Yes, America, We Have Executed an Innocent Man - Andrew Cohen - National - The Atlantic
Yes, America, We Have Executed an Innocent Man
By Andrew Cohen
THE JUDGE
The statute was interpreted to direct a sentence of death even if a jury found the "aggravating" and "mitigating" sentencing factors in equilibrium -- "equipoise," the Court lyrically called it. A tie, in other words, would mean death, not life.
For the majority, Justice Clarence Thomas had bent over backward to overturn a ruling by the Kansas Supreme Court that had declared the law unconstitutional. Justice Scalia wrote a concurrence he will have to live with the rest of his life. Justice Scalia described a criminal justice system unfamiliar to anyone who has ever covered a murder case, read a book about one, or watched television news. Justice Scalia wrote:
It should be noted at the outset that the dissent does not discuss a single case -- not one -- in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby.
THE ARTICLE
The DeLuna case was flawed at virtually every level.
At 11 p.m Monday, the Columbia University Human Rights Review published and posted its Spring 2012 issue -- devoted entirely to a single piece of work about the life and death of two troubled and troublesome South Texas men. In explaining to their readers why an entire issue would be devoted to just one story, the editors of the Review said straightly that the "gravity of the subject matter of the Article and the possible far-reaching policy ramifications of its publication necessitated this decision."
The article is titled "Los Tocayos Carlos: Anatomy of a Wrongful Execution" . Los Tacayos can be translated from Spanish as "namesakes" and the two men at the heart of the story were, indeed, named Carlos DeLuna and Carlos Hernandez.. On December 7, 1989, this intense piece establishes beyond any reasonable doubt, Texas executed the former for a murder the latter had committed.
THE HISTORY
CORPUS CHRISTI, Texas -- It was a secret they all shared. Some kept it out of fear. Some because no one ever asked. Whatever their reasons, it was a secret that might have saved Carlos De Luna from the execution chamber. Twenty-three years after Wanda Lopez was murdered in the gas station where she worked, family members and acquaintances of another man, Carlos Hernandez, have broken their silence to support what De Luna had long asserted: Hernandez, a violent felon, killed Lopez in 1983.
THE STORY
Like Possley and Mills in 2006, I don't have the space here to do justice to the facts of the DeLuna case. But I will try. Carlos DeLuna was executed in December 1989 for murdering Wanda Lopez in a February 1983 robbery in Corpus Christi. A jury convicted him in an afternoon of deliberation and sentenced him to death shortly thereafter. No appellate courts came to his rescue. And the six years it took from crime to execution was surprisingly -- suspiciously -- fast; nationwide, it's usually twice that long.
THE BACKSTORY
Reading through the manuscript last weekend, jarred by what I was seeing, I began to jot down a list of things that went terribly wrong in the DeLuna case -- issues of fact, of evidence, of testimony, of motives, of incompetence, of indifference, of fraud, of morality, of integrity, of constitutionality -- that should have been raised and answered long before DeLuna was convicted, much less executed, back in the 1980s. I stopped when I got to 10. Here's the list.
1. There was no DNA or blood evidence on DeLuna despite bloody murder scene. There were no fingerprints. There was only one eyewitness and he was sketchy about what he had seen.
2. Police/prosecutors knew the whereabouts of another, more likely, suspect. But they didn't tell the defense this before or after the trial.
3. When the defendant identified the likely killer shortly before trial, the police and prosecutors did not reasonably follow up even though they knew that the man identified was capable of committing the crime.
4. Based upon early witness reports, the police at first sought another suspect. They did not share this information with the defense even though the two men (the two Carloses) looked eerily like one another.
5. The police officer collecting witness accounts relayed inaccurate and incomplete descriptions of suspects to the police dispatcher, who radioed them to officers in manhunt.
6. Police investigators botched the crime scene by turning it back to the store manager just two hours after the murder to be washed down and reopened immediately.
