(Bumped from June 11 to reflect correction, update.)
Speaking of capital punishment...
Death penalty opponents are very excited about the case of Carlos DeLuna as an argument against the death penalty. [Guardian] Twelve law students and a Columbia Law professor, based on several years of research and witness interviews about events decades ago, argue relatively convincingly that it was the late Carlos Hernandez (who died in prison after being convicted of another knife attack), not the executed Carlos DeLuna, who murdered Wanda Lopez in 1983 in a Corpus Christi Shamrock gas station. But I'm less persuaded that it demonstrates DeLuna's innocence, and less persuaded still that it tells us anything about capital punishment.
21-year-old eighth-grade dropout DeLuna, who was allegedly of "childlike intelligence" (a contention disputed by Texas), was six weeks out of prison on February 4, 1983, for a previous violent attack on a friend's mother in May 1982 (!) (this time only a couple of days out of prison, breaking several of her ribs in an unsuccessful rape); he also allegedly had a history of drug and alcohol abuse according to his habeas attorneys. According to the new narrative, DeLuna was physically present when
his cousin, Hernandez, who looked strikingly like DeLuna, started stabbing Lopez to death. DeLuna decided his best course of action was to run a short distance away and hide under a truck; he was arrested when found there 40 minutes later; police didn't investigate his implausible claims that it was Hernandez who did it, given DeLuna's suspicious behavior, criminal record, the fact that he had an amount of money in his pocket nearly the same as that stolen from the gas station, and two witness identifications who testified they saw DeLuna with a knife or stabbing Lopez. At trial, DeLuna testified as to support for his an alibi (he was at a skating rink with Mary Ann Perales), but Perales testified to refute DeLuna's claim. Today's forensic testing for DNA wasn't available in 1983, and DeLuna was executed in 1989 after several rounds of appeals failed, none of which contended his innocence.
You'll get no argument from me that state courts in Corpus Christi aren't very good. But I don't see the relevance to capital punishment as a whole. If the argument is that a mistake is possible in the one-in-a-million case too implausible for "Law & Order" where a violent recidivist is physically present at a scene and acts in a suspicious manner afterwards and is mistaken by witnesses for his lookalike
cousin who cannot be found, that weighs in favor of the Scalia/Thomas argument that the error rate in death penalty cases is not a reason to oppose the death penalty. As one blog notes, "The number of death row inmates who are there because an airtight case convicted them of a crime their doppleganger committed has got to pretty close to zero."
If Lopez were murdered ten years later, the skin under her fingernails would have been tested for DNA, supporting or refuting the case for DeLuna's guilt; if the death penalty were not available in Texas in 1983, DeLuna would have sentenced to life without parole, and would have already died in prison or still be there without anyone spending several person-years re-investigating his case. If DeLuna was really of childlike intelligence and he had been arrested in 2003 instead of 1983, his 21st-century attorneys would have finagled an IQ test under 70, and blocked his execution. (Given that DeLuna was able to make a complex pro se motion demanding to dismiss his attorneys, I am skeptical of the claims that he was so mentally retarded to preclude execution today.)
Moreover, given that DeLuna was admittedly friends and family with Hernandez and admittedly saw Hernandez start to stab Lopez, even if Hernandez wielded the fatal stab wound, it is not necessarily the case DeLuna had nothing to do with Lopez's murder. It's entirely within the realm of possibility that he agreed to participate in an armed robbery that got out of hand, which would still make him eligible for capital felony-murder charges; this is certainly consistent with a decision to run away and hide instead of seek police or medical help. Police may have botched the investigation and let a criminal get away with murder, but it doesn't make DeLuna innocent of a capital crime. Tison v. Arizona, 481 U.S. 137 (1987). The claim that there is dispositive evidence that DeLuna did not commit a capital crime simply isn't true; he might not have committed the crime he was convicted of, but no one has made (or, at this late date, can make) the case that he is not guilty of capital felony murder. (Moreover, the prosecutor claims that DeLuna confessed at one point. I'm skeptical, but it does muddy the Liebman claim that DeLuna always contended his innocence.)
