The banality of wrongful executions.

Author:Garrett, Brandon L.

LOS TOCAYOS CARLOS. By James Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky. Print version, 43 COLUMBIA HUMAN RIGHTS LAW REVIEW 711, 711-1152 (2012), online version with footnotes, available at hrlr/ltc/chapter/editors-note/1.html.

ANATOMY OF INJUSTICE: A MURDER CASE GONE WRONG. By Raymond Bonner. New York: Alfred A. Knopf. 2012. Pp. xv, 283. Cloth, $26.95; paper, $16.

IN DOUBT: THE PSYCHOLOGY OF THE CRIMINAL JUSTICE PROCESS. By Dan Simon. Cambridge and London: Harvard University Press. 2012. Pp. 222. $45.


"I didn't do it," said Carlos DeLuna before his 1989 execution in Texas for a 1983 murder in Corpus Christie (Liebman et al., p. 1102). Three decades after the murder, we now know that he likely did not do it. And we know who likely really did do it. At the time, DeLuna's execution went unnoticed: there were no candlelight vigils, no petition drives, no international media, and no last-minute clemency requests. DeLuna was, coincidentally, executed in the same year that DNA testing first exonerated a convict in the United States. Since 1989, a drumbeat of wrongful convictions has generated headlines and captured the public imagination. (1) In eighteen cases to date, DNA tests have played a role in preventing wrongful executions of innocent men on death row, and since the 1970s, over a hundred more death-row inmates have been exonerated by non-DNA evidence. (2) Some of those cases have attracted real attention, but most have not.

What is so haunting about the known wrongful convictions is that those cases are the tip of the iceberg. Untold numbers of unnoticed errors may send the innocent to prison--and to the death chamber. That is why I recommend to readers a trilogy of fascinating new books that peer deeper into this larger but murkier problem. Outside the rarified group of highly publicized exonerations, which have themselves done much to attract attention to the causes of wrongful convictions, errors may be so mundane that no one notices them unless an outsider plucks a case from darkness and holds it to the light.

That is what happened in the Carlos DeLuna case, which drew no attention at the time and remained in near-total obscurity until Professor James Liebman (3) and a team of five law students painstakingly dissected the case in their book Los Tocayos Carlos (the Carlos look-alikes). Their book was the product of an in-depth investigation of the case, from the first 911 call to the police through the execution and the evidence gathered since. They have also published the results online, including multimedia and images of key documents that they uncovered. (4) The result is an exhaustive postmortem. Whether political theorist Hannah Arendt was right to call Adolf Eichmann a banal person caught up in a twisted Nazi culture that made evil seem normal--that is another question. (5) But cases like DeLuna's show how entrenched failures of our criminal justice system can make the individuals involved seem all too banal, even if some were by turns plodding, incompetent, misguided, or even malicious.

In Anatomy of Injustice: A Murder Case Gone Wrong, journalist Raymond Bonner (6) presents a vivid account of tunnel vision gone wrong, but a case in which the system did eventually--if only partially--right itself. Bonner unravels the case against Edward Lee Elmore, a mentally retarded black man who was sentenced to death in South Carolina in 1982 (the year before DeLuna's trial in Texas). Once again, the outcome was not due to one "bad guy" but rather to a criminal justice system with practices and procedures that, predictably, create errors that are very difficult to correct.

While the Liebman team drills deeply into one case, Professor Dan Simon's book, In Doubt: The Psychology of the Criminal Justice Process, (7) takes a panoramic, empirical view of the larger problem (Simon, p. 1). Simon digested decades of social science research into a readable and concise book. And an important lesson emerges once the banality of wrongful convictions is cast in the mold of cognitive research: Individual actors may not act as "evil" villains trying to frame an innocent person. They may tend to assume that a suspect is guilty (Simon, p. 24). Well-intentioned criminal justice actors, however, can be precisely the ones to fall prey to a guilt-bias and make errors, particularly when working in groups in law enforcement agencies (Simon, pp. 28-29). Ordinary tendencies to confirm prior theories, susceptibility to tunnel vision, and other everyday cognitive biases may blind criminal justice actors to alternative theories and entrench their views, even when they are wrong. The fault for any one wrongful conviction does not simply lie with a few bad actors--even malicious actors depend on the cooperation and support of many others--but with an entire system that we must all take responsibility for improving.

Slowly but surely, many jurisdictions have adopted important reforms that can help prevent such miscarriages of justice. These reforms include the following: improved eyewitness identification procedures, particularly blind lineups; reformed interrogation practices and videotaping of interrogations; scientific oversight of forensics; increased discovery in criminal cases; new institutions for reviewing potential errors and claims of innocence; and broader standards for considering newly discovered evidence of innocence postconviction. (8) After reading any one, but hopefully all three of these important books, many more will hopefully take up the call for reform.


    Carlos DeLuna was executed on December 7, 1989 (Liebman et al., p. 719). Los Tocayos Carlos is so detailed and exhaustive in its search for what went wrong that readers can misapprehend that there was something inevitable about his ultimate execution. Yet what makes the story so powerful and troubling is that readers are reminded each step of the way how little evidence there ever was of his guilt and how contingent the rush to judgment was that led to his execution.

    The DeLuna case is particularly unsettiing for two reasons. First, the case's near-complete "obscurity" is "a far better representation of what usually goes on" in typical criminal cases than "the facts and proceedings in more notorious and idiosyncratic cases" (Liebman et al., p. 1116). Second, it exposes how easy it can be to sentence someone to death: A single, shaky eyewitness. No DNA or other forensics. No confession. Not even a murder weapon. The jurors must be convinced beyond a reasonable doubt that the defendant did it, but if they never hear an alternative story, they may accept what they are told--however flimsy--even in a death penalty case. The authors conclude, "How much more evidence do we need that our system allows the innocent to be executed?" (Liebman et al., p. 1118).

    DeLuna was convicted and sentenced to death for the vicious murder of a young woman working as a clerk at a gas station convenience store in one of Corpus Christi, Texas's tough neighborhoods. The victim had called the police before she was murdered. In a chilling 911 call, she described a frightening person in the store before letting out a scream. The police who eventually responded sent out a radio call with an eyewitness's description of a "Hispanic man, about 5 foot 9, wearing a flannel shirt and a gray sweatshirt," seen running away from the gas station (Liebman et al., p. 737). Forty minutes into a haphazard and confused police search of the surrounding streets, DeLuna was found a few blocks from the crime without a shirt and hiding under a truck (Liebman et al., p. 748). It was, as the Texas Death House chaplain later said, a "childlike" response to hide under a truck, and not the response of "[t]he average convict" (Liebman et al., p. 719). DeLuna's supposed motive was unclear. Nor was the murder clearly a robbery; as the Liebman team concluded, there was at best 20 dollars missing from the store (Liebman et al., p. 784).

    The police brought DeLuna back to the crime scene to obtain an eyewitness identification. There were four eyewitnesses (Liebman et al., p. 761). All of them refused to try to identify DeLuna. With the police pleading for them to cooperate, two eyewitnesses decided to try to identify a suspect. One tried, but at a later preliminary hearing in the case, he was unable to identify DeLuna (Liebman et al., p. 764). The other, who had seen the killer run out of the store, was walked over to a patrol car surrounded by police, where they had DeLuna shirtless and handcuffed in the backseat with flashlights shining on him. The eyewitness was told beforehand, "We found him. Is this the gentleman? He was hiding underneath a car" (Liebman et al., p. 761). The police then elaborated, "[W]e found this guy hiding underneath a car without a shirt on, two blocks north of us or three blocks north of us"...

To continue reading