The Execution of Carlos DeLuna: Preventing Wrongful Convictions

Boston Review:

Last September, during a Republican presidential primary debate in Simi Valley, California, moderator Brian Williams pressed Texas Governor Rick Perry on his unequivocal support for the death penalty. Perry had presided over 234 executions—more than any governor in modern times—Williams noted. The crowd burst into applause. When the noise died down, Williams continued, “Have you struggled to sleep at night with the idea that any one of those might have been innocent?”

“I’ve never struggled with that at all,” Perry responded. “The state of Texas has a very thoughtful, a very clear process in place. When someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States if that’s required.”

The exchange went viral the next day. Liberals raged against what they perceived to be Perry’s and the crowd’s insensitivity to human life. Conservatives rallied behind Perry’s conviction that the capital punishment is a just response to a heinous crime. A month after the debate, polling by Gallup found that 61 percent of Americans approved of using the death penalty for murderers.

That’s a substantial majority, but the figure used to be much higher. In 1994, 80 percent of the country supported the death penalty for a convicted murderer. By the turn of the century, that number had fallen to the mid-sixties. Last year’s result represented the lowest level of support since 1972, when the Supreme Court ruled that state death penalty statutes, as they were being applied, violated the Eighth Amendment’s ban on cruel and unusual punishment.

Advances in forensic science and recent exonerations of convicts have contributed to a political push to abolish the death penalty. Since 1989, when DNA evidence was first used to exonerate a prisoner, 299 others in 35 states and the District of Columbia have relied on DNA evidence to prove their innocence, in some cases while sitting on death row. The vast majority of these exonerations have occurred within the past decade. Recent years have also witnessed a number of high profile death penalty cases where substantial doubt exists about the guilt of the executed. In 2009, for example, The New Yorker chronicled the case of Cameron Todd Willingham, a Texas man who was convicted of murdering his children by setting their home on fire, and revealed that the arson expert who testified against Willingham based his opinion, which was central to the conviction, on what is now widely considered to be junk science. More recently, supporters of Troy Davis, a Georgia man executed for the murder of a police officer, argued his innocence publicly and vociferously after seven of the nine non-police witnesses who testified against him recanted.

A number of politicians have been moved to action by similar stories and the concerns they raise about the effectiveness of their state’s justice system. In April, Connecticut became the seventeenth state, and the fifth in the last five years, to repeal its death penalty statute.

Despite this trend, one rhetorical point has persisted for death penalty advocates: if the judicial system were so bad, and innocents were being killed, we surely would have heard about it by now. “We would not have to hunt for it,” Justice Antonin Scalia said recently, “the innocent’s name would be shouted from the rooftops.” We have heard of innocents being released, the argument goes, but it has never been clear that the state has executed an individual for a crime he or she did not commit.

That is, until now.

In May, the Columbia Human Rights Law Review dedicated an entire issue to the story of Carlos DeLuna, who was executed by the state of Texas in 1989. The article, “Los Tocayos Carlos: An Anatomy of a Wrongful Execution,” forthcoming as a book, runs 434 pages long, reads like Truman Capote’s In Cold Blood, and is groundbreaking in its detail and scope. Its conclusion: Texas murdered an innocent man.
On the evening of February 4, 1983, a man walked into the Sigmor Shamrock gas station in Corpus Christi, Texas and stabbed the attendant, 24-year-old Wanda Lopez, to death. Just prior to the attack, Lopez called 9-1-1, and the dispatcher heard her last words: “You want it? I’ll give it to you. I’m not gonna do nothing to you. Please!!!!”—and then a scream. A lone witness, who happened to be filling his tank at the time of the crime, looked the assailant in the eye as he fled. The police reached the scene in less than three minutes, and a manhunt ensued. Thirty-seven minutes later, two policemen found DeLuna, who had recently been released from prison after serving two and a half years of a three-year sentence for attempted rape, cowering under a truck near the gas station and smelling of beer. DeLuna’s first words upon being found would be his refrain until the day he died: “I didn’t do it, but I know who did.” The police handcuffed DeLuna, placed him in their cruiser, and brought him to the scene of the crime. There, they flashed a light on him as he sat shackled in the backseat and showed him to the witness, who confirmed the officers’ suspicion: DeLuna was their guy. The case seemed clear cut. The police turned the matter over to the prosecutor’s office, which sought the death penalty.

