'The Wrong Carlos': Was an innocent man executed?

Law professor James Liebman says a Texas case reveals the injustice of the death penalty.

By , Contributor

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    Author James Liebman says that the execution of an innocent man as described in 'The Wrong Carlos' was the result of 'a combination of everything failing, a perfect storm, a collection of different errors.'
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When a Texas defendant named Carlos DeLuna faced a murder charge, he insisted that another man named Carlos Hernandez was actually responsible. Two words flashed across the minds of those who heard this claim: Likely story.

In the courtroom, eyes rolled amid muttered jibes. Couldn't he come up with a more believable name than a Latino equivalent of "John Smith"?

Nobody found the other Carlos, not the cops nor the prosecution and/or the defense nor the journalists covering the case. DeLuna went to death row and was killed via execution in 1989.

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Now, a Columbia University law professor and a team of law students say DeLuna didn't do it. They point their fingers at the late Carlos Hernandez, an invisible man in plain sight, in their new book The Wrong Carlos: Anatomy of a Wrongful Execution.

By design, this book is not a masterpiece of storytelling. It won't keep readers up past their bedtimes or give them chills through thought-provoking prose.

Instead, "The Wrong Carlos" carefully lays out the basic facts of a botched murder investigation and prosecution. Many more details of the case are available on the book's website, providing perhaps the most extensive accessible record of an American death penalty case.

In an interview, lead author and law professor James Liebman talks about what went wrong, how his team uncovered the truth, and what this case means for the debate over the death penalty.
 
Q: What convinced you to investigate a specific death penalty case?
 
In 2000 and 2002, we published a big study which showed there was a huge amount of adjudicated errors found in capital cases in the United States by state and federal courts. Essentially, two-thirds of all death verdicts reviewed over a quarter century had been overturned based on serious error.

Proponents say the system is working, and we don't have to worry about the ultimate error of someone being innocent. There's another interpretation. If an airline company or a car company had this level of error, nobody would want to go near them. If there's this much smoke, there's got to be fire.

So we wanted to examine a particular case to see if we could determine the risk of executing the innocent. We went from a statistical study where we were just counting outcomes to making a judgement call about which cases would be interesting to look at.
 
Q: How did you find this case in particular?
 
We started by looking at Texas cases. If you want money, you rob banks. If you want to study executions, you go to Texas.

We started looking at eyewitness identification cases because of the long-standing evidence that these cases can be faulty. The witness in this case was one person who happened to be pumping gas outside a store where a clerk was attacked and killed.

He saw the assailant come out of the store and run away. After a 45-minute manhunt, he identified Carlos de Luna.

This case fit what we were looking for.
 
Q: How did your team realize that this Corpus Christi case was deeply flawed?
 
A judge said that Carlos Hernandez probably did not exist. But we'd identified another Corpus Christi case, and we told our investigator that if you have an extra hour, see if you can find something about a Carlos Hernandez. In an hour, the investigator did exactly that.

That's when the case turned around.

We found out what a terrible person Carlos Hernandez was and the kinds of crimes he committed. He had a very long criminal record of armed robberies, and he was the same height and weight as Carlos DeLuna. We dropped everything and just pursued this case.
 
Q: It sounds like every institution failed in this case – the police, the prosecutors, the defense, the judge, the press. Who was most at fault?
 
What really surprised us in this case – and honestly changed my mind about how we think about error in criminal cases – is that it wasn't any one thing. It was a combination of everything failing, a perfect storm, a collection of different errors.

Why was it this case where everything would fail instead of some other case? We came to the conclusion that it wasn't just the defendant who was a person of no status, privilege, or interest to anybody to spend time protecting. The same was true of the victim, a poor, single high-school dropout from the Hispanic community. Nobody cared enough about her to want to get to the bottom of things. Everybody's prone to cut corners and not do a very good job.

Another thing is that Corpus Christi as a community has overused the death penalty. It's one of the top 15 per-capita execution communities in the United States.
 
Q: The book has an unusual just-the-facts approach. How did you choose to tell the story in that way?
 
We struggled a lot with this.

Anything about the death penalty is incredibly controversial, and nobody trusts anybody who takes a position. They feel like their attitude toward facts will be based on their view toward the death penalty. Our real struggle was how to tell the story and get the reader to put aside the question about whose side you're on and just engage with the facts.

We realized that the best we could do was be as simple as possible, and use the smallest, most straightforward and most descriptive words we could use. We'd present the facts and let them speak for themselves.

We present all of the footnotes online. You don't even have to trust the simple words if you don't want to. You can go read the full text of what we were relying upon. It's part of a series of strategies to try to convey to the reader that he or she is really in charge.
 
Q: In 2006, US Supreme Court Justice Antonin Scalia declared that opponents of the death penalty hadn't found a case of an innocent person being executed: "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." Now you have just such a case, and it's gotten plenty of attention. But will it matter?
 
It's having an effect, and there's a conversation taking place about that case. It becomes much harder for people like Justice Scalia to say the execution of an innocent person never happened because no one's talking about it, it's never been documented.

There is a clear process in which the public is taking the death penalty issue back from the courts and asserting its right to decide on this issue. Little by little, individual counties are no longer using the death penalty, and six states recently have abolished it.

Through their prosecutors, jurors, and judges, communities are quietly deciding the risks and costs of the death penalty aren't worth it anymore. That's ultimately how this issue may be decided, by individuals across the country.
 
 Randy Dotinga, a Monitor contributor, is president of the American Society of Journalists and Authors.

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