Proved Innocent Too Late

On Monday I wrote a post about those people wrongly incarcerated for crimes they never committed. Unfortunately it doesn’t end here. Last week, while researching that article, I came across this one.

Carlos DeLuna looked uncannily like the murdered. He had the same first name, was in the area where the victim was murdered at the time the crime took place, and in 1989 was executed for a crime he never committed in the great state of Texas. No, this is not the latest John Grisham plot, though I doubt the master of court case fiction could have designed a better plot.

Columbia School of Law professor James Liebman and five of his students spent nearly five years going over the most minute details of the case and have put together a study of almost 800 pages, called “Los Tocayos Carlos: Anatomy of a Wrongful Execution,” Their conclusion: an incomplete and flaw-ridden investigation and trial. The wrong man was put to death in what Liebman calls an “emblematic” legal system failure.

In February 1983, Wanda Lopez, a single mother working in a gas station in the Texas coastal city of Corpus Christi, was stabbed to death. Ms. Lopez had twice called the police that night claiming to be threatened by a man with a switchblade and Liebman questions whether the quick arrest and conviction might have been motivated by the police’s failure to investigate and protect the victim despite her calls for help.

Professor Liebman and his staff highlighted “numerous missteps, missed clues and missed opportunities that let authorities prosecute Carlos DeLuna for the crime of murder, despite evidence not only that he did not commit the crime but that another individual, Carlos Hernandez, did,”

The reason this is important to exposure is first to clear the name of Carlos DeLuna though I truly cannot conceive what this might give his family other than closure if even that is remotely possible.

But second, it highlight the finality of the death penalty, and begs the question whether we can ever be 100% sure that a person is guilty.

Critics will claim that the ‘facts’ of this case are uncanny. Even the relatives of both men misidentified them and this is critical in a case that depended heavily on eyewitness accounts. They are both called Carlos, though I am not sure why this so intrigues me, or has any bearing on the investigation and trial.

In fact there was only one eyewitness who reported a Hispanic male running from the gas station. Even then, the man was identified as wearing a grey flannel shirt and had a mustache. DeLuna was clean-shaven and wore a white dress shirt. The only part of the identity that was accurate was that he was a male and Hispanic.

Forty minutes after the murder, Carlos DeLuna was arrested east from the gas station. Eyewitnesses said the killer was fleeing north. DeLuna had run when the police approached. He was on parole and had been drinking.

He apparently told the police that he had been in the vicinity of the gas station and seen Carlos Hernandez there. “I didn’t do it, but I know who did,” DeLuna said at the time.

Hernandez, known for using a blade in his attacks, was later jailed for murdering another woman with the same knife. He later died in prison from cirrhosis of the liver, but while incarcerated repeatedly admitted to murdering Wanda Lopez,

During the trial, the prosecutor told the jury that Hernandez was nothing but a “phantom” of DeLuna’s imagination and DeLuna’s budget attorney even questioned Carlos Hernandez’s existence. But in 1986, a local newspaper published a photograph of Hernandez in an article on the DeLuna case,

Following a hasty trial DeLuna was executed by lethal injection in 1989 after what Liebman calls “a very incomplete investigation. No question that the investigation is a failure…everything went wrong in this case.”

But why bring it up today (family closure aside)? The following statement is attached to the report. “Unfortunately, the flaws in the system that wrongfully convicted and executed DeLuna — faulty eyewitness testimony, shoddy legal representation and prosecutorial misconduct — continue to send innocent men to their death today.”

Until such time as we are able to discover a flawless way to conduct our trials and investigations, putting a person to death is a finality we are simply not ready for.

Judaism Oral Law (Talmud, Sanhedrin 37a) says that when you save a person it is as though you have saved the whole world. Until we stop killing innocent people, our entire civilization is at risk.

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Alon Shalev is the author of The Accidental Activist and A Gardener’s Tale. He is the Executive Director of the San Francisco Hillel Foundation, a non-profit that provides spiritual and social justice opportunities to Jewish students in the Bay Area. More on Alon Shalev at http://www.alonshalev.com/ and on Twitter (@alonshalevsf).

The Ones Not Executed

June is a special month for my family. In a few weeks, my eldest son will complete a rite-of-passage as he stands before our community and fulfills three obligations as he becomes an adult in the eyes of Judaism. He will lead the community in prayers, read from the Torah (Old Testament), and teach a lesson from the passage he had read.

The Torah portion deals with the death penalty as a man found gathering wood on the Sabbath is stoned by the entire community and the Israelites are condemned to die in the Wilderness and never enter the land of milk and honey.

As my son read this and we talked about the scenarios and lessons that could be gleaned, we discussed the death penalty and ways of punishing people when they do wrong.

What happens, however, when the wrong person is condemned? We are discovering, with the help of technology, that people who have been arrested, tried and convicted, are sometimes simply the wrong person in the wrong place at the wrong time. 

Last year, during my annual week of service on the Gulf Coast with students, we met two men who had each served over 20 years each in jail for crimes that neither had committed. One had been on death row. These two men were exonerated because of the use of DNA testing in post-conviction criminal cases. DNA testing has proved that more than 250 people had been innocent and had sat in prison for an average of 13 years – the age my son is as he reaches his bar mitzvah (his rite-of-passage).

It is hard to imagine. My eyes filled with tears when one told us of the son or daughter that he had never held. He was now in the process of getting to know his now grown up child. How can a person be compensated for this? Any aspiration he once had for a good education and career have long disappeared.

