We publish a short essay by former President Miguel Ángel Rodríguez untitled "Bad Faith and Errors in Criminal Judgments". It is a reflection about the lessons to be learned, for the Costa Rican circumstances, from the Op-Ed article "The Presence of Malice" ("Con mala intención"), originally divulged by The New York Times on August 2, 2007 and made public by Juicio Justo in Costa Rica:

Miguel Ángel Rodríguez E.

The New York Times Op-Ed piece recently published by Richard Moran (click here), has an impact on our perception of the Justice System when he points out: “My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel. (There were four cases in which a determination could not be made one way or another.)”

This conclusion is similar to the one provided by John Grisham in his recent book The Innocent Man, wherein he describes the actual occurrence of a death sentence against an innocent person, arising from bad faith. In an explanatory note by the author at the end of the book, Grisham advises us that unjust sentences are not an event peculiar to the Oklahoma case narrated in the book. “Unjust sentences - he tells us - occur every month in every State of the Union (United States); they are varied and always arise from the same grounds: bad police work, junk science, false identification by witnesses, bad defenders, lazy prosecutors, arrogant prosecutors”.

Of course, these wrongful convictions and the related errors are particularly malicious when the death penalty makes it impossible to correct the error. But all cases should move us to always act to defend the rule of law and due process.

First of all, it is essential to rigorously defend criminal procedures that respect those norms that experience has shown us are protective of the innocent. Secondly, it is indispensable to be both cautious and rigorous in selecting those individuals responsible for the application of these norms, especially those with the greatest power, such as, in our case, the Attorney General (Fiscal General), after the erred procedural reforms of 1996. In third place, however, it is crucial that the Supreme Court, the Criminal Chamber, and the Constitutional Chamber should always be available to thoroughly revise the procedures applied and be rigorous in the defense of human rights.

The reform of criminal process, although insufficient on its own, is necessary and indispensable to eliminate the role of the Attorney General’s Office as director of the investigations, as well as to set definitive time limits to the procedures, to determine clearly the rights to appeal, to regulate on a restrictive basis the use of codefendant’s incriminatory declarations and the application of precautionary measures. Neither is it enough to adequately select the head of the Attorney General’s Office. What is required in any event is full efficacy of constitutional guarantees in the defense of human rights.