In Costa Rica, defendants who go to court with a public attorney are 25% more likely to be convicted

Róger Solórzano Chavarría is a 36-year-old vendor accused by the Costa Rican Prosecutor’s Office’s Financial Crimes Unit of leading a gang dedicated to stealing checks, forging documents and committing other acts of fraud.

Prosecutors say the gang stole at least $100,000 from banks, appliance stores and loan outfits. Solórzano was charged with 47 counts ranging from fraud to falsifying documents. The fraud charge alone carries a possible sentence of up to 10 years in prison.

He has already spent 16 months in jail waiting for trial. He has been unable to work to take care of his three daughters, his unemployed wife and pay his mortgage. Claiming his innocence, Solórzano said he rejected a plea deal that offered a reduced sentence.

In Costa Rica, those accused of a crime who can’t afford an attorney, like Solórzano, have the option of obtaining government-appointed counsel. This program strives to ensure that citizens with limited income are not disadvantaged in a criminal case.

Ideally, whether Solórzano has a public or private attorney shouldn’t affect the probability that judges will find him guilty. But in Costa Rica, it seems that’s not the case.

A study by Univision Data based on the analysis of 8,000 court rulings in Costa Rica found that for certain crimes, the probability that a public defender’s client will be convicted at trial increases by 12-26% compared to defendants with private attorneys.

Univision’s findings cast doubt on the belief that a criminal defendant’s economic status does not affect the istration of justice in Costa Rica. In five of the nine types of offenses analyzed – where most of the study’s cases are concentrated (75%) – judges were more likely to convict defendants with public counsel

Defendants like Solórzano, who are charged with fraud or forgery and have a government-appointed attorney, have a greater risk of being convicted. In these cases – classified as crimes against public faith, which often require an expensive and complex technical defense – the probability of conviction increases by 26% for defendants with public attorneys.

In other words, for every 100 cases of fraud in which defendants with private counsel were convicted, 126 people with public defenders were convicted of the same crime. Government-paid attorneys also have a worse record when defending clients facing charges of crimes against public authority, sexual offenses, robbery and theft. Public defenders fail to show better results than private attorneys in any of the crime categories.

The director of Costa Rica’s Public Defender’s Office, Marta Iris Muñoz, declined to discuss the results of this investigation and the problems it reveals, despite several attempts to interview her. The same is true of Zarela Villanueva, president of Costa Rica’s judicial branch.

In a written response, Villanueva’s spokesman, Roger Mata Brenes, discredited the study, saying it “is inconclusive and doesn’t produce compelling data.” He also said it’s not the institution’s responsibility to compare the performance of its public defenders with private attorneys.

“It’s not the judicial branch’s job to measure the performance of trial attorneys,” he said.

Given the lack of official information in Costa Rica that would allow for a comparison between public defenders and private defense attorneys, this study was based on unpublished data compiled over four years by a Univision Data journalist together with a team of 10 reporters and attorneys who manually extracted multiple variables from thousands of criminal court rulings between 2004 and 2013 in the Second Circuit Criminal Court in San José. More than 11,000 crimes were processed. The conclusions cannot be generally applied to all of the country’s courts.

The investigation compared the performance of public defenders and private defense attorneys in criminal cases with equal conditions: the same types of crime, the same levels of experience for attorneys, judges and prosecutors, the same genders of victims and defendants, the same types of proceedings (ordinary or expedited, a variable that reflects whether defendants faced significant evidence against them) and whether the defendants were Costa Ricans or foreigners.

In the following, you can explore the study’s methodology and limitations:

Public defenders lead in dismissals

A dismissal is a ruling that absolves a defendant from criminal responsibility. In general, they are issued without going to trial because both parties reach an agreement, the statute of limitations expires or a defendant dies, among other causes.

Univision’s investigation also found tendencies that call into question the premise that Costa Rican criminal justice is blind. For example, it reveals a decrease in the probability of conviction by judges when the defendant is a woman or a foreigner.

Each of these tendencies requires further investigation to determine the cause, but Appellate Judge Rosaura Chinchilla Calderón believes the lesser probability of conviction for women is an example of the “chivalry theory,” a criminological trend.

“Police officers, prosecutors and judges treat [women] better because of ‘pity’ or ‘chivalry,’” said Chinchilla, an attorney with 24 years on the bench, currently at the Second Circuit Criminal Appellate Court in San José.

But Chinchilla also said that in general, women on trial lack criminal records and can opt for alternative sentencing to solve their legal problems.