The Innocence Project is an advocacy group who would like every state to have an exoneree compensation law that reflects the guidelines set out on a federal level (23 states do not at the time of writing). Current federal guidelines provide the wrongly incarcerated up to $50,000 per year of wrongful incarceration, and $100,000 per year served on death row. “The beauty of a compensation statute is that it provides a formula that treats everyone equally,” says Rebecca Brown, policy advocate for The Innocence Project.

I believe it is important to financially compensate exonerees and ensure that they can live out the rest of their lives with dignity and meaning. There is an important place for an advocacy group such The Innocence Project.

But I can’t loose the image of the man in New Orleans, who never got to hold his child and now must pick up the pieces with his adult child. I will soon stand by my son in front of our community, a son that I have stood by for thirteen years and will for many more. There are some things that you cannot put a price on.

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Alon Shalev is the author of The Accidental Activist and A Gardener’s Tale. He is the Executive Director of the San Francisco Hillel Foundation, a non-profit that provides spiritual and social justice opportunities to Jewish students in the Bay Area. More on Alon Shalev at http://www.alonshalev.com/ and on Twitter (@alonshalevsf).

When Fiction and Reality Blur

I just finished John Grisham’s latest novel, The Confession – always a pleasure Mr. Grisham. The plot deals with a man wrongly accused as the police and courts conspire to put him away. As Grisham works his art, I find myself thinking about the characters even when I am not listening to the audio book.

So you can imagine my surprise to read this headline on the New York Times daily digest: “Framed for Murder?” What? Then the next line: Californians may be about to execute the wrong man.

No,no,you’re wrong. It’s Texas. John Grisham said so!

But it is not out in Texas. It is here in our backyard. This is a great account of the case by NICHOLAS D. KRISTOF and was published 12/08/2010.

Framed For Murder

That’s the view of five federal judges in a case involving Kevin Cooper, a black man in California who faces lethal injection next year for supposedly murdering a white family. The judges argue compellingly that he was framed by police.

Mr. Cooper’s impending execution is so outrageous that it has produced a mutiny among these federal circuit court judges, distinguished jurists just one notch below the United States Supreme Court. But the judicial process has run out for Mr. Cooper. Now it’s up to Gov. Arnold Schwarzenegger to decide whether to commute Mr. Cooper’s sentence before leaving office.

Kevin Cooper

This case, an illuminating window into the pitfalls of capital punishment, dates to a horrific quadruple-murder in June 1983. Doug and Peggy Ryen were stabbed to death in their house, along with their 10-year-old daughter and an 11-year-old houseguest. The Ryens’ 8-year-old son, Josh, was left for dead but survived. They were all white.

Josh initially told investigators that the crime had been committed by three people, all white, although by the trial he suggested that he had seen just one person with an Afro. The first version made sense because the weapons included a hatchet, an ice pick and one or two knives. Could one intruder juggling several weapons overpower five victims, including a 200-pound former Marine like Doug Ryen, who also had a loaded rifle nearby?

But the police learned that Mr. Cooper had walked away from the minimum security prison where he was serving a burglary sentence and had hidden in an empty home 125 yards away from the crime scene. The police decided that he had committed the crime alone.

William A. Fletcher, a federal circuit judge, explained his view of what happens in such cases in a law school lecture at Gonzaga University, in which he added that Mr. Cooper is “probably” innocent: “The police are under heavy pressure to solve a high-profile crime. They know, or think they know, who did the crime. And they plant evidence to help their case along.”

Judge Fletcher wrote an extraordinary judicial opinion — more than 100 pages when it was released — dissenting from the refusal of the United States Court of Appeals for the Ninth Circuit to rehear the case. The opinion is a 21st-century version of Émile Zola’s famous “J’Accuse.”

Mr. Fletcher, a well-respected judge and former law professor, was joined in his “J’Accuse” by four other circuit judges. Six more wrote their own dissents calling for the full Ninth Circuit to rehear the case. But they fell just short of the votes needed for rehearing.

Judge Fletcher laid out countless anomalies in the case. Mr. Cooper’s blood showed up on a beige T-shirt apparently left by a murderer near the scene, but that blood turned out to have a preservative in it — the kind of preservative used by police when they keep blood in test tubes.

Then a forensic scientist found that a sample from the test tube of Mr. Cooper’s blood held by police actually contained blood from more than one person. That leads Mr. Cooper’s defense team and Judge Fletcher to believe that someone removed blood and then filled the tube back to the top with someone else’s blood.

The police also ignored other suspects. A woman and her sister told police that a housemate, a convicted murderer who had completed his sentence, had shown up with several other people late on the night of the murders, wearing blood-spattered overalls and driving a station wagon similar to the one stolen from the murdered family.

They said that the man was no longer wearing the beige T-shirt he had on earlier in the evening — the same kind as the one found near the scene. And his hatchet, which resembled the one found near the bodies, was missing from his tool area. The account was supported by a prison confession and by witnesses who said they saw a similar group in blood-spattered clothes in a nearby bar that night. The women gave the bloody overalls to the police for testing, but the police, by now focused on Mr. Cooper, threw the overalls in the trash.

This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed?

Lanny Davis, who was the White House counsel for President Bill Clinton, is representing Mr. Cooper pro bono. He laments: “The media and the bar have gone deaf and silent on Kevin Cooper. My simple theory: heinous brutal murder of white family and black convict. Simple as that.”

That’s a disgrace that threatens not only the life of one man, but the honor of our judicial system.

Governor Schwarzenegger, are you listening?
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Alon Shalev is the author of The Accidental Activist (now available on Kindle) and A Gardener’s Tale. He is the Executive Director of the San Francisco Hillel Foundation, a non-profit that provides spiritual and social justice opportunities to Jewish students in the Bay Area. More on Alon Shalev at www.alonshalev.com