Tuesday, December 12, 2017
Opinion

When the state kills the innocent

If you're reading this in a comfortable, middle-class home, what happened to Carlos DeLuna almost certainly could never happen to you. But everyone should care about DeLuna's story because it lays bare America's broken "machinery of death," to quote U.S. Supreme Court Justice Harry Blackmun. After decades on the bench, Blackmun finally stopped upholding death sentences. He said the potential for error is too great in a system "fraught with arbitrariness, discrimination, caprice and mistake.''

DeLuna was a poor, Hispanic "nobody" with a criminal record who was executed in Texas for a crime he didn't commit. Had DeLuna enjoyed some scintilla of status, wealth or power, he likely would have been exonerated and the real murderer charged. But the system in Texas does not go out of its way for people like DeLuna. He was put to death in 1989 for the 1983 knife slaying of Wanda Lopez at a convenience store where she worked in Corpus Christi, Texas.

When DeLuna was arrested a short time after the murder, there wasn't a microscopic drop of blood on his clothes or shoes, despite a crime scene where Lopez's blood was splattered on walls and pooled on the floor. A man's bloody footprint at the scene was never measured by detectives to find a match.

Had police, prosecutors or defense lawyers done their job, they would have quickly uncovered evidence pointing to Carlos Hernandez. Hernandez was a knife-toting violent felon who told multiple witnesses that he had committed the Lopez crime. But no one seriously investigated DeLuna's unflappable protestations of innocence or his later claims that Hernandez was the culprit, leaving Hernandez free to brutalize others. Hernandez eventually died in prison in 1999 of cirrhosis.

DeLuna's case is back in the news because of the indefatigable detective work by Columbia Law School professor James Liebman and a team of students. They spent six years interviewing more than 100 witnesses and reviewing every piece of evidence. Now their findings are compiled into a book-length spring edition of the Columbia Human Rights Law Review, titled Los Tocayos Carlos: An Anatomy of a Wrongful Execution. (Available in full here: tinyurl.com/tbtimes-execution.) In Spanish "tocayo" means namesake or twin. Hernandez joked that his "stupid tocayo," DeLuna, was taking the fall for him. The two looked strikingly similar.

DeLuna was put to death by a fallible system. Whatever you might think of capital punishment, at least everyone should be on the side of never executing the innocent. DeLuna is but one example of justice gone wrong. The case of Cameron Todd Willingham is another. Willingham was executed in Texas in 2004 for an arson that killed his three young children. An independent review indicated that the state relied on faulty fire science to convict.

These kinds of cases should make anyone rethink this country's prolific use of the death penalty. The punishment has been abolished throughout Europe, except Belarus, and some Americans in blue states are finally losing their taste for it. Connecticut repealed its death penalty in April, after Illinois did so last year. Thirty-three states, including Florida, still have the death penalty. Californians will be voting on eliminating theirs in November.

Miscarriages of justice like DeLuna's happen far more often than they are unearthed. A national registry of exonerations recently launched by the University of Michigan and Northwestern law schools lists more than 2,000 people who were wrongly convicted of serious crimes since 1989, undoubtedly a small percentage of those who have suffered this fate. On the list are more than 100 people who were given the death penalty.

In 2006, Supreme Court Justice Antonin Scalia used the fact that mistaken convictions have been uncovered to defend America's death penalty. He declared with relish that the system of procedural safeguards works since no innocent person, "not one," has been put to death. If there has, Scalia wrote, "we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby."

CARLOS DELUNA, Justice Scalia. CAMERON TODD WILLINGHAM. Two men whose stories should make everyone conclude, as Justice Blackmun did, that America's death penalty experiment has failed.

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