the defense." Abellana's regular presence at the office "cannot be established" and Carillo's claim of the restobar operating only at night "cannot be substantiated."
The "uncertainty" about important facts "hounds" both defense and prosecution, the ruling said. And "well-settled" is the rule that the "prosecution carries the heavy burden of proving its accusation." A weak defense "does not tip the scale of justice in favor of the prosecution" if the prosecution fails "to discharge its function."
DISSERVICE TO EVERYONE. Even though Carillo was cleared in the Sandiganbayan, he was already smeared by the earlier Ombudsman finding. The Ombudsman's own press release said the then councilor was "axed for dishonesty." Finding of guilt at the time, complete with the meted penalty, was publicized.
The procedure is a disservice to the former councilor whose reputation may stay tarnished despite the acquittal. And it's deplorably damaging to public interest if actually, only the actors and the heavens know, it was a case of a government official getting away with what the Ombudsman ruled to be "an act of dishonesty."