DeLuna’s prosecutor checked out all of the evidence used at trial. It has been missing ever since.

As the authors of “Los Tocayos Carlos” document, the case for DeLuna’s guilt disintegrates even upon minimal review. At every turn, all of the essential players in the criminal justice system—police, prosecutors, defense counsel, and judges—failed completely, preventing DeLuna from receiving a trial that was, in any sense, fair and just. The missteps were too numerous to catalog here, but a few stand out:

• During the manhunt, a police dispatcher provided contradictory information about the assailant’s appearance, clothing, and the direction he was seen running. The dispatcher’s information was based, in part, on statements made by three additional witnesses: one was on site shortly before the murder and reported seeing a man with a knife outside the gas station; two others reported seeing a man running in the street shortly thereafter. Their descriptions conflicted dramatically, suggesting that they had seen different people. The dispatcher cobbled together a composite sketch that bore little resemblance to any of the witnesses’ identifications. The police accidentally erased the tape of the dispatcher’s commentary and never disclosed its existence to defense counsel. More than twenty years later, the Columbia team’s investigator contacted the dispatcher and learned that he had made a copy of the tape for himself and still had it in his possession.
• The police took pictures of the bloody crime scene but failed to disclose many of them to defense counsel. A picture of a bloody footprint remained under wraps and the footprint was never compared to DeLuna’s.
• The police botched the process for gathering finger prints, rendering their results unusable, and failed to recover from the crime scene items, such as a burned cigarette and a wad of chewed gum, that may have yielded forensic evidence. They did not take any blood samples from the scene and did not scrape the victim’s fingernails for traces of the perpetrator’s skin or blood.
• The police concluded their on-site investigation within two hours of the crime and then turned the store over to its owner, who washed it down, destroying all remaining evidence of the crime, so he could reopen in the morning.
• Months before trial, a police detective began hearing rumors from sources on the street that a man named Carlos Hernandez had actually killed Lopez. This was never disclosed to defense counsel.
• When, before trial, DeLuna overcame his fear of reprisal and named Carlos Hernandez as the killer, prosecutors claimed they had never heard of him and later reported to the court that, after an investigation, they could not locate anyone by that name. In fact, the police had brought Hernandez, who closely resembled DeLuna, in on an outstanding traffic warrant three months prior to trial, after finding him standing behind a 7-Eleven with a knife in his pocket. This was never disclosed to defense counsel.
• Three years earlier, in 1980, one of DeLuna’s prosecutors had tried a man charged with stabbing a young woman to death with a buck knife and then carving the letter “X” into her back. During that trial, which resulted in an acquittal, defense counsel argued that Carlos Hernandez was the real killer, and presented evidence that Hernandez owned a buck knife, talked about and displayed the knife frequently, had a history of violence against women, and wanted payback against the victim for having slept with his sister’s husband. This was never disclosed to defense counsel. (In 1986, the police arrested Hernandez for the murder after learning that he had admitted his guilt to a girlfriend. The charges were ultimately dismissed when the same prosecutor who led the trial against DeLuna failed to produce court-ordered discovery to defense counsel.)
• The day after DeLuna was convicted, this same prosecutor checked out all of the evidence used at trial. It has been missing ever since.

These and others failures were so important because the prosecution’s case had serious problems to begin with. DeLuna had no blood on him when found by police, even though copious amounts were left at the crime scene. No other forensic evidence linked him to the crime. He did not have a weapon. He had no motive. He had no need for money, since he had just been paid by his employer that day. He did not have a relationship with the victim. The prosecution relied merely on DeLuna’s proximity to the crime, the fact that he was found hiding under a truck and smelling of beer, his criminal history, a cross-racial identification by a lone eyewitness who saw the assailant for a few seconds at night outside of a gas station, and, finally, Lopez’s dramatic last utterances, which the prosecution played repeatedly. Apart from DeLuna’s own testimony, the jury never heard a word about Hernandez, whom prosecutors dismissed as a “phantom.”…

Read it all.

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