The Atlantic, on May 14, published an account of Carlos DeLuna who was put to death back in December of 1989 for a murder that occurred in Corpus Christi. It was a crime that he did not commit but shows the depths of the problems with capital punishment.
This case is most notable from our perspective for a key reason. On June 27, 2006 “Chicago Tribune reporters, Steve Mills and Maurice Possley, published the last of a three-part, groundbreaking series about the legal and factual problems with the DeLuna case.”
The two men would win the Pulitzer Prize in 2008 for their series. On July 26, 2012, Maurice Possley will be our keynote speaker at our event, “Ending the Death Penalty in California.“
The article the Atlantic cites is the third in that series entitled, “The Secret That Wasn’t.”
They quote: “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.”
They add: “A Tribune investigation has identified five people who say Hernandez told them that he stabbed Lopez and that De Luna, whom he called his “stupid tocayo,” or namesake, went to Death Row in his place. They also say he admitted killing another woman, in 1979, a crime for which he was indicted but never tried. Although some aspects of De Luna’s actions on the night of Lopez’s killing remain suspicious, the Tribune uncovered substantial evidence that undermines his conviction.”
Andrew Cohen, the author of the Atlantic piece, writes, “I met Possley while we were both covering the McVeigh bombing trial. That was before his groundbreaking work a decade ago exposing the arbitrary and capricious nature of the death penalty in Illinois.”
He adds, “Last year, when Illinois ended its experiment with capital punishment, it was in large part because of the Tribune and the work of Mills, Possley and fellow reporter Ken Armstrong.”
Mr. Cohen was curious as to why the reporters chose the DeLuna case.
Mr. Possley responded, “When I reflect back on the series, what I think about most is how this case was a sensational case in a small arena. It didn’t play out on a national stage and it happened so quickly — so little time between arrest, conviction and execution. I remember that what really got me interested in the case was seeing the crime scene photos with all of the blood and then learning that there was no blood on DeLuna. It just didn’t seem possible that he committed such a crime and was caught so quickly and had no blood on his clothing. That fact was so startling to me.”
He adds, “I really haven’t changed my view of the case from back then. I thought it was a colossal, global failure of every corner of the criminal justice system. The media failed to question the case (not unusual in smaller markets where police and prosecutors are the best sources) as well.”
There is a new piece, soon to be published as a book, that appeared in the Columbia Human Rights Law Review (at Columbia University) which published and posted in its Spring 2012 issue a single article “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.”
Mr. Cohen writes, “The Review article is an astonishing blend of narrative journalism, legal research, and gumshoe detective work. And it ought to end all reasonable debate in this country about whether an innocent man or woman has yet been executed in America since the modern capital punishment regime was recognized by the Supreme Court in 1976. The article is also a clear and powerful retort to Justice Scalia in Kansas v. Marsh: Our capital cases don’t have nearly the procedural safeguards he wants to pretend they do.”
“The article itself now available on the web in its entirety (at www.thewrongcarlos.net) but so are all of its supporting materials. “The web version of the Article contains approximately 3,469 footnotes,” the Review editors tell us, which in turn “provide hyperlinks to view the cited sources,” including a great deal of the evidence relevant to the case. Now, everyone in the world who is interested can learn how bad it all can go when human beings try to administer what’s supposed to be a fair, just and accurate death penalty,” Mr. Cohen continues.
He explains that back in 2006, Mr. Possley and Mr. Mills received new information that was not previously available and now Mr. Liebman and colleagues have information that back in 2006 was not available to the Chicago Tribune writers.
Mr. Possley told the Atlantic Monthly that the new piece “takes a giant step beyond our reporting because it’s such a comprehensive and detailed account” of the DeLuna case.
Writes Mr. Cohen, “It was Liebman who first came to Possley and Mills, in November 2005, to see if the two veteran journalists couldn’t independently investigate what his own team had discovered about the two Carloses. The resultant series became a finalist that year for a Pulitzer Prize in National Reporting.”
In the epilogue to the new book, Mr. Liebman writes, “With the publication of this book, we make our voices heard. At the same time, we have attempted to present the case so that our readers can consider the evidence for themselves, reach their own conclusions about what happened, and let their own consciences dictate how much tolerance for doubt is allowable when human life is on the line. Whatever else is true, we owe it to the Carlos DeLunas of our nation, as well as the Wanda Lopezes, to ask these questions and to shout out the answers.”
The article in the Atlantic notes that they do not have space to do justice to the facts of the case, and this article is not going to attempt to replicate that either.
Mr. Cohen, however, writes briefly: “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.”
Mr. DeLuna amazingly was executed within six years of the crime – those who believe we can have a justice system that works fast need to understand that this speed led to the unthinkable – the execution of an innocent man.
Mr. Cohen notes: “Texas convicted and executed DeLuna, all right, despite the fact that there was no blood or DNA evidence linking him to the scene of the crime. The state executed him despite the fact that the only eyewitness to the crime identified DeLuna while the suspect was sitting in the back of a police car parked in a dimly lit lot in front of the crime scene. Texas executed him despite the lack of DeLuna’s fingerprints at the crime scene and the lack of the victim’s hair and fibers on DeLuna. From a bloody scene, there was nothing.”
“Texas convicted and executed DeLuna despite the fact that the police and prosecutors knew or should have known that Lopez’s real murderer was a man named Carlos Hernandez, a violent criminal who looked almost exactly like DeLuna. Why? Because Hernandez was known to use the sort of knife used as the murder weapon. Because he matched initial descriptions of the suspect. Because he was known to be violent toward women. Oh, and because he evidently couldn’t stop bragging about how he had murdered Lopez and gotten someone else to take the fall for him.”
“… [It] is no overstatement to call it ‘common knowledge’ in 1980s Corpus Christi that Carlos Gonzalez Hernandez killed Wanda Lopez,” Mr. Cohen quotes from the book.
He adds, “Yet Texas executed DeLuna despite the fact that key evidence in the case went missing both before and after trial; that DeLuna initially was appointed a lawyer without criminal law experience; and that law enforcement failed to provide the defense with exculpatory evidence. Any one of these factors might warrant a new trial. Taken together they portray appalling injustice.”
Mr. Cohen then creates a list of things that should have been raised and answered prior to Mr. DeLuna’s execution back in 1989:
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.
I recommend you read the full story in the Atlantic.
I also recommend that you come to listen to Maurice Possley speak at our event in July and tell you a first-hand account of this story and how it came to be.
Anyone who believes that innocent people have not been executed needs to read this story over and over again.
Andrew Cohen concludes: “On the day, sooner than you think, when the United States Supreme Court again outlaws the death penalty, the justices will almost certainly cite 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.”
He adds: “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. Barry Scheck told me Friday: ‘If Carlos DeLuna were still alive, [the Article] would form the basis of a habeas petition that would have exonerated him.’ “
—David M. Greenwald reporting
