A Tale of Two Carlos
May 14, 2012 10:58 PM   Subscribe

Los Tocayos Carlos - a comprehensive investigation by Columbia Law School Professor James Liebman and a team of students which uncovers evidence that Carlos DeLuna, a poor Hispanic man with childlike intelligence who was executed in Texas in 1989, was innocent. The issue of The Columbia Human Rights Law Review, entirely dedicated to this investigation, is available at this website.
posted by Gyan (42 comments total) 11 users marked this as a favorite

 
Texas just keeps executing innocent people, and apparently has for decades. Cameron Todd Willingham was the first truly egregious case where this was revealed on a national stage. Now it appears that DeLuna was also innocent and taken to the chair.

If we're really going to have death as a punishment for crimes, we are going to have to really look hard at our system of justice and the burden of proof and all the bits of evidence which we weave together to declare someone worthy of death.

If we imprison someone for decades and then release them because they've been shown to be innocent, we've done them a horrible injustice, but at least they can have their freedom and hope to have some semblance of a life from that point forward. (This of course oversimplifies the idea, doesn't take into account the way society has changed in the intervening years, and doesn't address the myriad of problems someone incarcerated for a long time will face upon release.)

But... at least they have that chance.

Death is death. It's final. There's no way to release someone from a sentence of death.

If we're going to kill people as part of our justice system, we really need to make sure. Really really need to make sure. Anything less is injustice. Sadly, injustice happens too often. Even if it only has happened twice in the history of Texas' executions, that is, IMO, too often.
posted by hippybear at 11:25 PM on May 14, 2012 [4 favorites]


I'm glad this is up; I was about to post it. This looks awfully like a fit-up job on DeLuna to save their informant, from the crime scene nuking to ignoring the footprint to the unwillingness to look for Hernandez.

It stinks, and to such an extent that it's hard to forgive the DA for proceeding without querying much of the police work that led up to the case.
posted by jaduncan at 12:50 AM on May 15, 2012 [2 favorites]


So I wonder how Ken Botary sleeps at night. Someone by the same name still practices in Corpus Christi.
posted by adamvasco at 1:24 AM on May 15, 2012 [1 favorite]


"Carlos Hernandez" is a bit like "John Smith" in Spanish, but, yes, it looks awfully as if someone was covering a police informer.
posted by Skeptic at 2:12 AM on May 15, 2012


Goddamn death penalty's gotta go.
posted by flapjax at midnite at 2:20 AM on May 15, 2012 [3 favorites]


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 … the innocent's name would be shouted from the rooftops." - Antonin Scalia, Associate Justice of the Supreme Court of the United States. (via Guardian)

Twit.
posted by TheAlarminglySwollenFinger at 2:36 AM on May 15, 2012 [4 favorites]


There is no good argument in favour of the death penalty. Not one
posted by Decani at 2:36 AM on May 15, 2012


Twit.

Well, 75% correct.
posted by salmacis at 3:38 AM on May 15, 2012 [6 favorites]


If it wasn't for the death penalty he wouldn't be dead, but there would still have been a ghastly miscarriage of justice.
posted by Segundus at 4:27 AM on May 15, 2012


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 … the innocent's name would be shouted from the rooftops." - Antonin Scalia, Associate Justice of the Supreme Court of the United States

Of course, that is the same justice who claimed that innocence is not a constitutional barrier to execution in the first place.
posted by TedW at 4:28 AM on May 15, 2012


Antonin Scalia is over seventy. Hopefully he will retire in the near future.
posted by francesca too at 5:00 AM on May 15, 2012


Texas Jurisprudence: Innocent, poor and possessing childlike intelligence? Death penalty.

Guilty, rich, irresponsible and ignorant? Elect president.
posted by nowhere man at 5:03 AM on May 15, 2012


I wouldn't completely scrap the death penalty completely but I do think it should be used only in cases where there is zero doubt whatsoever of the person's guilt and responsibility.

