A Tale of a Third Costa Rican Murder Trial

John Bender was a highly successful Wall Street trader and Hedge Fund manager. He and his wife Ann moved to Costa Rica in 2000 to set up a nature reserve. They built an extravagant home in the Costa Rica Jungle. It was in the bedroom of this home at 12:15 on 8th January 2010, that John Bender died as the result of a single gunshot to the head. Ann Patton was the only other person present in the bedroom. She immediately called their security team for help using a radio that was in the bedroom and when a security guard arrived he found her kneeling on the ground next to John Bender’s body.

The Costa Rican Police Investigators did not attend the scene until 5:00am. Later that same day Ann Patton gave the Investigators a statement in which she said that she had attempted to prevent her husband from taking his own life but was unable to do so. John Bender had documented mental health difficulties, and was suffering from suicidal tendencies in the months leading up to his death.

The Procedural history

Ann Patton was first tried for John Bender’s murder in January 2013. She was acquitted. The prosecution appealed and the acquittal was set aside on the basis that the trial court had wrongly assessed the evidence. At her second trial in May 2014 she was found guilty and sentenced to 22 years in prison. She appealed against the conviction and in February 2015 the appellate court quashed the conviction and ordered that a third trial take place.

Ann Patton’s case has generated significant media attention in the United States. The CBS news magazine show “48 hours” made a documentary about her case before the second appeal in February 2015. CBS also sent a news crew to Costa Rica to cover the third trial.

The Prosecution case

The prosecution case was that this was not a suicide. Ann Patton was the only person able to fire the shot, meaning that she must be guilty of murder. They relied upon circumstantial evidence and expert testimony to prove their case.

In particular the prosecution relied upon the following factors in order to prove that John Bender did not fire the shot:

• The location of the wound at the back of his skull.
• The trajectory of the bullet which went toward the upper front left part of his skull.
• The fact that this was not a contact shot.
• The position of the body at the time of death as shown by subsequent photographs.
• The position of the body as shown by blood pattern analysis.
• The position of the gun which was on the left of the bed whereas the wound was on the right.

The prosecution case was reliant upon the evidence of the forensic pathologist who conducted the post mortem and a ballistic expert who was originally added to the list of witnesses by the Defence.

The Defence

Ann Patton’s case was presented by Fabio Oconitrillo a Costa Rican lawyer. He was assisted by Sonia O’Donnell a partner in a law firm in Miami. Stephen Baker a barrister based in Jersey and Gary Pons of 5 St Andrews Hill. Selma and Richard Eikenelbloom world renowned experts in forensic pathology, ballistic and blood pattern analysis were instructed by the Defence. Ann Patton’s case was that this was a suicide. The forensic pathology, ballistic and blood pattern evidence were equally consistent with her account of suicide.

Costa Rican System

The Costa Rican criminal justice system is different from a common law system. There is no jury trial in Costa Rica rather the case is determined by three judges. Evidence is presented to the tribunal by live witnesses and by a bundle of documentary evidence that is agreed in advance of the hearing. There is little restriction on hearsay evidence. Cross examination cannot include leading questions. An expert can be appointed by the Court as a technical consultant to ask questions of other expert

The Trial

Ann Patton was acquitted on Monday 7th September 2015, by unanimous vote of the three-judge panel. Their written decision revealed that in their view the prosecution experts had failed to consider Ann Patton’s account of what had occurred when assessing factors such as the location of the wound and the trajectory of the bullet. The prosecution evidence lacked sufficient clarity to be capable of ruling out suicide.

Conclusion

In 2010 a Costa Rican law abolished the prior restriction on a third trial where the previous two trials had both resulted in acquittals. That law has since been ruled to be unconstitutional. It may however still be open to argument whether that decision only relates to consecutive acquittals. The prosecution have given every indication that they will seek to argue that the second acquittal should be set aside. If it is decided that only two consecutive acquittals prevent a retrial then Ann Patton could face a fourth trial.

Gary Pons is a barrister at Five St Andrews Hill. He is fluent in Spanish and studied Law at the Complutense University in Madrid. He joined Ann Patton’s Defence Team for her third trial. He assisted in the preparation of the questions that Richard Eikelenboom, the technical consultant, asked the prosecution’s expert witnesses.