Antonin Scalia once said that no one had ever been executed in the US for a crime they didn't commit. Well, the Columbia Human Rights Law Review is devoting its entire spring issue to the case of Carlos DeLuna, who was executed by the state of Texas in 1989 for the murder of Wanda Lopez. Their investigation reveals that another Carlos, Carlos Hernandez, actually committed the murder.
Many other glaring discrepancies also stand out in the DeLuna case. He was put on death row largely on the eyewitness testimony of one man, Kevan Baker, who had seen the fight inside the Shamrock and watched the attacker flee the scene.
Yet when Baker was interviewed 20 years later, he said that he hadn't been that sure about the identification as he had trouble telling one Hispanic person apart from another.
Then there was the crime-scene investigation. Detectives failed to carry out or bungled basic forensic procedures that might have revealed information about the killer. No blood samples were collected and tested for the culprit's blood type.
Fingerprinting was so badly handled that no useable fingerprints were taken. None of the items found on the floor of the Shamrock - a cigarette stub, chewing gum, a button, comb and beer cans - were forensically examined for saliva or blood.
There was no scraping of the victim's fingernails for traces of the attacker's skin. When Liebman and his students studied digitally enhanced copies of crime scene photographs, they were amazed to find the footprint from a man's shoe imprinted in a pool of Lopez's blood on the floor - yet no effort was made to measure it.
"There it was," says Liebman. "The murderer had left his calling card at the scene, but it was never used."
Even the murder weapon, the knife, was not properly examined, though it was covered in blood and flesh.
Other photographs show Lopez's blood splattered up to three feet high on the walls of the Shamrock counter. Yet when DeLuna's clothes and shoes were tested for traces of blood, not a single microscopic drop was found. The prosecution said it must have been washed away by the rain.
Awful. See also Cameron Todd Willingham.
Cameron Todd Willingham was convicted of intentionally starting a fire that killed his three children, sentenced to death, and after many failed appeals, executed by lethal injection. Now it appears that the investigators who made determination of arson were acting more like forensic mystics than forensic scientists in making their decision. The state of Texas may have executed an innocent man.
In recent years, though, questions have mounted over whether the system is fail-safe. Since 1976, more than a hundred and thirty people on death row have been exonerated. DNA testing, which was developed in the eighties, saved seventeen of them, but the technique can be used only in rare instances. Barry Scheck, a co-founder of the Innocence Project, which has used DNA testing to exonerate prisoners, estimates that about eighty per cent of felonies do not involve biological evidence.
In 2000, after thirteen people on death row in Illinois were exonerated, George Ryan, who was then governor of the state, suspended the death penalty. Though he had been a longtime advocate of capital punishment, he declared that he could no longer support a system that has "come so close to the ultimate nightmare-the state's taking of innocent life." Former Supreme Court Justice Sandra Day O'Connor has said that the "execution of a legally and factually innocent person would be a constitutionally intolerable event."
Update: John Jackson, the prosecutor in the Willingham case, has written an op-ed piece for the Cosicana Daily Sun in which he defends the court's guilty verdict, despite what he calls an "undeniably flawed forensic report".
The Willingham case was charged as a multiple child murder, and not an arson-murder to achieve capital status. I am convinced that in the absence of any arson testimony, the outcome of the trial would have been unchanged, a fact that did not escape the Texas Court of Criminal Appeals.
David Grann, the author of the New Yorker article referenced above, responds briefly to Jackson's assertions.
But even if he refused to take a polygraph after he was arrested, polygraphs are notoriously unreliable, and are not admissible in a court of law. [...] As a result, defense attorneys routinely do not let their clients take polygraphs. [...] The idea that a lie-detector test (or the refusal to take one) could be considered evidence cuts to the core of the problems in the Willingham case: a reliance on unreliable and unsound scientific techniques.
Jackson's belief that Willingham should have (whether he would have is another story) been convicted even in the absence of evidence of arson borders on parody and would be funny if it weren't so obscene coming, as it does, from a sitting judge. If it's not arson, how do you have a murder? If the fire killed the kids and he didn't set the fire, how is he responsible? It's fucking absurd.
Update: From the Texas Department of Criminal Justice web site, the last statement of Cameron Todd Willingham:
Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby. [Remaining portion of statement omitted due to profanity.]