Wednesday, May 16, 2012

Law review: Texas executed wrong Carlos based on biasing eyewitness procedures

A new e-book published by a law journal argues that Texas probably executed an innocent man in 1989, and predictably the potential cause was reliance on a single, shaky eyewitness to obtain a conviction after police allegedly picked up the wrong "Carlos." According to the Houston Chronicle:
Accounts of the crime, the investigation and DeLuna's prosecution were presented in a 400-page article published Tuesday in the Columbia Human Rights Law Review. Columbia University Law School authors argue that the crime actually was committed by Carlos Hernandez, a DeLuna acquaintance with a history of convenience store robberies. Hernandez, the article says, boasted of killing the store clerk

DeLuna was executed by injection in 1989. Hernandez died in prison, convicted of a knife attack on a female acquaintance, in 1999.

Of four people who saw events connected to the crime, only one, car salesman Kevan Baker, saw Lopez struggle with her assailant, the journal article says. Baker initially described a man who did not resemble DeLuna but changed his story after police brought DeLuna to the store.

Baker later told researchers he was only 70 percent sure of his identification, the journal says. Had police not told him DeLuna had been apprehended nearby, he would have been only 50 percent certain, he said.
A retired Corpus Christi police detective said confidential informants told him at the time they'd arrested the wrong "Carlos" for the crime, but after the eyewitness picked out DeLuna he dropped the issue because it was somebody else's case.

The Chronicle pointed out that new procedures Texas law-enforcement agencies must have in place by September 1 may mitigate such questionable IDs going forward, which is true at least to the extent departments adopt best practices enshrined in the recently developed model policy or something close to it:
Legislative sponsors of a law tightening procedures for police lineups on Tuesday faulted Corpus Christi police for allowing eyewitnesses in a 1983 convenience store robbery-murder to identify the suspect as he sat handcuffed in the back seat of a squad car.

State Sen.  Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.
Gallego, however, said the way Corpus Christi police handled the suspect's identification was a "textbook example" of why the system needs to be reformed.

"What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case," Ellis said in an email.

"... The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases."
The Law Enforcement Management Institute of Texas (LEMIT) at Sam Houston State which developed the model policy is currently doing train the trainer seminars to help departments prepare for the transition.

One of the LEMIT policy provisions would require departments to record eyewitness identification sessions using either video or audio, or else record the reason why that couldn't be done. And the model policy instructs officers not to share information about the suspect with a witness that might bias their memory, as was done here. Those procedures certainly may have made a difference in DeLuna's case. It's doubtful even a Texas jury in 1983 would have been so bloodhirsty as to send a man to execution based on a witness who was "50 percent certain." Indeed, without having read the massive document, on the surface there seem to be (at least) two issues here: The failure of identification procedures and a possible Brady violation if prosecutors failed to inform the defense of the witness' waffling.

In the Bible, Moses, Jesus and the Apostle Paul all iterated that at least "two or three witnesses" were necessary to accuse someone under biblical law. DeLuna's example shows why that cautionary provision is probably still a good idea. Particularly when identifying strangers, eyewitnesses can be notoriously unreliable.

DeLuna joins a notable list of "probably nots" on Texas' executed list, notes the Chronicle: "Innocence Project co-director Barry Scheck hailed the journal article as a 'terrific job,' saying that the DeLuna case will join those of Cameron Willingham, Claude Jones and Ruben Cantu in forming a stern indictment of the Texas death penalty." Grits does not share Scheck's sanguine belief that demonstrating an innocent person has been executed would result in death-penalty abolition. Grimly, the public is willing to live with a few mistakes, but the list of potential, even probable errors is growing.


Lee said...

disposable casualties to be shrugges off....oh well, it happens.

this is just sick.

Anonymous said...

Also don't forget the sloppy work the police did, to have an innocent man murdered.

I personally would go after the judge, prosecutor and the cops and their families if this happen to one of my family members.

I'm old school, an eye for an eye.

Lee said...

I would probably do what Gerard Butler did on Law Abiding Citizen.

Anonymous said...

A moment of silence for Mr. Deluna...

Now don't get all excited about these dead bodies in Mexico, Texas kills 'em here and it is all legal!

The cops will never come clean, the prosecutors withhold the evidence, protect criminal misconduct and the Judge makes it all LEGAL. Sanctioned and paid for by the taxpayer.

From an outsider's point of view this is way CREEPY.

Anonymous said...

You guys are right. The risk that the government might kill someone they believe to be guilty who turns out not to be must be eliminated. To that end, we should disarm the police, because eventually one of them will shoot an innocent person because he thinks the person is a threat. While we're at it, we should also reduce the speed limit to 5 miles an hour, because a head on collision at any higher speed might kill somebody, and the government would be complicit in that innocent person's death by allowing people to drive at high speeds.

Anyone who thinks that the police and prosecutors relish the chance to railroad an innocent person into the death chamber is deranged. Is it possible that a mistake can be made? Of course. Are there mistakes that can result in real injury and even death to innocent people? Yes. Should we do our best to avoid that? Of course. Should we throw the baby out with the bathwater in every instance?

Anonymous said...

"Anyone who thinks that the police and prosecutors relish the chance to railroad an innocent person into the death chamber is deranged."

Anyone who thinks there have not been deranged prosecutors along the way is misguided. Some take souvenirs.

Anonymous said...

The real evidence is the system covers up mistakes at all costs.

When Texas follows Craig Watkins's lead and comes clean on documented misconduct, your "pro prosecutor" arguments won't be pissin' in the wind. Until then, find some towels, clean up and quit pissing around here. Until you man up and fix mistakes you have no credability and we don't believe you.

Anonymous said...

11:52 Oh, please. Have you bothered to go read the report? The entire thing is out there for free in the internet.

Capital punishment as practiced in Texas amounts to an irreversable government action that is showing itself to have an unacceptable tendency toward error. What was done to DeLuna was an injustice, thereby compounding the injustice that was done to Wanda Lopez.

As to your assertion regarding the police and prosecutors not relishing the act of railroading an innocent into the death champer, all of them are defending their incompetence and dishonesty in this case rather than acknowledging the obvious. And this is being done with the implicit approval of The People of the State of Texas and, apparently, with your explicit approval.

Hey, if you're ok with the state executing innocents on our behalf just so we can have a death penalty, why don't you volunteer to go first? Or is it only ok when it's somebody else's neck on the chopping block?

FleaStiff said...

Okay, so justice is not perfect. It never has been, it never will be.

So what? Look at all the archives photos of white women proudly strolling about after a lynching. Hangings are often meant to be swift.

You got the wrong Carlos? Well, go out and get the right one ... there is no shortage of rope.

Anonymous said...

11:52, Fleastiff, you guys got some nerve defending unjust crooked prosecution on this thread! The topic is State sponsored LEGAL MURDER of an innocent man. If the State had evidence the single witness was 70% or 50% sure and proceeded, isn't that criminal, accessory to MURDER? Quit defending it, quit doing it and FIX IT!!

Anonymous said...

The legal system is completely created by humans. There are no irrefutable laws of physics involved, only an entirely human creation. Thus when the legal system fails it is completely within the power of the participants to fix it and do right. When legal participants fail to do right the SYSYEM looks real bad. When the people no longer recognize the legal system as legitimate it is exposed for what it is, a house of cards. Therefore it is the responsibility of legal professionals to do right, expose and correct injustice swiftly.