There are just too many (yes even 1 is too many but there have been so many more than 1) innocent people executed. I also think that prosecutors should be held criminally responsible when a innocent person is convicted because the prosecutor didn't divulge information or something similar.
posted by 2manyusernames at 5:10 AM on May 15, 2012


I wouldn't completely scrap the death penalty completely but I do think it should be used only in cases where there is zero doubt whatsoever of the person's guilt and responsibility.

Zero doubt:

"At the trial, DeLuna's defence team told the jury that Carlos Hernandez, not DeLuna, was the murderer. But the prosecutors ridiculed that suggestion. They told the jury that police had looked for a "Carlos Hernandez" after his name had been passed to them by DeLuna's lawyers, without success. They had concluded that Hernandez was a fabrication, a "phantom" who simply did not exist. The chief prosecutor said in summing up that Hernandez was a "figment of DeLuna's imagination"."
posted by TheAlarminglySwollenFinger at 5:30 AM on May 15, 2012


However, his co-prosecutor, Ken Botary, was well aware that Hernandez was a real person. Three years earlier, Botary had prosecuted another murder case and lost after defense lawyers argued that Hernandez was the real killer. But Botary remained silent.
posted by adamvasco at 5:36 AM on May 15, 2012


God, this is agonizing. Makes you wonder how many others in the past you'd find if you could uncover evidence.
posted by atchafalaya at 6:57 AM on May 15, 2012


This is what happens when we trust the state to make decisions that should rightfully be made by the community. But who knows, it might happen then too. I just try to hold on to a shred of belief that we are at our core decent animals.
posted by tr33hggr at 7:32 AM on May 15, 2012


De Luna is no angel, though. He had been convicted in the past of burglary, auto theft and attempted rape.
posted by shivohum at 7:38 AM on May 15, 2012


So can anyone be charged and tried for negligent manslaughter in DeLuna's death? And if not, why not?
posted by eviemath at 7:38 AM on May 15, 2012


Oh, okay, Shivohum - that makes it better.

Truth is that makes it worse. If police are predisposed to arrest those with a record then there is no way justice can be blind. And prejudiced justice with a syringe of poison in its hand is the worst system imaginable.
posted by salishsea at 8:03 AM on May 15, 2012


Truth is that makes it worse.

If police are predisposed to arrest those with a record then there is no way justice can be blind.

There was a hell of a lot more tying De Luna to the case than the fact of his priors -- his presence near the gas station, his hiding, his extremely strong resemblance to Hernandez, the large amount of his money at the time in his wallet, etc.

The bigger question is: even if the system failed, it still gave him plenty of chances (trials and appeals), and ultimately executed a violent criminal and rapist, a predator, not some law-abiding "innocent" in the moral sense. Why, on the scale of things, should this be a big deal? Seems like there are far bigger fish to fry in our society.
posted by shivohum at 8:12 AM on May 15, 2012


This is what happens when we trust the state to make decisions that should rightfully be made by the community. But who knows, it might happen then too.

Yeah, that was called public lynching and it was A Bad Thing.
posted by elizardbits at 8:34 AM on May 15, 2012 [3 favorites]


The bigger question is: even if the system failed, it still gave him plenty of chances (trials and appeals), and ultimately executed a violent criminal and rapist, a predator, not some law-abiding "innocent" in the moral sense. Why, on the scale of things, should this be a big deal? Seems like there are far bigger fish to fry in our society.

Civilization works when people aren't put in boxes—bad person here, OK to execute for any made up reason; good person here, not OK to execute for any made up reason; black person here, can't be taught how to read; white person here, can safely be taught how to read—but instead are treated in accordance with what they actually did or did not do. There are no predators in a civilized society, only people who act in a world with consequences (and, one hopes, counseling).

The executed man was convicted of sexual assault "though he had never been known to possess or use a weapon." Sexual assault and rape are terrible things, but not worthy of death. Only people like Hitler, Stalin, or Ayn Rand deserve the summary execution treatment.

Further, this cat was executed with six years of full and considered due process for something he clearly didn't do. That same due process is the only thing stopping the government from deciding, calmly and rationally, after a delay of six years, from ending your life, or your brother's, or your father's, or your mother's... When due process fails your neighbor, it also fails you.
posted by jsturgill at 8:57 AM on May 15, 2012 [2 favorites]


I wouldn't completely scrap the death penalty completely but I do think it should be used only in cases where there is zero doubt whatsoever of the person's guilt and responsibility.