7. Evidence from the initial investigation was checked out by a prosecutor the day after the trial and was never returned. Any usuable DNA thus was lost.
8. The trial judge appointed a solo civil practitioner without any criminal trial experience much less any capital trial experience. The defense did not call a single "mitigating" witness in the sentencing phase of trial.
9. Police investigators did not measure a bloody footprint they photographed at the scene of the crime or test a cigarette butt they found on the floor of the store where the victim died.
10. A 9-11 dispatcher failed to quickly dispatch police to the scene of the crime, despite the fact that the victim had called for help. Later, the "manhunt tape" made by dispatchers was taped over and not turned over to the defense by the police.
What do I think happened? All of the things that go wrong every day in capital cases in this country, all of the human failings and official, institutional biases and prejudices and self-justifications and self-delusions that turn Justice Scalia's Marsh concurrence into a farce. The bottom line? The criminal justice system decided, combustibly, that Carlos DeLuna was bad enough to be executed without a remotely fair process. The community was fine with the result.
THE EXPERTS
The answer to Los Tocayos Carlos, if there can be one, is that the case is so old its failings are now outdated and irrelevant. The district attorney lobbyists will argue that capital cases, in Texas and elsewhere, are handled much more professionally today than they were 30 years ago.
But it would be a shame if we were to view the DeLuna case through the prism of legal history. There is nothing ancient about the lessons it teaches. DeLuna may be gone. But the problems his case represents still are here, in virtually every jurisdiction that still imposes capital punishment. So last week I asked some of the most prominent death penalty experts in the country to look at my DeLuna "list" and then identify pending cases that were similarly marked with such obvious reasonable doubts.
They all agreed that today in America there are plenty of more recent cases where these sorts of issues have arisen or could arise. Here are links to just a few of the cases they cited (again, I stopped at the count of 10)
D'Ambrosio v. Bagley (Ohio- faulty crime scene analysis, information withheld by law enforcement, other known viable suspects.)
Elmore v. Ozmint (South Carolina--ineffective counsel, no eyewitnesses, evidence fabricated)
Keith v. Bobby (Ohio-- no DNA, blood or fingerprint evidence, other known viable suspects)
Noling v. Bradshaw (Ohio--unreliable eyewitness identification, other known viable suspects)
Arkansas v. Howard (Arkansas -- DNA withheld)
Skinner v. Switzer (Texas -- DNA withheld following Supreme Court intervention.)
THE LESSON
On the day, sooner than you think, when the United States Supreme Court again outlaws the death penalty, the justices will almost certainly cited the DeLuna case as one of the prime reasons why. It is not the first recent instance where smart, reasonable people have compellingly proven that an innocent man was executed in Texas. And it's certainly not the first time we've read the details of a capital case where the work of government officials -- police, prosecutors, judges -- was so profoundly and consistently shoddy.
But there is something especially compelling about the DeLuna case. It's what drew Possley to it. It's what haunted the lone eyewitness for all these years. A legendary case of injustice deserved -- it needed -- a legendary treatment. And it got one. No one can ever say again with a straight face that America doesn't execute innocent men. No one.
DeLuna was reportedly slow as a child and tested as mildly mentally retarded as a juvenile. Later, he was in and out of trouble with the law until he was found (and was perhaps beaten) by the police on the night of the Lopez murder. There is great doubt even today that he fully understood the magnitude of the trouble he was in, even as he was nearing the end in 1989, which is why he made such a perfect patsy for Carlos Hernandez.
The ultimate villain of this awful story, Hernandez died in prison, in 1999, boasting to the end that he had killed Wanda Lopez and allowed another man to take the fall for it. The cops knew this. The prosecutors knew or should have known it. Witnesses knew it. And yet no one did anything to stop the state executioners from carrying out their job. Why no one listened to Hernandez for all those years, and why no one hears the cries of others today, is a question Justice Scalia and many others have to answer for themselves.
