The Execution of the Wrong Carlos?

Carlos Hernandez

When Carlos DeLuna was executed on December 7, 1989, he became the 29th person to be put to death by Texas since the death penalty was reinstated in 1974.

He was clearly a murderer, right?

Not necessarily so, says a team of students from Columbia University led by Professor James Liebman. Their six-year investigation has been published in a detailed report in the Human Rights Law Review (HRLR) Issue 3 of Volume 43, both in print and online, with the title Los Tocayos Carlos.

The team left it up to the reader to decide whether DeLuna was innocent, beginning with two questions: “Did Texas execute an innocent man? Did it leave the real killer on the streets to terrorize neighbors for years?”

DeLuna defended his innocence to the last minute, before he was strapped to the table and given a cocktail of lethal injections. His sister, Rose Rhoton, couldn’t bear to watch the execution. “Why was this allowed to happen?” she asks, in a video published in the HRLR. “Carlos should have not been executed. They executed the wrong person.”

Reading the law review report, it’s easy to conclude that she is right and that the wrong Carlos was executed.

Carlos De Luna, executed on December 7, 1989.

According to the prison inmate summary, DeLuna was convicted in the February 1983 murder of Wanda Lopez, a service clerk at a Shamrock gas station in Corpus Christy, in a robbery gone wrong. “Lopez was stabbed to death minutes after she called police and attempted to describe her assailant to the dispatcher,” the summary states. “DeLuna took an undetermined amount of money and fled on foot. Police found him hiding under a truck parked in the area. DeLuna contended that another person killed Lopez and that he ran so he would not be implicated.”

According to the Corpus Christy Caller-Times, police investigator Paul Rivera re-read the DeLuna case years ago and again came to the conclusion that “DeLuna stabbed Wanda Lopez when she was on the phone and she was screaming for help.”

But what if he didn’t? What if we are the killers who murdered an innocent person?

If that is the case, I’d like to think that the innocent Carlos forgave us. These were his last words: “I want to say I hold no grudges. I hate no one. I love my family. Tell everyone on Death Row to keep the faith, and don’t give up.”

As the story goes, Carlos DeLuna had an acquaintance, his tocayo, Carlos Hernandez. Hernandez and DeLuna looked a like, and sometimes were even confused as twins.

Allegedly, both Carloses were hanging out together at a bar, when Hernandez went to the gas station across the street to buy cigarettes. Hernandez was taking a long time, so Carlos DeLuna went to find out what was going on and saw Hernandez wrestling with Lopez. Hearing police sirens, DeLuna got scared, ran, and hid under a truck. That’s where the police found him 40 minutes later. He looked like Hernandez to the only witness, and had $149 dollars in his pocket. He was convicted, no matter that he didn’t have any bloodstains on his clothes or shoes (“they must have been washed by the rain”, went the reasoning).

When examining the photos from the scene of the crime, the team of researchers was shocked to find a footprint in the pool of blood, but the police never mentioned it in their investigation, and it was not checked against DeLuna’s shoes. I guess it was clear enough to them that DeLuna was the murderer.

DeLuna gave the detectives the name of the actual killer. The police looked for, but didn’t find, Carlos Hernandez, so they decided that this other Carlos was just an invention by DeLuna, “a phantom,” or “a figment of DeLuna’s imagination,” according to prosecutors.

Then why did it take the private investigator hired by the Columbia University professor for the study just one day to find the “phantom” Carlos? Hernandez, it turns out, had been accused of murdering another woman with a knife in 1986. But the case was dismissed. In fact, he had been arrested two months before DeLuna’s execution for stabbing Dina Ybanez — but, still investigators never found him.

The university students interviewed Ybanez, a neighbor of Hernandez’s. “If they had asked me this year’s ago, maybe I could have saved Carlos DeLuna,” says Ybanez, “because he was innocent.” The students interviewed over 100 witnesses, including some who had heard Hernandez claim that he had killed Lopez.

Hernandez died from cirrhosis of the liver in 1999 while he was in prison for assaulting another victim with a knife.

While I do agree that murderers should pay for their actions, I cannot justify killing someone because he or she has killed another person. If I did, I would be supporting the killing cycle. Would I kill someone in hot blood to defend my life? I don’t know, and I intend not to find out. But I would not pull a trigger in cold blood and kill someone, no matter how evil I thought they were, because they had done the same thing.

However, every time someone is executed by my state, I’m also the executor. I’m guilty of their death. I realized this a few years ago, when I saw Sean Penn cry during the vigil held at San Quentin, California, during my state’s last execution in 2005.

In my humble view, killing a person, whether he’s guilty or innocent, perpetuates the idea that killing is right. The Death Penalty contributes to a cycle of death. And it didn’t stop Carlos from killing Wanda Lopez.

It is understandable that some people may find comfort and justice in “sentencing” a guilty person. “They deserve it,” is the explanation that I hear most often when I debate this subject. But I ask them, “What if we were to accuse and kill an innocent human being? Would it still be worth it?”

Of course we’d like to think that it never happens. Chief Justice Antonin Scalia said a few years ago that he didn’t know of “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.”

Of course we like to believe that only murderers die at the electric chair, on the lethal injection table, in the gas chamber or at the wall… We have many inventive ways to deliver justice without “cruel and unusual punishment”, without making the “ajusticiados” suffer.

I say, if they’re murderers, let them suffer in jail so they can have the rest of their lives to think about what they’ve done. If they’re innocent, give them a chance to prove their innocence while they’re alive.

Franky Carrillo was sentenced to death for murder when he was 16. After 20 years in jail, he proved he had been wrongfully convicted. “It could have been me,” he says about DeLuna’s execution. Carrillo is now part of a ballot initiative that intends to replace California’s Death Penalty with “Life in Prison Without Possibility of Parole.”

“I don’t want to pay for a killer to live in jail,” someone may say. “I have news for you,” I interrupt. “It’s more expensive to keep someone on Death Row. Even if we end up killing them, the legal battle costs the state more money that if that person was sentenced to life without parole.” A study by the Dallas Morning News from 1992 indicated that a death penalty case cost the state of Texas an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years.

According to SAFE, abolishing the death penalty would save California $1 billion in five years. Now that the state’s coffers are running on empty, there’s a new movement to turn the Death Penalty into Life in Prison without possibility of parole.**

Let’s take that a step further and abolish the death penalty nationwide. It’s overdue. In fact it’s too late — 1,295 deaths too late*. That’s how many people have been executed in the U.S. since the reinstatement of the death penalty in 1974. Of those, 728 were “white,” 444 were “black,” at least 99 were “Hispanic” and 24 were marked “other race.”

But how many of them were innocent? At least one of the 482 people executed in Texas was clearly innocent. If it were not for the work of these Columbia University students, we may never have known that. And how many more Carlos DeLunas are there?

Most nations have abolished the death penalty. That leaves 95% of executions to occur in just five countries: China, Iran, Iraq, Saudi Arabia, and the United States. Is that really the company we want to be in? Let’s stop this madness.

As Gandhi said, “An eye for an eye leaves everybody blind.”

(*) From the time I wrote this article in May until today 22 more people have been executed.

(**) Proposition 34 to end the Death Penalty in California failed to pass by a narrow margin.

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