The hurdle is that there are no good criteria to establish between "zero doubt" and "some doubt". Even confessions are not as strong as some think. Wrongful executions would still happen.
posted by Jehan at 9:01 AM on May 15, 2012


The bigger question is: even if the system failed, it still gave him plenty of chances (trials and appeals), and ultimately executed a violent criminal and rapist, a predator, not some law-abiding "innocent" in the moral sense. Why, on the scale of things, should this be a big deal? Seems like there are far bigger fish to fry in our society.

What the fuck? You should know that having no concern over the death of "undesirables" has a long and really quite impressive history, largely involving authoritarian regimes far worse than the threats they addressed. I'm just not quite sure what to say to the claim that it isn't a big deal if someone is killed for a crime they didn't commit; it's cartoonishly immoral.
posted by jaduncan at 9:08 AM on May 15, 2012 [1 favorite]


That same due process is the only thing stopping the government from deciding, calmly and rationally, after a delay of six years, from ending your life, or your brother's, or your father's, or your mother's... When due process fails your neighbor, it also fails you.

No, I don't think so. That the system went through a lot of due process and still failed and executed someone who didn't murder but did rape and steal and assault people does not mean that it's going to turn into Stalin-esque show trials. Imperfect systems do not necessarily slide into totalitarianism. They can stay imperfect for long, long periods of time.

You should know that having no concern over the death of "undesirables" has a long and really quite impressive history

That's silly. Not all "undesirables" are undesirable for the same reason. Someone who tries to steal and assault and rape IS undesirable, and IS a lower priority in society, for very good reason.

Society doesn't have unlimited resources, unlimited attention, or unlimited concern. If I'm going to be concerned about justice, I'm going to be concerned about actual law-abiding citizens going to jail or being killed. I'm going to be concerned about preventing robberies or rapes. I'm going to be concerned about persecuted immigrants being sent home. That's where I'd spent time and attention and energy.

I might be very slightly concerned over something like this, a case where someone got trials and appeals, and was a nasty, nasty character.

I'm just not quite sure what to say to the claim that it isn't a big deal if someone is killed for a crime they didn't commit; it's cartoonishly immoral.

No. What's cartoonishly immoral is going around trying to rape people. Executing someone who's a rapist is not cartoonishly immoral; it is, at worst, slightly overkill.

I mean, would you be mourning him if he were run over by a truck? You'd be weeping at the injustice of it all? I think there's got to be some sense of proportion.
posted by shivohum at 9:55 AM on May 15, 2012


2manyusernames: "I wouldn't completely scrap the death penalty completely but I do think it should be used only in cases where there is zero doubt whatsoever of the person's guilt and responsibility. "

I think it should be scrapped precisely because I don't trust any person or group of people to eliminate that doubt.
posted by brundlefly at 10:11 AM on May 15, 2012


No, I don't think so. That the system went through a lot of due process and still failed and executed someone who didn't murder but did rape and steal and assault people does not mean that it's going to turn into Stalin-esque show trials. Imperfect systems do not necessarily slide into totalitarianism. They can stay imperfect for long, long periods of time.

Where did Stalin come into this? What I said was 100% accurate, unless you live outside of America. You, and the people you know, will be judged by the same system that made this and other serious mistakes. Yes, it's not the worst system in the world. But it's yours, and this kind of thing should chill you to the bones.

I might be very slightly concerned over something like this, a case where someone got trials and appeals, and was a nasty, nasty character.

How do you know he's a nasty character? Because he was convicted of sexual assault. Who convicted him for assault? The same system that later executed him for a crime he didn't commit. Why aren't you outraged that the system killed him for a crime he didn't commit? Because he was a nasty character. How do you know he's a nasty character? Because he was convicted of sexual assault...
posted by jsturgill at 10:17 AM on May 15, 2012


As an aside:

It's not relevant how many other terrible things DeLuna had actually done in his life. Even so, an eagerness to paint him as a devil is wrongheaded and inaccurate in this instance. He was neither a devil nor a saint. He was young—20 years old at the time. An adult by many measures, but still a kid by many others.

