This is
the third and final segment of our analysis
of the appeal filed in Osvaldo's defense,
which outlines the flagrant violations of
the civil rights of Osvaldo Villalobos that
are protected by Costa Rican law.
The Villalobos case file - minus the
evidence -- was received by the Criminal
Court on Dec.16, 2004, and the formal
accusations against Osvaldo were presented
by the Ministerio Publico to the Criminal
Court on Dec. 20, 2004. This latter event
launched the second phase of the case, known
as the "Etapa Intermedia", presided over by
a criminal court judge who had no prior
connection to the case. At some point the
decision had been made that individual
complaints would be adjudicated along with
the government's accusations. The document
also contained a warning that many of the
briefs filed on behalf of individual
investors were defective. The attorneys
were so advised and were given 10 days to
correct their mistakes.
The Judge of the Intermediate Stage is
obliged to review the origins of the
accusations and complaints and to study the
evidence collected to determine its
admissibility. Specifically, he must decide
if it was obtained legally and if the civil
rights of the accused were violated.
Furthermore, he must evaluate the evidence
as to relevancy and validity, and the
probability of achieving a conviction.
Finally, he must write his opinion as to
whether the case should go to trial and must
include the reasons for his recommendation.
The preliminary hearings which began in
early February of 2005 dealt mostly with
investor complaints. The defense attorneys
focused on two aspects of the Acuņa cases
(by far the most numerous) which did not
fulfill the legal requirements stipulated by
law. First to be addressed was the manner
in which Acuņa obtained his power of
attorney. Since nearly all his clients were
in other countries, a form letter was faxed
to them to be signed and returned by fax.
Many had no idea what they were signing or
what Acuņa was going to do.
Be that as it may, the procedure used was
completely inadequate to satisfy the rules
of authentication, and the power of attorney
should never have been granted. Secondly,
the complaint formulated by Acuņa lacked any
information as to where and when and under
what circumstances his clients were damaged
- thus denying the defense team the details
needed to defend against the charges. Acuņa
had done nothing to correct the errors he
had been forewarned about, but that did not
seem to matter. The cases were accepted
anyway.
Of course the defense objected, but the
Judge did not rule on it. Instead, he
postponed further discussion of the matter
until his decision to send the case to trial
was released on April 19, 2005. In that
document he stated that the objections
should be resolved by the Tribunal at the
end of the trial. On Feb. 9, 2007 the
Tribunal concluded that it was the
responsibility of the Judge of the
Intermediate Stage to have ruled. In other
words, the questions about the legality of
Acuņa's representation and the defective
complaints were essentially sidestepped by
the system.
In the Intermediate Judge's report of April
19, 2005 he stated that after a thorough
examination of the case file and the
evidence offered by Fiscal Espinoza, he was
convinced that there was a strong
probability that a conviction of Osvaldo
would be achieved. The problem is that he
never had occasion to see the evidence.
While he did have the case file with the
accusations and opinions of Espinoza, he
never examined the evidence or the means by
which it had been collected.
A review of the records showing the chain of
custody of the evidence reveals that it was
never in the possession of the Criminal
Court at any time during the Intermediate
Stage. Those records indicate that the
evidence remained in the custody of the
Ministerio Publico until it was transferred
directly to the Tribunal in October and
November of 2006.
The defense also pointed out that the law
requires each batch of evidence, when
presented to the court, to be accompanied by
an explanation by the fiscal as to how he
intended to use the material. Not only did
the Judge not see the evidence, he lacked
the benefit of those explanations, because
they didn't exist. The requirement itself
was never fulfilled by the prosecutor.
Throughout the course of the Intermediate
Stage, the bias of the Magistrate in favor
of the prosecution was obvious. In spite of
compelling arguments by the defense, he
continually ruled against them. The process
culminated with a final report that accepted
the presentation of Espinoza in its
entirety. None of the evidence was
excluded. All of the defective complaints
were accepted, and all of the charges were
found to have merit.
The trial began in May of 2007. Those
investors who were present in the audience
at the outset will recall that the boxes
filled with documents were so voluminous
that the judges seated behind them were
nearly obscured from view. The chambers
looked more like a shipping warehouse than a
courtroom. Yet, theoretically and legally,
the three judges were expected to perform an
impartial review of ALL the evidence,
eliminate that which was irrelevant or
obtained illegally, and evaluate the
relative importance of that which remained.
The trial procedure seemed reasonable enough
during the witness phase. It was really not
until the final moments when the verdict was
read that the true state of affairs became
apparent.
The Tribunal had selected the documentary
evidence and witness testimony that would
support the conviction of Osvaldo on the
charges of "aggravated" fraud and illegal
financial intermediation. Anything to the
contrary was dismissed without explanation.
The appeal of the defense team concentrated
on two areas of challenge. One was
procedural. Some examples of this have been
touched upon in this report. The second was
substantive and dealt with evaluation of the
evidence used by the Tribunal to convict
Osvaldo. The principle of "sana critica"
(logical reasoning) is mentioned frequently
by the defense in challenging those
conclusions reached by the Tribunal
regarding evidence which they (the judges)
considered to be essential elements in the
case.
Without further detail, we can state that
the appeal was very thorough and accurate in
demonstrating how the Judges misinterpreted
or twisted the evidence to conform to their
preconceived notion of guilt.
We are left with the unmistakable truth that
Oswaldo was convicted on the basis of
suspicion alone. It's a marvel that he
escaped the conviction of money laundering.
The irony is that he was exonerated of the
very charge which served as an excuse to
begin this legal fiasco.
When viewed in its totality, this case leads
one to believe that there may have been
conspiracy initially and collusion
throughout. If the Supreme Court does not
find sufficient reason to overturn the
conviction and sentence of the Tribunal, it
would also be reasonable to assume that the
High Court is either ignorant of the
applicable laws or does not choose to uphold
them.
Let us hope and pray that Costa Rican
jurisprudence takes this opportunity to
redeem itself.
Thank you.