The Wrong Carlos: A Case Against the Death Penalty

In 2006 Justice Scalia said that there has not been “a single case–not one–in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.” The Wrong Carlos: Anatomy of a Wrongful Execution  begins and ends with that quote, driving home the enormity of Carlos DeLuna’s wrongful execution in 1989. The mistakes in that case were so egregious and wide-ranging that there should have been some kind of red flag, some sort of review. Instead, DeLuna was fast-tracked to execution.

Scalia apparently thinks there are zero innocent people on Death Row. Current studies suggest that the real number is actually slightly above four percent. The Wrong Carlos shows that innocent people can be sentenced to death and executed even when severe mitigating factors are present. As obvious as DeLuna’s case was, if it wasn’t caught, how many more subtle innocence cases are out there?

Wanda Lopez was murdered in February 1983. Law enforcement response was flawed from the beginning. Lopez was stabbed to death around 8 p.m. at the gas station where she worked, which was located in a bad neighborhood. She called 911 twice about a man in the gas station with a knife and was interrogated and brushed off both times. The dispatcher only sent police and an ambulance when she began to scream at the end of the second call.

Cross-racial eyewitness misidentification is one of the leading causes of wrongful convictions. The primary eyewitness was an Anglo man. His initial description had been of a Hispanic man wearing jeans and a flannel shirt who had run out of the gas station and threatened to shoot him. The suspect the police brought back to the scene was a Hispanic man wearing a white dress shirt and dark trousers who carried no weapon.

All four witnesses had been kept at the scene during the manhunt, huddled together watching the EMTs fail to save Wanda Lopez’s life. Forty minutes later the police brought back a suspect and informed the witnesses that they had found him hiding underneath a car. In case you were wondering, that’s called prejudicing a witness, and it is not allowed. The primary witness later said that although he was not one hundred percent certain that the man in police custody — Carlos DeLuna — was the same man he had seen running out of the gas station, he felt an immense pressure to identify him then and there.

The detectives in charge of the crime scene did a cursory investigation. Potential evidence like a cigarette butt, chewed gum, and beer cans that one witness had described the killer drinking before the murder were left to get cleaned up by the gas station manager less than two hours after the murder occurred. The forensics officer was not very good at his job — he found zero usable fingerprints on a counter that customers would have been touching all day, and covered the handle of the murder weapon in ineffective fingerprint dust, which rendered it unusable for more sophisticated methods.

None of the blood spatters were sampled and tested though the extensive spray made it seem like Lopez had fought back. There was also at least one bloody footprint of a shoe that did not match her sandals. Tellingly, there were no traces of blood on DeLuna or his clothing. There had been about an eighth of an inch of rain Corpus Christi that morning. The prosecutor later argued that even though the murder had happened at 8 p.m., there was still enough water left on the ground to fully cleanse DeLuna’s clothes of blood.

The trial was a mess unto itself. DeLuna’s first court-appointed lawyer was the son of a local judge, a general practitioner with a small private practice and money problems, who had never done criminal defense before. After about two months the attorney realized he had no idea what he was doing and requested assistance. DeLuna’s second court-appointed lawyer was an experienced defense attorney with an absolutely overwhelming case load. Though he had been appointed two months prior, he first met DeLuna a month before the trial started. Both attorneys failed him. They neglected to interview key witnesses for the prosecution. They were unable to do their own investigation into the murder. They failed to follow up with a psych evaluation that designated DeLuna as borderline mentally retarded, and did not bring that up at trial or for sentencing mitigation.

Worst of all, DeLuna claimed to know the man who had actually committed the crime. Eventually he told his attorneys the man’s name — though it took some persuading, because DeLuna was afraid of this man. His attorneys did no research into the existence of the other man, and the prosecution took that and ran with it, referencing “the phantom Carlos Hernandez” during trial.

Of course, Carlos Hernandez did exist. He was known by the police in Corpus Christi as being a tremendously dangerous person. He notoriously carried a knife of the same type found at the murder scene. He wore jeans and flannel shirts. He held up convenience stores and attacked Hispanic women. He murdered a woman in 1979 and bragged about getting away with it, as he later did with the murder of Wanda Lopez. A neighbor once heard him boasting about the Lopez murder – and that his tocayo, his namesake, had taken the fall for it.

In retrospect, there is absolutely no doubt that Carlos DeLuna was not the murderer of Wanda Lopez. If anyone had bothered to do a modicum of their actual jobs at the time, there would have been little doubt in 1983. But no one did, so “the phantom Carlos Hernandez” stood as fact.

DeLuna’s court-appointed attorneys were incompetent, and so were the attorneys in charge of his appeals. One tried to make a case for racial prejudice, despite the fact that both Lopez and DeLuna were Hispanic. Another tried to make a claim of ineffective counsel without mentioning Carlos Hernandez – who was at that very moment under investigation for the 1979 murder. Only the final attorney went into the mitigating factor of DeLuna’s mental retardation, and his was a case of too little, too late. By the time he had gathered the requisite evidence, it was past the time period where appellate attorneys are allowed to provide new evidence, and DeLuna’s stay of execution was denied.

DeLuna was only on Death Row for six years. This was highly unusual. Even in Texas, which holds the number one spot for number of executions, the average time on Death Row is 10.6 years. the journalist who covered DeLuna’s case from the beginning had also covered many other Death Row cases, and remembered it being “unbelievably swift,” “rushed through,” and “unheard-of.”

The judicial system had failed DeLuna in a number of very obvious ways, and yet he was sped through Death Row on his way to execution. This is one of the cases where you’d expect someone to catch something. From an outsider’s perspective, nearly everything seems off. There are many more egregious details in the book — there isn’t room in a single blog post for all the mistakes. The pre-trial psychologist was a pedophile. There are suggestions that Hernandez was a police informant. An attorney for the prosecution checked out all the evidence after the trial and never returned it. The prosecutors claimed that DeLuna had robbed Lopez before murdering her, but there wasn’t any money missing from the till. On and on and on. The system is intended to catch things like these. Somehow, it did not. Somehow, it does not.

Approximately four percent of people on Death Row are innocent. What that statistic ignores is that one hundred percent are subject to to dehumanization and a form of state-sponsored murder that is getting increasingly brutal and horrifying. In April of this year it took Oklahoma’s Clayton Lockett 45 minutes to die. This is getting more common because the drugs we were using are no longer being manufactured, but it has been the case all along that sometimes the drugs fail. During his execution, DeLuna’s anaesthetic failed. He more than likely felt himself suffocating during the paralytic, felt the burn in his veins of the poison that eventually stopped his heart. DeLuna was tortured to death.

And that is where it doesn’t matter that he was innocent. It makes it more tragic – his childlike trust in the prison chaplain who promised him it wouldn’t hurt, and that betrayal. His innocence does not matter, because even the most heinously guilty people do not deserve to be tortured to death. DeLuna’s case exhibits two separate threads of the same question: Can we trust the government to kill people? Can we trust the government to kill people humanely, and can we trust the government to not kill innocent people? DeLuna shows that in both cases, the answer is “No.”

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