Costa Rica – Since February, DayStar condominium owners, friends and family of Patrick Hundley and the entire Jaco community have been watching as the court case against Hundley plays out. The arrest came from alleged charges of defrauding multiple foreign investors out of $7 million.
Investors assert that they signed legal agreements then started out making monthly installments of as much as $500,000 for a year and a half, based on the promise that they would turn into shareholders in the Costa Rican corporation possessing the property after the $7 million was transferred. The investors state that they never became owners in this corporation and never received their promised shares.
The most recent news about the case is that on Monday at the latest hearing the bail was again reduced. The bail has gone from $3 million, to $2 million to now $1.5 million.
Recently it seems that Hundley is trying to divert attention from the case and start a fight against the Costa Rican justice system and the prison conditions which he is experiencing. This has been done with an open letter from Patrick Hundley about the prison conditions and now a website has been developed in support of Patrick Hundley called http://www.costaricainjustice.com/.
But we really need to ask ourselves, what is the real motive behind these calls to open eyes about the Costa Rica justice system? It has been inhumane for years now and now just because there is a “gringo” in jail it should be fixed?
In order to bring some legal perspective to the claims being made on the Costa Rica Injustice Website, we had Rafael Valerde of Outlier Legal Services to review the site and set the record straight. I have added my thoughts as well in regards to the legal information being provided.
Let’s go through what is being claimed on the Costa Rica Injustice Website:
FALSE PRETENSES
On February 17, 2014, Mr. Hundley voluntarily showed up for a deposition at the Prosecutors office in Puntarenas with documents to present his side of the business dispute. The prosecuting attorney’s request for Mr. Hundley to give a deposition turned out to be false pretenses. After asking Mr. Hundley a couple of personal family questions several officers came into the room and handcuffed him. He does not speak Spanish and the translator available could not explain to him what was happening. Mr. Hundley never presented his side of the dispute. Instead of giving a deposition, he was arrested with no explanation and no legal rights.
Questions to Rafael Valverde, Outlier Legal Services
- Is there ever a circumstance where the above situation would happen in which the defendant would come to present his side of a case and would be arrested and not have knowledge of the case being presented against him?
This would never happen in Costa Rica. The criminal procedure starts when the victims file a complaint with either the OIJ or the District Attorney. If the DA knows who the defendant is, he will summon him to give a deposition. They DA would not proceed to arrest the defendant at the deposition unless there is an outstanding warrant for his arrest. Only a Criminal Judge can issue a warrant for arrest. The DA cannot decide unilaterally to arrest a person.
Pat Hundley could not have showed up there “voluntarily” and wound up being arrested. Most likely, he was summoned to appear for a deposition with the DA. If the DA proceeded to arrest him is because there was already the outstanding warrant, which was issued because they deemed him a flight risk.
- In a situation like the above is the defendant normally present with his own counsel? Is there a reason he would not appear in a deposition without counsel or translator?
Per Costa Rican law just like the Miranda rights in the USA counsel is provided if the defendant does not bring their own. Also if the plaintiff does not speak Spanish they are provided a translator. These are rights granted to every person in the Costa Rican court system.It is the prerogative of the defendant to waive his right to an attorney. If Mr. Hundley was not assisted by an attorney during the deposition it was because he did not want to.
My hypothesis based on these facts and various sources around the case:
Mr. Hundley knew that he was being charged and ignored the communication with the District Attorney. After ignoring these requests for an extended period of time arrest warrants were issued for both he and his legal counsel. (This in fact happened). If he did not know what was going on when he arrived (very unlikely), he would have been provided legal counsel as well as a translator. If these things were not done then yes, they would have violated his rights, but there would have been no reason to not follow the law in this case.
PREVENTIVA
Mr. Hundley has been held in prison in Costa Rica for over four months with no probable cause, no hearing on the facts of the case and no end in sight. The judge determined that he should be held in Preventiva while the prosecutor attempts to build his case against Mr.Hundley. Mr. Hundley is now in Perez Zeledon Prison where he is in a cell with 60 other men (the cell was built for 22 people), some of whom are convicted murders. Sixty men share one shower, one toilet and one urinal. Most men sleep on the concrete floor. The conditions at this prison are inhumane and something you hear about in third world countries.
Question to Rafael Valverde, Outlier Legal Services
- If there was no case nor probable cause against a client would a judge put them in preventive detention?
Section 293 a) of the Code of Criminal Procedures requires probable cause in order put a person in preventive detention. The Judge can issue a warrant for arrest, and once the defendant is detained, there is a 48 hour period to revoke and appeal the order for the preventive detention. It is the responsibility of the defendant’s attorney to request the withdrawal of the preventive detention.
Preventive detention is requested by the DA and the judge can dismiss the request for preventive custody by default, provided that the request by the DA does not meet either of the elements for the request, being probable cause, flight risk, danger to the victims. In this case, it appears that there is probable cause that he committed the offenses and there is certainly a risk of fleeing the country since he is a foreigner. It seems reasonable that the court would order preventive detention for this case.
My hypothesis based on these facts and various sources around the case:
While Hundley is claiming that he is being held without probable cause; it is the responsibility of his lawyer to prove thiswithin the designated time frame. Each client is given this opportunity in order to get out of preventiva. If he does not like it there he can pay the bail that has been set by the judge. He would not have been arrested had he handled this case in a diligent manner. This detainment could have been avoided.
