Shout It From The Rooftops

 Posted on May 15, 2012 in Uncategorized

The position of most adherents of the death penalty is that there are enough procedural safeguards built into the system that nobody has ever been executed for a crime he did not commit, and that the probability that someone factually innocent could be executed is so small that it does not merit chucking the penalty altogether.

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.

Kansas v. Marsh (Scalia, J., concurring).

Prepare for that to change. Shout it from the rooftops: Carlos DeLuna, executed in Texas for the 1983 murder of Wanda Lopez.

Murdered by the state.

He was the spitting image of the killer, had the same first name and was near the scene of the crime at the fateful hour: Carlos DeLuna paid the ultimate price and was executed in place of someone else in Texas in 1989, a report out Tuesday found......Hernandez, known for using a blade in his attacks, was later jailed for murdering a woman with the same knife. But in the trial, the lead prosecutor told the jury that Hernandez was nothing but a "phantom" of DeLuna's imagination.

Does one case change everything?

The killing of Cameron Todd Willingham, based on flawed arson testimony (and a sellout lawyer) persuaded some, but the death penalty still has strong support in Texas. Why would DeLuna's killing persuade more?

Perhaps because, while in Willingham's case the real killer didn't come clean, in DeLuna's case,

Up to the day he died in prison [in 1999] of cirrhosis of the liver, Hernandez repeatedly admitted to murdering Wanda Lopez, Liebman said.

But fans of the death penalty will find reasons that DeLuna doesn't matter. We believe what we want to believe, and find reasons to disregard evidence to the contrary.

Pro-death-penalty people will say that I am less critical of an article suggesting that DeLuna was innocent than I would be to one saying the opposite, to which I say, "absolutely." Confirmation bias runs both ways. And if you are determined to find reasons that Hernandez might have claimed to have murdered Lopez when he didn't, or reasons otherwise to disbelieve the conclusions of the Columbia report, I can't stop you. A few who were on the fence will be convinced, and little by little the world will change.

I can't blame ordinary people for wanting to believe that the criminal-justice system works-it should work. But if you're involved as a lawyer or a judge in the criminal justice system and you really believe that no innocent person has ever been executed, you're a fool.

Sorry, Nino.

(Other likely wrongful executions, from the Northwestern Law Center on Wrongful Convictions.)