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 www.thewrongcarlos.net) 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.