Investigating an Execution

A fresh look at the evidence used to convict and justify the execution of Carlos DeLuna more than 20 years ago reveals that there is more to his story than meets the eye

By James S. Liebman

Spring 2012

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Has Texas executed an innocent man since it began lethally injecting convicted murderers in 1982 after an 18-year hiatus in executions? How certain must we be that this ultimate miscarriage of justice has occurred before addressing its implications for our criminal justice system and ourselves as moral human beings? How should lawyers and legal scholars engage the public on these issues, and what role can law students and law reviews play?

This spring, a group of Columbia Law School students and I invite the broader public to join us in grappling with these questions. The student editors of the Columbia Human Rights Law Review (HRLR) have devoted the spring 2012 issue of the journal to Los Tocayos Carlos, a book-length narrative by student co-authors and me that culminates with Texas’ December 7, 1989, execution of 26-year-old Carlos DeLuna. (The issue was published on May 15. My co-authors are Shawn Crowley, Lauren Gallo, Lauren Rosenberg, and Daniel Zharkovsky, Class of 2011; and Andrew Markquart, who graduated this spring.)

A Corpus Christi, Texas, jury sentenced DeLuna to die after hearing a chilling recording of the death throes of a store clerk named Wanda Lopez. A lone male stabbed and beat Lopez to death while she was on the phone with 911 reporting a Hispanic man with a knife in her store. DeLuna’s execution six years later was Texas’ 33rd in the modern era, a number that has since risen to 481.

Our story is the result of an investigation that an earlier cohort of Columbia Law School students and I began in 2004. At the time, all we had to go on was the thinness of the evidence against DeLuna—mainly a single, nighttime, cross-ethnic eyewitness identification—and Carlos DeLuna’s own claim at trial that he had seen a man named Carlos Hernandez commit the crime.

The lead prosecutor at DeLuna’s trial labeled Hernandez a “phantom,” and a federal district judge rejected DeLuna’s habeas corpus petition based in part on his assumption that Carlos Hernandez likely never existed. DeLuna’s own lawyers disbelieved his claim, didn’t investigate it, and left every state and federal appellate court to review his capital verdict to approve it under the impression that guilt was conceded.

When I asked experts to help me identify a case to investigate post mortem, a respected innocence scholar rejected DeLuna’s case, calling his “some other dude named Carlos did it” defense a laugher. I decided to fund a half day of investigation anyway, but only because Peso Chavez, one of our crackerjack investigators, planned to be in Corpus Christi for another reason and had a few hours to spare.

By dint of some luck and Chavez’s uncanny instincts, it happened that the first person he interviewed about the two Carloses—a witness whose name was mentioned in passing in DeLuna’s trial transcript—turned out to be the only person in the world with family ties to both DeLuna and Hernandez. The witness had tantalizing information about both men.

From that half-day happenstance came a multitude of discoveries. Carlos Hernandez not only existed but also was a serial abuser and knifer of young Hispanic women; confessed to a number of murders for which he was never convicted and believed he was “untouchable”; was well known to the lead detective and co-prosecutor in Carlos DeLuna’s case, both of whom stayed silent when their colleague told the jury that Hernandez was a “phantom”; and looked enough like Carlos DeLuna—whom Hernandez called his “tocayo,” meaning namesake or twin—that relatives of both men mistook pictures of one for the other.

The attending chaplain believes Texas botched DeLuna’s lethal injection, leaving him to suffocate to death while paralyzed but awake.

The biggest tragedy of all befell Wanda Lopez, a single mother struggling to make ends meet working nights, alone and unprotected, in a convenience store across from a strip joint.  Had the police taken her 911 call seriously enough when it first arrived, they could have saved her and caught her attacker. Had they taken her death seriously enough to investigate it thoroughly, they could at least have left her survivors with the assurance that justice was done, and perhaps kept from placing other innocent people at risk of life and limb.

All of this is to say that the case presents a microcosm of criminal and capital justice in the U.S. But rather than presenting our own didactic views about what happened and what it means, my co-authors and I present the story as best we can tell it, and invite readers of all stripes to consider for themselves what happened and how concerned we should be about it.

In a milestone for student-run legal journals, HRLR’s editors are presenting the narrative in a format that is fully accessible to lay readers, while providing a website where those with a deeper interest can link from each sentence to supporting documentation from hundreds of pages of law enforcement and other primary documents, an astonishing set of police photographs, notes from dozens of witness interviews, and audio- and videotapes of several of the most important interviews.

I won’t tell readers of this magazine how Los Tocayos Carlos comes out. Instead, we invite you to reach your own conclusions by reviewing the  story in print and online.

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On May 17, 2012 at 8:24 PM, James wrote:

There MUST be a criminal investigation into this. To not investigate this is to not investigate a murder of a man carried out by the state. It would send the message that Texas is above the law. This will not stand.

On May 18, 2012 at 11:48 PM, Mel wrote:

If the prosecutors and other parts of the "justice" system would be held liable financially and with jail time for their negligence the system would improve. The death penalty cases are the tip of the iceberg where the whole system from police, lawyers, prosecutors, jurors, judges and real appeals of facts would be addressed. There is overcrimilization of youth, lack of real probation, blatant perjury and it goes on and on. There are three sides to a trial: the defence, the prosecutor and the truth.

On May 25, 2012 at 6:45 AM, Cheryl wrote:

This is a very bad call of justice. I always thought if someone could possibly prove another person was at a scene, at least their own lawyers would investigate. His own Lawyers didn't believe him when he talked about "Carlos". The stateof Texas should be held accountable for this man's death & take car sof his family for the next twenty years.

On June 06, 2012 at 2:07 PM, murphy wrote:

The facts of this case appear to be so outrageous that it's terrifying to think that the researcher only found it on chance. Suppose Chavez wasn't in Corpus Christi on other business or didn't have a few hours to spare. Would this have been missed by history as a possibly heinous miscarriage of justice?

On June 06, 2012 at 4:25 PM, Doris wrote:

The effectiveness of DeLuna’s defense counsel is clearly a traceable failure. Defense counsel's refusal to believe his/her own client and resultant refusal to investigate a possible defense should be deemed unethical if not blatant malpractice.

On June 13, 2012 at 5:59 AM, Robert S. Hammer '64 wrote:

Most of my legal career was with the State of NY; first as an assistant attorney general and, later, as a principal law clerk in the Court of Claims. I defended claims brought under the Unjust Conviction and Imprisonment Act and assisted judges in their adjudication. Even where judges are fair, prosecutors behave ethically, witnesses do not deliberately lie and defense counsel is competent, mistakes are made and innocent persons are convicted. This is as good a reason as any to abolish capital punishment.

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