I had to edit it down to fit, but
Yes, America, We Have Executed an Innocent Man
By Andrew Cohen
THE JUDGE
The statute was interpreted to direct a sentence of death even if a jury found the "aggravating" and "mitigating" sentencing factors in equilibrium -- "equipoise," the Court lyrically called it. A tie, in other words, would mean death, not life.
For the majority, Justice Clarence Thomas had bent over backward to overturn a ruling by the Kansas Supreme Court that had declared the law unconstitutional. Justice Scalia wrote a concurrence he will have to live with the rest of his life. Justice Scalia described a criminal justice system unfamiliar to anyone who has ever covered a murder case, read a book about one, or watched television news. Justice Scalia wrote:
It should be noted at the outset that the dissent does not discuss a single case -- not one -- in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby.
THE ARTICLE
The DeLuna case was flawed at virtually every level.
At 11 p.m Monday, the Columbia University Human Rights Review published and posted its Spring 2012 issue -- devoted entirely to a single piece of work about the life and death of two troubled and troublesome South Texas men. In explaining to their readers why an entire issue would be devoted to just one story, the editors of the Review said straightly that the "gravity of the subject matter of the Article and the possible far-reaching policy ramifications of its publication necessitated this decision."
The article is titled "Los Tocayos Carlos: Anatomy of a Wrongful Execution" . Los Tacayos can be translated from Spanish as "namesakes" and the two men at the heart of the story were, indeed, named Carlos DeLuna and Carlos Hernandez.. On December 7, 1989, this intense piece establishes beyond any reasonable doubt, Texas executed the former for a murder the latter had committed.
THE HISTORY
CORPUS CHRISTI, Texas -- It was a secret they all shared. Some kept it out of fear. Some because no one ever asked. Whatever their reasons, it was a secret that might have saved Carlos De Luna from the execution chamber. Twenty-three years after Wanda Lopez was murdered in the gas station where she worked, family members and acquaintances of another man, Carlos Hernandez, have broken their silence to support what De Luna had long asserted: Hernandez, a violent felon, killed Lopez in 1983.
THE STORY
Like Possley and Mills in 2006, I don't have the space here to do justice to the facts of the DeLuna case. But I will try. Carlos DeLuna was executed in December 1989 for murdering Wanda Lopez in a February 1983 robbery in Corpus Christi. A jury convicted him in an afternoon of deliberation and sentenced him to death shortly thereafter. No appellate courts came to his rescue. And the six years it took from crime to execution was surprisingly -- suspiciously -- fast; nationwide, it's usually twice that long.
THE BACKSTORY
Reading through the manuscript last weekend, jarred by what I was seeing, I began to jot down a list of things that went terribly wrong in the DeLuna case -- issues of fact, of evidence, of testimony, of motives, of incompetence, of indifference, of fraud, of morality, of integrity, of constitutionality -- that should have been raised and answered long before DeLuna was convicted, much less executed, back in the 1980s. I stopped when I got to 10. Here's the list.
1. There was no DNA or blood evidence on DeLuna despite bloody murder scene. There were no fingerprints. There was only one eyewitness and he was sketchy about what he had seen.
2. Police/prosecutors knew the whereabouts of another, more likely, suspect. But they didn't tell the defense this before or after the trial.
3. When the defendant identified the likely killer shortly before trial, the police and prosecutors did not reasonably follow up even though they knew that the man identified was capable of committing the crime.
4. Based upon early witness reports, the police at first sought another suspect. They did not share this information with the defense even though the two men (the two Carloses) looked eerily like one another.
5. The police officer collecting witness accounts relayed inaccurate and incomplete descriptions of suspects to the police dispatcher, who radioed them to officers in manhunt.
6. Police investigators botched the crime scene by turning it back to the store manager just two hours after the murder to be washed down and reopened immediately.