We also found a low likelihood of conviction when a court has three judges instead of one. Chinchilla believes that the control exercised by multi-judge tribunals is greater than that of single-judge courts.

“Together judges usually discuss and disagree on a case,” she said.

There could also be a more disconcerting explanation: “Legal training in Costa Rica is currently abysmal. The percentage of law graduates who don’t [the Costa Rican Attorneys Association] or fail the tests to is incredibly high, which is why it’s easier to convince or fool one [judge] than it is three. So, one might be tempted to convict on the facts, but not pay attention to the technical issues,” Chinchilla said.

In the following estimator you can interact with our statistical model to find out how a combination of seven factors can increase or decrease the probability of conviction in Costa Rica, according to the type of attorney.

Searching for explanations

Desperate to start trial after nearly a year in jail, Roger Solórzano decided to replace his public defender with Federico Campos Calderón, his current private attorney.
Solórzano’s wife pleaded with the pastor of her church for help, and the pastor in turn asked Campos to step in. The lawyer agreed to provide his services as an offering to the church.

Solórzano said he changed lawyers because his public defenders infrequently visited him in jail to update him on his case. He said he repeatedly called the Public Defender’s Office to complain, although registries show he was visited once a month, as required by the office’s internal rules.

“My file says that I had four public defenders, but I only personally met two,” Solórzano told Univision from jail.

According to his version, what convinced him to hire a private lawyer was a hearing last year.

“I saw how the Public Defender’s Office arrived defenseless to listen to what the prosecutor said. The judges extended my preventive detention, saying that I didn’t have a stable residence, despite the fact that I do,” Solórzano said.

Esther Barrantes Vargas was his defense attorney at that hearing, Solórzano said. She declined to speak with Univision because Solórzano has not filed a formal complaint.

If we consider the findings of this investigation, the experiences of former public defense attorneys and the crimes Solórzano is accused of, it is possible that he made a good decision finding a private attorney to represent him.

A combination of factors including a lack of resources, excessive work and a resistance in the Public Defender’s Office to broadly investigate complex cases, such as Solórzano’s, could explain the poor performance of public defenders compared to private ones, according to several judges and former public defense attorneys in Costa Rica interviewed for this story.

The only Public Defender’s Office representative who would speak with Univision Data was assistant director Alejandro Rojas, who quit his job a few weeks later, citing personal reasons. He acknowledged that the office “has no clear explanation for what is happening.”

Rojas’ main argument to justify public defenders’ disadvantage is that unlike private defense attorneys, public defenders can’t choose which cases they represent – meaning that private attorneys can reject “losing” cases and leave them to the state to defend.

“It’s a structural issue. We don’t choose anything,” Rojas said. “The cases unlikely to be won come to us. But a private defense attorney can choose and take on winning cases. That’s why our percentage of convictions should be higher. The residual cases come to us.”

Rojas acknowledged that the workload managed by public defenders could cause them to devote less time to each case than private defense attorneys, and lower their performance.

“A private defense attorney can manage 12 or 15 active cases at the same time. The commitment to each case could be an indicator to closely examine, because a public defense attorney handles more than 200 cases of all types – from homicides to theft to financial crimes,” he said.

This explanation is troubling, considering that in Costa Rica, the Public Defender’s Office has no official registry of the caseload for each of its lawyers, officials it.

In Costa Rica, no one knows how many cases each public defense attorney has. Another factor that makes uncovering this detail about attorneys’ workload important is that in Costa Rica, defense counsel is provided to anyone who solicits it, regardless of a person’s income level.

By law, the Public Defender’s Office should charge those who can afford to pay. But that rarely happens, because there is no appropriate official methodology to distinguish people’s economic status. Also, the judicial branch’s organic law only allows the government to charge for services once a ruling has been issued and confirmed. And legal processes can be extremely slow, especially if cases go to trial. It takes years for the government to collect, if it collects at all, according to Alejandro Rojas, the institution’s former assistant director.

Defendants looking to save money could take advantage of the state’s inability to collect. Criminal procedural law expert Alberto Binder said that the Public Defender’s Office’s indiscriminate service exacerbates the problem of excessive caseloads.

“This is especially true in Costa Rica, due its standard of providing public defense services to anyone who solicits them,” he said. “ My opinion is that services should be given to those who most need them. If not, the system ends up becoming inefficient,” Binder told Univision Noticias.

From 1999 to 2015, the Public Defender’s Office charged only 62 times, totaling $90,000. That money was used to buy printers, according to the institution.