I tried to find his actual record and couldn't. This site claims he had a history of arrests for public drunkenness and burglary, and convictions for (an) attempted rape and auto theft. The OP's article mentions he had no history of using weapons in any of his crimes. On the other hand, attempted rape is inarguably an act of violence and a glaring moral failure.

The course his life would go on to take for the next 50 years or so is unknown. What were the circumstances of the attempted rape? I don't know. What is the applicable recidivism rate for attempted rapists in those particular circumstances? I don't know. You could argue he would be statically likely to go on to harm others in ways that were prosecutable in court, and I think that's a fair assertion to make. (Note the likely in that sentence. It is in no way known, or a fact.)

But saying it's not a big deal to kill a 20-year-old man out of incompetence because of a statistical probability that he might commit other crimes in the future is offensive and wrongheaded. Particularly since the statistical probability is highly dependent on how America so eagerly puts people on the "bad person" track and refuses to foster opportunities and desires for them to meaningfully change or put their checkered pasts behind them.

What are the statistical probabilities you will break some law in the future? How high—or low—does that number have to be before society can kill you without rigorous or meaningful justification? How much privilege or money do you have to have before that question loses its rhetorical power?
posted by jsturgill at 10:47 AM on May 15, 2012 [1 favorite]


Jesus, just the mention of Cameron Todd Willingham's case is enough to sink a concrete block in my gut. How could the death of your three children be made any worse? To be accused of and executed for it.
posted by gottabefunky at 11:25 AM on May 15, 2012


[Please cool it a bit. Strong opinions, fine. "Fuck you", not so much.]
posted by cortex at 11:48 AM on May 15, 2012


Someone who tries to steal and assault and rape IS undesirable, and IS a lower priority in society, for very good reason.

Society doesn't have unlimited resources, unlimited attention, or unlimited concern. If I'm going to be concerned about justice, I'm going to be concerned about actual law-abiding citizens going to jail or being killed. I'm going to be concerned about preventing robberies or rapes. I'm going to be concerned about persecuted immigrants being sent home. That's where I'd spent time and attention and energy.


On a gut level, I very much agree with you. The first I've heard of Carlos DeLuna is from this thread, so I wouldn't want to comment on what kind of person this man was, but I really disliked when anti-death penalty/social justice activists rallied around Stanley "Tookie" Williams in 2005 or Mumbia Abu-Jamal over the past twenty years. Because they were guilty and very, very bad people who did a lot to make the world around them worse off. I try to be liberal and am against capital punishment (though my state has never practiced it, so I've been an armchair activist in movement to abolish it), but I could never muster one bit of sympathy for either of those people. Just reading their Wikipedia entries makes me feel hate for them.

So I am with you in that I'd rather be concerned about a genuinely innocent person being executed and believed for a long time that rallying around someone like that would be the best way to fight the death penalty.

But Troy Davis was executed last year by Georgia despite a lot of genuine doubt as to his guilt. And he wasn't a bad person, he wasn't a gang member, he didn't have an extensive criminal record, never robbed anyone. He was a working stiff who was in the wrong place at the wrong time. But the state executed him anyway. And I feel in my gut that it had a lot to do with spite. So many people were rallying around him and writing letters to the government that I think the powers that be dug in their heels and said fuck you and killed him anyway. So I have no idea how to best focus anti-capital punishment efforts.

It's a complicated issue on who should get sympathy and who shouldn't and just about every innocent people who gets caught up in the criminal justice system usually have something bad in their past.
posted by riruro at 12:06 PM on May 15, 2012 [1 favorite]


Why, on the scale of things, should this be a big deal? Seems like there are far bigger fish to fry in our society.


Setting aside the issue of Carlos deLuna, the fact that the botched investigation and flawed criminal justice process allowed an actual murderer to wander free and attack more people seems like a sizeable deal to me.