7. Evidence from the initial investigation was checked out by a prosecutor the day after the trial and was never returned. Any usuable DNA thus was lost.
8. The trial judge appointed a solo civil practitioner without any criminal trial experience much less any capital trial experience. The defense did not call a single "mitigating" witness in the sentencing phase of trial.
9. Police investigators did not measure a bloody footprint they photographed at the scene of the crime or test a cigarette butt they found on the floor of the store where the victim died.
10. A 9-11 dispatcher failed to quickly dispatch police to the scene of the crime, despite the fact that the victim had called for help. Later, the "manhunt tape" made by dispatchers was taped over and not turned over to the defense by the police.
What do I think happened? All of the things that go wrong every day in capital cases in this country, all of the human failings and official, institutional biases and prejudices and self-justifications and self-delusions that turn Justice Scalia's Marsh concurrence into a farce. The bottom line? The criminal justice system decided, combustibly, that Carlos DeLuna was bad enough to be executed without a remotely fair process. The community was fine with the result.
THE EXPERTS
The answer to Los Tocayos Carlos, if there can be one, is that the case is so old its failings are now outdated and irrelevant. The district attorney lobbyists will argue that capital cases, in Texas and elsewhere, are handled much more professionally today than they were 30 years ago.
But it would be a shame if we were to view the DeLuna case through the prism of legal history. There is nothing ancient about the lessons it teaches. DeLuna may be gone. But the problems his case represents still are here, in virtually every jurisdiction that still imposes capital punishment. So last week I asked some of the most prominent death penalty experts in the country to look at my DeLuna "list" and then identify pending cases that were similarly marked with such obvious reasonable doubts.
They all agreed that today in America there are plenty of more recent cases where these sorts of issues have arisen or could arise. Here are links to just a few of the cases they cited (again, I stopped at the count of 10)
D'Ambrosio v. Bagley (Ohio- faulty crime scene analysis, information withheld by law enforcement, other known viable suspects.)
Elmore v. Ozmint (South Carolina--ineffective counsel, no eyewitnesses, evidence fabricated)
Keith v. Bobby (Ohio-- no DNA, blood or fingerprint evidence, other known viable suspects)
Noling v. Bradshaw (Ohio--unreliable eyewitness identification, other known viable suspects)
Arkansas v. Howard (Arkansas -- DNA withheld)
Skinner v. Switzer (Texas -- DNA withheld following Supreme Court intervention.)
THE LESSON
On the day, sooner than you think, when the United States Supreme Court again outlaws the death penalty, the justices will almost certainly cited the DeLuna case as one of the prime reasons why. It is not the first recent instance where smart, reasonable people have compellingly proven that an innocent man was executed in Texas. And it's certainly not the first time we've read the details of a capital case where the work of government officials -- police, prosecutors, judges -- was so profoundly and consistently shoddy.
But there is something especially compelling about the DeLuna case. It's what drew Possley to it. It's what haunted the lone eyewitness for all these years. A legendary case of injustice deserved -- it needed -- a legendary treatment. And it got one. No one can ever say again with a straight face that America doesn't execute innocent men. No one.
DeLuna was reportedly slow as a child and tested as mildly mentally retarded as a juvenile. Later, he was in and out of trouble with the law until he was found (and was perhaps beaten) by the police on the night of the Lopez murder. There is great doubt even today that he fully understood the magnitude of the trouble he was in, even as he was nearing the end in 1989, which is why he made such a perfect patsy for Carlos Hernandez.
The ultimate villain of this awful story, Hernandez died in prison, in 1999, boasting to the end that he had killed Wanda Lopez and allowed another man to take the fall for it. The cops knew this. The prosecutors knew or should have known it. Witnesses knew it. And yet no one did anything to stop the state executioners from carrying out their job. Why no one listened to Hernandez for all those years, and why no one hears the cries of others today, is a question Justice Scalia and many others have to answer for themselves.
I had to edit it down to fit, but