You can’t fix the death penalty

Californians will vote this fall on an initiative to abolish the death penalty. Proponents of the measure say it is necessary because capital punishment is too costly. Opponents argue that costs can be cut by streamlining the system.

But whether one is for or against capital punishment, trying to make the process cheaper and quicker is a terrible — and dangerous — idea.

Recently, my coauthors and I published the results of an extensive four-year investigation into the Texas execution of Carlos DeLuna, a young Latino man with a childlike intellect who was convicted of murder. His case flew through the courts. The entire process, from arrest to lethal injection, took only six years, or half the national average for capital cases.

It now seems virtually certain, however, that DeLuna was innocent. Only a more careful — and consequently longer and more expensive — prosecution and appeals process might have prevented the tragedy.

During our investigation, four private detectives and more than a dozen law students reviewed hundreds of documents obtained through the Texas open records law, interviewed more than 100 people and engaged experts to conduct new forensic analysis.

In brief, here is how justice went awry.

DeLuna was arrested in 1983 and charged with murdering Wanda Lopez, a single mother who was stabbed to death with a lock-blade buck knife while working at a convenience store in Corpus Christi.

DeLuna was in the vicinity and — he later said — saw another man attack Lopez, a man he knew. When he heard sirens, he fled because, as he explained later, he was on parole and feared an encounter with police.

Forty minutes after the slaying, police apprehended DeLuna hiding under a pickup truck. DeLuna had no blood on his clothes, even though the crime scene was soaked in it, and the killer and victim had wrestled hand to hand as she bled to death. No DNA, fingerprints or other physical evidence connected DeLuna to the crime. The main evidence against him was a single, nighttime eyewitness identification after police brought him to the crime scene in handcuffs.

A tape of police radio reports indicates that officers had chased another man for the 30 minutes before their attention was drawn to DeLuna a mile away. Jurors and defense counsel never knew that, however. We uncovered the tape 20 years later.

From the moment DeLuna was arrested, he insisted he didn’t commit the crime. In a squad car on the way to the station, he offered to help police if they would help him. Later, he gave his attorneys and family the name of the man he said he saw committing the crime: Carlos Hernandez.

DeLuna’s insistence that another man had committed the crime was dismissed at the time. Carlos Hernandez was a “phantom” of DeLuna’s imagination, a prosecutor told the jury. The man couldn’t be located, DeLuna’s lawyers told him and his family. Hernandez probably never existed, a federal judge concluded, as he rushed the case through its appeals.

But, as our investigation revealed, Carlos Hernandez not only existed; he was well known to police as a violent felon with a history of gas station armed robberies, a notorious attachment to lock-blade buck knives like the one left behind at the crime scene, and a penchant for using it and other weapons to attack women. Hernandez had recently been a prime suspect in the murder of another woman, in whose back an X had been carved with a knife. He matched the initial descriptions of Wanda Lopez’s assailant better than DeLuna.

Soon after the gas station killing, a police detective reported hearing from informants that Hernandez was saying that he, not DeLuna, had killed the store clerk. Indeed, as our investigation revealed, Hernandez spent years bragging around Corpus Christi that he, not DeLuna, had committed the crime. The two men bore such a strong resemblance to one another that even members of their own families mistook photos of one for the other.

It is tragic when a victim dies and the wrong man is executed. It is even worse if the guilty man goes on to terrorize others.

Two months after Lopez’s murder, Hernandez was arrested outside a convenience store with a knife. Several months later, he attacked a woman and her children with an ax handle. A few months before DeLuna’s execution, Hernandez used a lock-blade buck knife to cut a four-inch incision in the stomach of another young Latina. He pleaded guilty to that crime. Still, no one bothered to tell DeLuna’s lawyers or the courts that the “phantom” Hernandez was in jail in Corpus Christi.

Ten years after DeLuna was executed, Hernandez died from liver disease in a Texas prison. He was 44 and back in prison for attacking a neighbor with a knife.

The flaws in the system that condemned DeLuna — faulty eyewitness testimony, poor legal representation and evidence withheld from the defense — continue to put innocent people at risk of execution. Cameron Willingham, David Spence, Ruben Cantu, Larry Griffin, Gary Graham and Troy Davis are among those executed despite evidence that they were not guilty. What we don’t know is how many more, like Carlos DeLuna, have fallen through the cracks without ever being noticed.

DeLuna’s case disproves the myth that we can save the death penalty by generating more “quick and dirty” executions. The death penalty is broken. At great effort and expense, states such as California have tried every measure to fix it, but they have failed. The only solution is to end it.

James S. Liebman is a professor of law at Columbia University and the lead author of “Los Tocayos Carlos,” a book-length study of Carlos DeLuna’s case that appears in the spring issue of the Columbia Human Rights Law Review.