In the understandable focus on the victim of a miscarriage of justice, it's also important to remember that it means that the one whodunit has not been brought to justice and is more than likely out there doing it some more
posted by reynir at 2:47 PM on May 15, 2012


“It takes balls to execute an innocent man”
posted by homunculus at 3:08 PM on May 15, 2012 [1 favorite]


DeLuna's a clear example of an innocent person being executed, but we can be pretty confident that a lot we don't know about died before him. According to the Innocence Project, at least 17 people have been exonerated by DNA evidence while awaiting execution. That's a snapshot of death row at one moment, 17 in line to be murdered for crimes they didn't commit. And while it's likely DNA has lessened that number, it's not always available and it can't always definitively exonerate someone. We can't rely on the criminal justice system to make life or death decisions. Even if you think the Death Penalty is justified by the most heinous crimes, how many innocent people are expendable to enact that punishment?

I'm sure that someone who kidnapped and kept a mentally challenged man in small cell for years, threatening to kill him over and over gain, and then strapped him down and injected him with poison is as deserving as anyone for the death penalty. I'm wondering when they're going to start executing someone for the murders that Texas has committed because they killed this man intentionally and it's clear they intend to do it again; thinking of the standard they applied in DeLuna's sentencing, that prosecutor's smug remarks would convince me to vote for death under their own rules.

Down with institutionalized murder!
posted by PJLandis at 3:18 PM on May 15, 2012


The bigger question is: even if the system failed, it still gave him plenty of chances (trials and appeals), and ultimately executed a violent criminal and rapist, a predator, not some law-abiding "innocent" in the moral sense.

"Plenty" of chances, but obviously not enough to avoid being executed for a crime he didn't commit. But above all, the system is not supposed to give you "chances" to prove your innocence. It is supposed to be the other way around: "Innocent until proven guilty". De Luna clearly never was really proven guilty of that crime, yet he was convicted and killed for it. That is abominable no matter what other crimes he may actually have been guilty of.

And besides, in your world, how innocent should one be, in absolute terms, to avoid execution for somebody else's crime? Have you always been 100% law-abiding? No speeding tickets, no cheating in exams? As a wiser person than me once said, "let he who is without sin, cast the first stone".

Finally, if Hernández was the actual murderer, De Luna wasn't the only victim of this gross miscarriage of justice. A murderer was left free, one who would still commit several violent crimes, including an attempted murder, before his death. Surely, if you are so law-abiding, the thought of this alone should be chilling enough?
posted by Skeptic at 3:39 PM on May 15, 2012


"There was a hell of a lot more tying De Luna to the case than the fact of his priors -- his presence near the gas station, his hiding, his extremely strong resemblance to Hernandez, the large amount of his money at the time in his wallet, etc."

That evidence seems compelling until you note all the evidence they misrepresented, outright hid from the defense, and the fact that the real killer was an active police informant with a history, including a recent rape/murder charge, that made their failure to identify him as a suspect either evidence of gross incompetence or a criminal disregard for the truth.

All of the evidence in this case, immediately after the trial, was signed out by the D.A. who know who Carlos Hernandez was but lied about it; that D.A. listed Carlos Hernandez's as the case on the sign-out sheet and the evidence was never seen again.

I think the death penalty is fucked in any case, but this case involved a willfull disregard for the truth on the part of State not just a reasonable error.
posted by PJLandis at 6:12 PM on May 15, 2012


Unfortunately, some people view the killing of innocent people by the death penalty as a feature, not a bug. As a Republican primary voter said in a focus group for Texas governor Rick Perry, "It takes balls to execute an innocent man."
posted by jonp72 at 7:36 PM on May 15, 2012


Cameron Todd Willingham Exoneration Was Written But Never Filed By Texas Judge
posted by homunculus at 1:52 PM on May 21, 2012


This part is particularly terrible:

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.
posted by compartment at 8:09 AM on May 22, 2012


he said that he hadn't been that sure about the identification as he had trouble telling one Hispanic person apart from another.

Shades of Twelve Angry Men.
posted by flapjax at midnite at 8:17 AM on May 22, 2012


Meanwhile, in Florida...
posted by homunculus at 7:53 PM on June 6, 2012


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