Charges Filed in Connection with the Death of Botanist Leonardo Co

01 March 2013

In a Resolution dated 20 December 2012, but promulgated and released only yesterday, 28 February 2013, the Panel of Prosecutors tasked to conduct preliminary investigation into the death of one of the nation's foremost botanists, Dr. LEONARDO CO, has found probable cause to charge nine (9) members of the 19th Infantry  "Commando" Battalion, 81D, Philippine Army (PA) for the crime of Reckless Imprudence Resulting in Multiple Homicide and Attempted Homicide and twenty-seven (27) others for Obstruction of Justice.

Dr. Co, along with two others, namely, a farmer named JULIO L. BORROMEO and an employee of the Energy Development Corporation (EDC) named SOFRONIO G. CORTEZ,  on  15 November 2010 in Kananga, Leyte. Their two (2) other companions, licensed forester RONINO GIBE and a farmer named POLICARPIO BALUTE survived the incident. Dr. Co, who is also a faculty member of the University of the Philippines (UP), Diliman, was contracted as a consultant of the EDC, the country's largest geothermal power producer, in one of its projects.

He and his four companions, who were assisting and/or acting as his guides, were in the  vicinity of Sitio Mahiao, Brgy. Lim-ao in Kananga in order to conduct research, collection and procurement of seeds and seedlings of endangered species of trees for replanting in EDC sites. At the time of the incident, they were in the act of identifying and marking mother trees when they were suddenly fired upon, resulting in the death of Dr. Co, Borromeo and Cortez.

The widow and surviving parents of Dr. Co filed a complaint for Murder against all thirty-six (36) members of the 19th Infantry "Commando" Battalion, led by 1Lt RONALD G. ODCHIMAR. While said complaint was undergoing preliminary investigation, the Regional Criminal Investigation and Detection Unit - Philippine National Police  (RCIDU-PNP), Regional Office 8, Camp Kangleon, Palo, Leyte (RCIDU-PNP, Region 8) released the findings of their independent investigation recommending the filing of reckless imprudence resulting in homicide and attempted homicide, based on the declarations of the two survivors of the incident, Gibe and Balute.

According to the respondents, the victims were caught in a crossfire during an encounter with communist rebels during a legitimate military counter-insurgency operation called "Oplan X-mas Gift." They claimed that, sometime past  12 noon of 15 November 2010, they were fired upon first by three (3) armed men clad in black, who were at a distance of fifty (50) to seventy-five (75) meters from them, which prompted them to fire back and resulted in an exchange of gunfire that  lasted from ten (i10) to fifteen (15) minutes. Thereafter, they scoured the area at around 1:00PM and found two  (2) dead bodies, one (1) seriously wounded and one (1) unharmed survivor, whom they assisted after finding that they were not communist rebels.

The widow of Dr. Co, Mrs. GLENDA F. CO, insisted that the crime committed was Murder because of Respondents' admission that the victims were their intended targets and that they, the Respondents, acted with the singular purpose of killing them. She also pointed out contradictions in the statements of Respondents as to who actually saw the suspected communist rebels, and the results of ballistics examination, which show that Respondents fired at the victims from a short distance at the lower ground.

In the course of the preliminary investigation, the panel of prosecutors conducted an ocular inspection and clarificatory questioning at the scene of the crime in the presence of the parties and counsels. The evidence thus gathered led the panel to conclude and find probable cause to file charges of Reckless Imprudence Resulting in Multiple Homicide and Attempted Homicide against 1Lt. Odchimar and eight (8) others, who are members of the 1st squad of the 1st Platoon, and charges of violation of  Section  1(c)3 of Presidential Decree  (P.D.) No. 1829 (commonly known as the "Obstruction of Justice Act")  against the rest of the twenty-seven (27) respondents. In so resolving, the panel of prosecutors were not convinced by the respondents' claim of an actual encounter with alleged communist  rebels, during which the victims were merely caught in the crossfire. According to the Panel, "[a]s it appears to us, such asservation is nothing more than an exculpatory defense, if not an outright fabrication" as it "did not find during ocular inspection any iota of proof of a volley of gunfire from the other end or opposite direction." The Panel observed that, aside from the fact that there were no other victims except the team of Dr. Co, "all the bullet marks were towards the lower ridge where the victims or the alleged suspected communist rebels purportedly were with nary any trace whatsoever of gunfire towards the direction of the respondents in the upper ridge," which were further supported by "the uniform declarations of survivors Gibe and Balute that the fire all came from behind them, both indicating one and the same source and/or direction of gun burst." In fact, even the uniform allegation of the respondents that they saw one of the alleged rebels quickly fleeing and disappearing dovetails with Balute's declaration that he immediately ran at the first opportunity upon hearing the gunfire.

All these, according to the Panel, show that they were the real targets of the respondents and no other.

However, the Panel did not find probable cause to charge Respondents with an intentional felony, i.e., Murder or Homicide, but merely of a culpable one, i.e., Reckless Imprudence resulting in multiple homicide and attempted  homicide.  In so resolving, the Panel found that the Respondents actedunder the influence of a mistake of fact, i.e., that due to "the remoteness and seclusion of the forested area where there is little or hardly any possibility of civilian presence, the earlier reported sightings of alleged communist rebels therein that induced the creation of the strategic plan, and the absence ... of any information or prior coordination with them [by EDC] regarding the victims' scheduled field work on that fateful day," respondents  "would have only entertained the  thought that, or would have been so convinced that only communist rebels could be in that place at that opportune moment." The Panel also took note of survivor Gibe's statement during the ocular inspection that their team was armed with sharp weapons, particularly "itak", which they used to carve and put marks on the trees for their research. The Panel believes that the sound made by such acts may have been mistaken
as gun burst.

On the other hand, Respondents could not be completely exculpated from any culpability for firing at the victims as "the inconsistency of [their] testimonies vis-à-vis the corpus delicti, their instinctive action and appreciation of circumstances then prevailing did not appear faultless or prudent."

As to violation of the Obstruction of Justice Act, the Panel found probable cause to charge the rest of the Battalion when they "wilfully and knowingly impeded, frustrated or continuously delayed the prosecution of respondents-members of the 1st squad 1st platoon including its leader 1Lt Odchimar."

Informations shall be filed with the appropriate court in Leyte.•

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