That being said, yes the prisons in Costa Rica are terrible. It has been reported on by various new sources and even reported on in the USA. http://www.qcostarica.com/2014/03/04/u-s-report-bares-naked-serious-abuses-in-costa-ricas-prisons/
HUMAN RIGHTS VIOLATION
Holding Mr. Hundley in prison under Preventiva is an injustice and a violation of the standards of The Universal Declaration of Human Rights, Article 11 (1.):
“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”
Question to Rafael Valverde, Outlier Legal Services
- How is this not different than the US bail system where a person remains in jail until trial or paying bail? Is it basically the same premise?
The bail system in Costa Rica is the same as the one in the USA. If a defendant wants to get out of jail before the trial their lawyer can present their case to the judge in order to get a release or the defendant can pay bail.
My thoughts based on these facts and various sources around the case:
This is the system in Costa Rica, and although it may be flawed it is the way it is. He is going to be provided a trial as are his rights. Are we supposed to change everything for one gringo? What about all the other cases that no one cared about for the others in jail?
UNJUST BAIL – This section has been edited to show the real verbiage of the law
Mr. Hundley’s bail was lowered from 3.5 million dollars down to 2 million dollars on June 16th (four months after arrest). Legal opinion is that these bail amounts are the largest bails in Costa Rican history, and one must come up with the full amount, not 10% like in some countries.
According to Section #250 in The Criminal Law Procedure Code of Costa Rica, the judge sets the bail based on the particulars of the case. For instance, the type of felony, the background of the defendant, and the economic situation of the defendant.
On June 16, the Judge accepted Pat Hundley’s Income Tax Return, Bank Statements and Credit Card Statements (all notarized, stamped and sealed) and acknowledged the bail should be set according to the law. The judge also gave no reason for the two million dollar amount. Once again, Pat Hundley has been treated unfairly by the Costa Rican legal system. By contrast, Luis Milanes Tamayo, accused of fraud by taking $200 million from investors in 2002, has served just a single day in jail while his case drags through the courts in San José. Mr. Hundley should be able to surrender his passport, post reasonable bail and wait for a trial based on the facts.
Question to Rafael Valverde, Outlier Legal Services
- How is bail determined by judges in Costa Rica? Do they need to follow the above law every time or can they make determinations based on the individual?
Indeed, as noted in section 250 of the Code of Criminal procedures the bail is set on a case by case basis depending on the particulars of the defendant and the case.
My thoughts based on these facts and various sources around the case:
I do think that the bail may have been set too high at the beginning but I am not the judge nor do I know the case that was presented to him. If the defendant ignored requests to communicate with the plaintiffs then he would be considered a flight risk. If you are considered a flight risk then most likely your bail is going to be set higher in order to ensure that you appear for your trial. Again I think this could have been avoided had Mr. Hundley been in communication with the clients before arrest warrants were issued.
The other questions I have in regards to this statement on the Costa Rica injustice website are the following:
Are the plaintiffs investigating Hundley’s finances and is that part of the case against him? If so wouldn’t that challenge the validity of the tax documents Hundley presented to court on June 16th?
EXTORTION
Furthermore, the fact that if Mr. Hundley meets the demands of his business partner he will be released from prison reads like the definition of extortion: pay the money or continue to suffer in prison. And the government of Costa Rica is a party to this.
Question to Rafael Valverde, Outlier Legal Services
- What is the process when it comes to settling in the Costa Rican court system? Does this differ from the USA?
In the Costa Rica legal system there are 2 types of cases civil and criminal. In civil cases it is encouraged to settle outside of court in order to not waste time and money in the legal system. If the settlement is agreed upon the case is dismissed. There is no jail time or arrests in civil cases. In criminal cases such as Mr. Hundley’s there is also the option to settle. The settlement terms are presented by the plaintiffs and then the defendant can agree or go to trial. This is the exact same process that is used in the USA.
My thoughts based on these facts and various sources around the case:
When it comes to the plaintiffs in this case, they have offered settlement terms which have supposedly been rejected. I do not know how this can be seen as extortion as it is the right of the plaintiffs in most legal systems to request reasonable terms of settlement. It seems that the “business partners” are asking for their $7 million back. If Mr. Hundley cannot come up with the $2 million bail then perhaps his claims of extortion are a bit off base and he just does not have the money to pay back the plaintiffs. Although 7 million might seem like extortion to some people, if I stole $10,000 from someone then I would expect the people bringing charges against me to want that $10,000 back. The same goes for a higher amount of money. It is not the plaintiff’s fault he does not have that liquid right now.
In Conclusion
In regards to all of the above statements, if they are true then you would think that his lawyer would be pleading to the judge and legal system about the injustices against his client. There are too many sketchy facts to determine what the truth is, and many of these questions need to be answered before any of us come to any judgments.
However, there is one assumption we candraw from all the above data. Mr. Hundley placed himself in this position by not responding to requests by the plaintiffs over the past year to talk about the case. While he is sitting in his jail cell complaining about the conditions, he should only look at himself and his legal counsel for being in that situation. He may not have known the law, but his lawyers should have. It should be noted that his attorneys were also arrested and held for 30 days as accomplices. Nowhere in the world is ignorance a valid legal argument. If I did not have a safety kit in my vehicle in Costa Rica and received a ticket for it, I could not use the excuse “ I didn’t know” as a valid legal argument.
The current rumor flying around the Jaco area is that Hundley is coming up with the $1.5 million bail money through a property sale and will pay this in after his next hearing which occurred, Monday July 7th in Puntarenas.
One would think that over the next months the truth will come out in the Costa Rican legal system through the court proceedings, combined with the findings of the audit currently underway within DayStar .
If you have any questions for Rafael Valverde of Outlier Legal Services, Visit his Website Here.