Of course, DeLuna, who had two attempted rapes, a violent assault on an older woman that broke several ribs, and the use of a motor vehicle without permission on his record, was unlikely to have only served three years in prison in Texas by the age of 21 with that criminal record today. As injustices in the American criminal justice system in the last thirty years go, the fact that career criminal DeLuna died in prison in 1989 instead of possibly later doesn't even make the top thousand, even if the claim that it was Hernandez who killed Lopez is true.
We're already seeing the story being manipulated for political purposes: the Daily Beast falsely claims that DeLuna had a nonviolent past—attempting to rape a woman, threatening to kill her, and breaking her ribs doesn't count, apparently. Given DeLuna spent less than two months of his adult life out of confinement, it seems much more likely to me that the reason for his lack of a more extensive violent crime record is the lack of opportunity.
Liebman is quoted by the Huffington Post that there's no evidence the gas station was robbed; this is false, as the gas station owner testified as to missing money corresponding to what was found in DeLuna's pocket. You can accuse him of perjury, but you can't say there was a lack of evidence.
Unsurprisingly, there has been very little skepticism of the James Liebman report on the web or media, capital punishment defenders are rarely quoted. [Sentencing Law & Policy; Dallas Morning News; NYT]
Kent Scheidegger reminds us of reason to be skeptical of Liebman on this subject, given his previous choices in presenting disingenuous arguments against the death penalty.
Update, June 13:
Reuters reports on this post, but the six hours between when the reporter emailed me at 4:51 PM and when I responded wasn't quick enough to get my comments in the story.
1. In preparing this post, I relied on a Guardian article that referred to DeLuna and Hernandez as related to the same witness. From that, I misremembered the two as distant cousins. In fact, the witness was an in-law of DeLuna and was a stepmother of a niece of Hernandez. I regret the error, which was immaterial to my analysis.
2. Professor Liebman criticizes me for saying that DNA testing was not available in 1983. But it wasn't: the first US criminal trial to use DNA evidence was in 1987, and Liebman's own report acknowledges this on page 955.
3. The same reporter complains that I'm delving into the hypothetical. But I'm not speculating any less than Liebman is. The only people who know what DeLuna did at the Shamrock—Lopez, Hernandez, and DeLuna—are dead. (Jurors speculate all the time in the absence of video evidence.) Liebman infers from the forensic evidence (and long-after-the-fact confessions) that Hernandez wielded the knife that killed Lopez, and from that infers DeLuna is innocent, but the latter conclusion does not necessarily follow given the felony-murder rule. Texas Penal Code s7.02, "felony murder," and "felony-murder" are all entirely absent from the 451 pages of the Liebman report. The felony-murder explanation is more consistent with DeLuna's perjury at trial and decision to hide than the Liebman hypothesis that DeLuna told the truth about what happened at the Shamrock.
4. One of the matters underreported both by the press and my original post is the degree to which utter community dysfunctionality contributed to DeLuna's execution. DeLuna refused to help his lawyers identify Hernandez, giving up only the common name on the eve of trial without any additional information to help the attorneys (who spent wasted money on private investigators) track Hernandez down. (One can hardly blame DeLuna's lawyers for ineffective assistance given the lack of cooperation from their lying story-shifting client.) What helped Liebman's investigators unravel the mystery is the degree to which Hernandez repeatedly bragged about killing Lopez after DeLuna's conviction, and no one Hernandez bragged to bothered to mention it to anyone until Liebman's investigators showed up.
5. I wasn't aware of it, but one of DeLuna's attorneys also believes that DeLuna participated in the Shamrock robbery; the news story reporting that interview doesn't mention or appear aware of the felony-murder rule.
6. Lopez's family sued the Shamrock for her murder, and, according to Liebman, received a substantial settlement from the third party for the intentional crime of another. When politicians complain that businesses won't invest in high-poverty areas, think of civil lawsuits like that one.