http://www.guardian.co.uk/world/2012/may/15/carlos-texas-innocent-man-death
Ed Pilkington in New York
guardian.co.uk, Monday 14 May 2012 23.00 EDT
A few years ago, Antonin Scalia, one of the nine justices on the US supreme court, made a bold statement. There has not been, he said, "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."
Scalia may have to eat his words. It is now clear that a person was executed for a crime he did not commit, and his name – Carlos DeLuna – is being shouted from the rooftops of the Columbia Human Rights Law Review. The august journal has cleared its entire spring edition, doubling its normal size to 436 pages, to carry an extraordinary investigation by a Columbia law school professor and his students.
The book sets out in precise and shocking detail how an innocent man was sent to his death on 8 December 1989, courtesy of the state of Texas. Los Tocayos Carlos: An Anatomy of a Wrongful Execution, is based on six years of intensive detective work by Professor James Liebman and 12 students.
Starting in 2004, they meticulously chased down every possible lead in the case, interviewing more than 100 witnesses, perusing about 900 pieces of source material and poring over crime scene photographs and legal documents that, when stacked, stand over 10ft high.
What they discovered stunned even Liebman, who, as an expert in America's use of capital punishment, was well versed in its flaws. "It was a house of cards. We found that everything that could go wrong did go wrong," he says.
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From the moment of his arrest until the day of his death by lethal injection six years later, DeLuna consistently protested he was innocent. He went further – he said that though he hadn't committed the murder, he knew who had. He even named the culprit: a notoriously violent criminal called Carlos Hernandez.
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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".
Four years after DeLuna was executed, Liebman decided to look into the DeLuna case as part of a project he was undertaking into the fallibility of the death penalty. He asked a private investigator to spend one day – just one day – looking for signs of the elusive Carlos Hernandez.
By the end of that single day the investigator had uncovered evidence that had eluded scores of Texan police officers, prosecutors, defense lawyers and judges over the six years between DeLuna's arrest and execution. Carlos Hernandez did indeed exist.
Liebman's investigator tracked down within a few hours a woman who was related to both the Carloses. She supplied Hernandez's date of birth, which in turn allowed the unlocking of Hernandez's criminal past as the case rapidly unravelled.
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Many other glaring discrepancies also stand out in the DeLuna case. 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.
Then there was the crime-scene investigation. Detectives failed to carry out or bungled basic forensic procedures that might have revealed information about the killer. No blood samples were collected and tested for the culprit's blood type.
Fingerprinting was so badly handled that no useable fingerprints were taken. None of the items found on the floor of the Shamrock – a cigarette stub, chewing gum, a button, comb and beer cans – were forensically examined for saliva or blood.
There was no scraping of the victim's fingernails for traces of the attacker's skin. When Liebman and his students studied digitally enhanced copies of crime scene photographs, they were amazed to find the footprint from a man's shoe imprinted in a pool of Lopez's blood on the floor – yet no effort was made to measure it.
"There it was," says Liebman. "The murderer had left his calling card at the scene, but it was never used."
Even the murder weapon, the knife, was not properly examined, though it was covered in blood and flesh.
Other photographs show Lopez's blood splattered up to three feet high on the walls of the Shamrock counter. Yet when DeLuna's clothes and shoes were tested for traces of blood, not a single microscopic drop was found. The prosecution said it must have been washed away by the rain.
There appeared to have been an unseemly scramble to wrap up the crime scene. Less than two hours after the murder happened, the police chief in charge of the homicide investigation ordered all detectives to quit the Shamrock and allowed its owner to wash it down, sweeping away vital evidence that could have saved a man's life.
The exceptionally lax treatment of evidence continued even beyond the grave. When Liebman asked to see all the stored evidence in the case, so that he could subject it to the DNA testing that was not available to investigators in 1983, he was told that it had all disappeared.
Having lived and breathed this case for so many years, Liebman says the most shocking thing about it was its ordinariness. "This wasn't the trial of OJ Simpson. It was an obscure case, the kind that could involve anybody. Maybe those are the cases where miscarriages of justice happen, the routine everyday cases where nobody thinks enough about the victim, let alone the defendant."
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tags: death penalty, miscarriage of justice