Convictions that shouldn’t have happened

While our study doesn’t indicate that public defenders commit more errors than their counterparts in the private sector, problems such as excessive caseloads and lack of resources could cause errors that end up affecting defendants.

Univision identified four cases in which public defenders were careless with clients’ cases or allowed clear violations of due process. If not for the intervention of appellate judges, those defendants would have been unjustly punished.

One example is that of a Nicaraguan vagrant and alcoholic who in 2009 was sentenced by the First Circuit Criminal Court of San José to 18 months in prison for violating a restraining order filed by his former spouse, who had reported him to police for domestic abuse.

According to the case file, the man approached his ex-wife to ask for food. For that act, he was sent to prison (serving a conditional sentence), despite a law that called for a lesser sentence. His public defense attorney allowed that error to occur without objecting, and therefore preventing prison time for his client. If not for the intervention of appellate judges who detected the error, that person would have served a harsher sentence than prescribed by law.

In another case in 2011, a man surnamed Leal Castro was convicted of crashing into a police vehicle and injuring police officers who were riding as engers. His public defense attorney neglected to tell the court that Leal Castro had already been acquitted of the crime in a previous trial, when judges ruled that the accident wasn’t his fault. Therefore, he shouldn’t have been retried. Judges on the Criminal Court of Appeals discovered the error and tossed the sentence.

The Public Defender’s Office informed Univision that in these cases, the defense attorneys were not reprimanded because the judges did not ask them to be. Responding to that statement, Appellate Judge Rosaura Chinchilla, who wrote one of the rulings, said, “It’s not the responsibility of the judges to order disciplinary files created.”

From 2006 to 2015, the Public Defender’s Office issued 28 sanctions to various attorneys for problems related to their work. The institution would not identify the attorneys that were sanctioned, or the causes.

Apathy and excessive work

The apathy with which cases are investigated is one possible factor, according to criminal judge Francini Quesada Salas, who worked as a public defense attorney for 12 years.

Quesada not only is one of the public defenders with the highest percentage of exonerations in recent years, according to the database analyzed by Univision Data, but he also devoted his doctoral thesis to studying public defense strategy.

“Almost all criminal attorneys behave in this manner, but maybe you see it more with the public ones: They assume the investigation should be carried out and directed by the prosecutor’s office, and the defense is only reactionary. Defense attorneys don’t search for evidence. They wait for a prosecutor to find it and then they look it over to see how to attack,” Quesada said.

In 2000, the judge published a manual based on his research to promote more proactive public defense. He said Costa Rica’s judicial branch published it only once.

“It’s tough to follow up on this in these institutions,” Quesada said. “Ideally, that manual would be used in training new public defenders.”

Appellate Judge Rosaura Chinchilla Calderón also is concerned that government attorneys are ive and weak when it comes to the investigative phase, and part of that is due to the limitations of the Judicial Investigation Police, or OIJ.

“The OIJ doesn’t usually respond to the needs of the defense, so they created investigator positions for this purpose. But there are only a few of them,” Chinchilla said.

Federico Campos Calderón, Roger Solórzano’s current attorney, was a public defender for 10 years before moving to the private sector. He agrees there is apathy in public defense, which he partly attributes to heavy caseloads.

Campos said that while he was a government lawyer, he worked an average of 400 cases a year, while today he works about 150.

“A public defender has to go to trials and hearings all day, which prevents them from working at a desk to study each case. That’s very important in the investigative phase of a case,” Campos said.

Incentives factor into the equation

Another factor possibly influencing public defenders is their salaries. Court-appointed attorneys earn a fixed salary regardless of the time invested in a case or if they win or lose in court. Private attorneys, meanwhile, bill per hour for investigation and analysis for all of their cases. Clients also often pay financial “bonuses” if they win, which doesn’t happen with public attorneys.
Judge Francini Quesada acknowledges that this could have an important effect on the outcomes of criminal processes, especially for long and complex cases, despite the ion that some government attorneys have for their work.

“Some of us spend entire weekends preparing and studying a case without being paid for that extra work. Not all public defense lawyers do that,” Quesada said.

While this discussion continues, Roger Solórzano remains in jail waiting for a trial, but now with renewed faith in his private attorney.

“I don’t have money, but after nearly a year in preventive detention, I had to find help,” he said.

* This journalistic investigation by Univision Data also is the basis of a chapter published today, April 19, 2017, in the Second State of Justice Report by the State of the Nation Program, the most influential center of investigation in Costa Rica.

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