Yes, America, We Have Executed an Innocent Man


Carlos DeLuna was put to death in December 1989 for a murder in Corpus Christi. But he didn't commit the crime. Today, his case reminds us of the glaring flaws of capital punishment.

deluna carlos.JPGCarlos DeLuna (Corpus Christi Police Department)


Even for Justice Antonin Scalia, the crassest of the current United States Supreme Court justices, it was a particularly callous piece of writing. In 2006, in a case styled Kansas v. Marsh, the Court's five conservatives had just upheld a portion of Kansas' capital punishment law. The statute was interpreted to direct a sentence of death even if a jury found the "aggravating" and "mitigating" sentencing factors in equilibrium -- "equipoise," the Court lyrically called it. A tie, in other words, would mean death, not life.

For the majority, Justice Clarence Thomas had bent over backward to overturn a ruling by the Kansas Supreme Court that had declared the law unconstitutional. The High Court's four liberal justices had voted to uphold the Kansas ruling. Justice John Paul Stevens, the Ford appointee, chastised Thomas for reaching out so aggressively to overturn a state court on a matter of state law. And Justice David Souter, the Bush I appointee, wrote about how such "equipoise" necessarily precluded a death sentence.

Mocking the rationale of both, and unsatisfied with the scope of Justice Thomas' majority opinion, Justice Scalia wrote a concurrence he will have to live with the rest of his life. As he sought to destroy Justice Souter's argument about the doubts reasonable people have about the accuracy and reliability of America's death penalty regime, Justice Scalia described a criminal justice system unfamiliar to anyone who has ever covered a murder case, read a book about one, or watched television news. Justice Scalia wrote:

It should be noted at the outset that the dissent does not discuss 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 by the abolition lobby.

And then...

Capital cases are given especially close scrutiny at every level, which is why in most cases many years elapse before the sentence is executed. And of course capital cases receive special attention in the application of executive clemency. Indeed, one of the arguments made by abolitionists is that the process of finally completing all the appeals and reexaminations of capital sentences is so lengthy, and thus so expensive for the State, that the game is not worth the candle.

The proof of the pudding, of course, is that as far as anyone can determine (and many are looking), none of cases included in the .027% error rate for American verdicts involved a capital defendant erroneously executed.

There are two obvious and basic explanations for Justice Scalia's strident concurrence. Either he truly believed that capital cases are "given especially close scrutiny at every level," in which case he hadn't been paying attention to his work all those years. Or he did not truly believe that "capital cases receive special attention in the application of executive clemency," in which case his concurrence was just a thoughtless, reflexive reaction to Justice Souter's compelling case. Either way, he was wrong. Terribly wrong.


The DeLuna case was flawed at virtually every level.

At 11 p.m Monday, the Columbia Human Rights Law Review (at Columbia University) published and posted its Spring 2012 issue -- devoted entirely to a single piece of work about the life and death of two troubled and troublesome South Texas men. In explaining to their readers why an entire issue would be devoted to just one story, the editors of the Review said straightly that the "gravity of the subject matter of the Article and the possible far-reaching policy ramifications of its publication necessitated this decision."

The article is titled "Los Tocayos Carlos: Anatomy of a Wrongful Execution" and it was written by James S. Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White, Lauren Rosenberg and Daniel Zharkovsky. Los Tacayos can be translated from Spanish as "namesakes" and the two men at the heart of the story were, indeed, named Carlos DeLuna and Carlos Hernandez.. On December 7, 1989, this intense piece establishes beyond any reasonable doubt, Texas executed the former for a murder the latter had committed.

The Review article is an astonishing blend of narrative journalism, legal research, and gumshoe detective work. And it ought to end all reasonable debate in this country about whether an innocent man or woman has yet been executed in America since the modern capital punishment regime was recognized by the Supreme Court in 1976. The article is also a clear and powerful retort to Justice Scalia in Kansas v. Marsh: Our capital cases don't have nearly the procedural safeguards he wants to pretend they do.

Soon to be published as a book, Los Tacayos Carlos is a seminal piece of online advocacy as well. Not only is the article itself now available on the web in its entirety (at but so are all of its supporting materials. "The web version of the Article contains approximately 3,469 footnotes," the Review editors tell us, which in turn "provide hyperlinks to view the cited sources," including a great deal of the evidence relevant to the case. Now, everyone in the world who is interested can learn how bad it all can go when human beings try to administer what's supposed to be a fair, just and accurate death penalty.


Kansas v. Marsh was decided on June 26, 2006. The very next day, on June 27, 2006, two decorated Chicago Tribune reporters, Steve Mills and Maurice Possley, published the last of a three-part, groundbreaking series about the legal and factual problems with the DeLuna case. The headline that day was: "The Secret That Wasn't" and here was their lede:

CORPUS CHRISTI, Texas -- It was a secret they all shared. Some kept it out of fear. Some because no one ever asked. Whatever their reasons, it was a secret that might have saved Carlos De Luna from the execution chamber. Twenty-three years after Wanda Lopez was murdered in the gas station where she worked, family members and acquaintances of another man, Carlos Hernandez, have broken their silence to support what De Luna had long asserted: Hernandez, a violent felon, killed Lopez in 1983.  

A Tribune investigation has identified five people who say Hernandez told them that he stabbed Lopez and that De Luna, whom he called his "stupid tocayo," or namesake, went to Death Row in his place. They also say he admitted killing another woman, in 1979, a crime for which he was indicted but never tried. Although some aspects of De Luna's actions on the night of Lopez's killing remain suspicious, the Tribune uncovered substantial evidence that undermines his conviction.

I met Possley while we were both covering the McVeigh bombing trial. That was before his groundbreaking work a decade ago exposing the arbitrary and capricious nature of the death penalty in Illinois. Last year, when Illinois ended its experiment with capital punishment, it was in large part because of the Tribune and the work of Mills, Possley and fellow reporter Ken Armstrong. So why had he chosen back in 2005 to focus upon the DeLuna case? What had struck him? Last week, Possley told me via email:

When I reflect back on the series, what I think about most is how this case was a sensational case in a small arena. It didn't play out on a national stage and it happened so quickly -- so little time between arrest, conviction and execution. I remember that what really got me interested in the case was seeing the crime scene photos with all of the blood and then learning that there was no blood on DeLuna. It just didn't seem possible that he committed such a crime and was caught so quickly and had no blood on his clothing.That fact was so startling to me.

I really haven't changed my view of the case from back then. I thought it was a colossal, global failure of every corner of the criminal justice system. The media failed to question the case (not unusual in smaller markets where police and prosecutors are the best sources) as well.

Possley says the new piece "takes a giant step beyond our reporting because it's such a comprehensive and detailed account" of the DeLuna case. And why wouldn't it be? It was Liebman who first came to Possley and Mills, in November 2005, to see if the two veteran journalists couldn't independently investigate what his own team had discovered about the two Carloses. The resultant series became a finalist that year for a Pulitzer Prize in National Reporting. Someone was shouting from the rooftops, Justice Scalia.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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