Uncommon Sense

Did Texas execute an innocent man? (Part 3)

Read Part 3 of the Chicago Tribune series here.

An excerpt:

CORPUS CHRISTI, Texas -- It was a secret they all shared. Some kept it out of fear. Some because no one ever asked. Whatever their reasons, it was a secret that might have saved Carlos De Luna from the execution chamber.

Twenty-three years after Wanda Lopez was murdered in the gas station where she worked, family members and acquaintances of another man, Carlos Hernandez, have broken their silence to support what De Luna had long asserted: Hernandez, a violent felon, killed Lopez in 1983.

A Tribune investigation has identified five people who say Hernandez told them that he stabbed Lopez and that De Luna, whom he called his "stupid tocayo," or namesake, went to Death Row in his place.

They also say he admitted killing another woman, in 1979, a crime for which he was indicted but never tried.

Although some aspects of De Luna's actions on the night of Lopez's killing remain suspicious, the Tribune uncovered substantial evidence that undermines his conviction. Among the findings:

The only witness who came face to face with the killer at the station after Lopez was stabbed now says he was not positive of his identification of De Luna. He identified De Luna, he said, after police told him they had arrested De Luna hiding under a truck near the scene of the attack--information that eased his uncertainty.

The Tribune's analysis of financial records from the Sigmor gas station also undercuts the state's assertion that the killing took place during a robbery, an aggravating circumstance that elevated the murder to a death penalty case. Newly examined inventory documents suggest no money was taken at all.

The prosecution argued that Hernandez was a "phantom," even though one of the prosecutors knew well of Hernandez but failed to inform De Luna's attorneys--a possible legal error that could have been a reason to overturn his conviction.

And one of Corpus Christi's senior detectives at the time of the crime now says he believes De Luna was wrongly executed. The former detective, Eddie Garza, said tipsters told him that Hernandez killed Lopez, the mother of a 6-year-old girl. Yet it appears those tips were not pursued.

Garza knew both men and said Lopez's slaying was the kind of crime Hernandez would commit, not De Luna.

"I don't think [De Luna] had it in him to do something like this and stab somebody to death," Garza said.

But Hernandez, he added, "was a ruthless criminal. He had a bad heart. I believe he was a killer."

Read my thoughts about this story here.

Did Texas execute an innocent man? (Part 2)

The Chicago Tribune series continues.

Read my commentary on Part 1 here.

An excerpt from Part 2:

CORPUS CHRISTI, Texas -- By the time jurors sat down to decide the fate of Carlos De Luna, there was little to debate.

Though no physical evidence linked him to the fatal stabbing of gas station clerk Wanda Lopez, two eyewitnesses did. One said he observed De Luna outside the station with a knife; the other said he saw him leaving the blood-spattered scene.

Then there was the audio recording of Lopez's 911 call, which gave little clue to the killer's identity but graphically documented the attack and Lopez's frantic screams.

"I had nightmares about it for a long time," one juror, Shirley Bradley, recalled. "That tape had a shock-value effect on us. ... It was a clear-cut case."

Finally, jurors rejected De Luna's testimony that another man, Carlos Hernandez, was the real killer. The lead prosecutor scoffed at De Luna's assertion, calling Hernandez a "phantom."

But the jurors who found De Luna guilty and then sentenced him to death in July 1983, five months after his arrest, didn't hear the whole truth.

Hernandez did exist. Not only was he well-known to police in this Gulf Coast city as a violent felon, but the co-prosecutor at De Luna's trial and the lead detective in the case knew Hernandez too.

Four years earlier, they confronted him when he emerged as a leading suspect in a case they handled together--the murder of another Corpus Christi woman.

Jurors heard none of that information. The prosecutor sat silently as his colleague branded Hernandez a figment of De Luna's imagination.

Yet a Tribune investigation shows that the circumstances of Lopez's murder eerily echo the details of Hernandez's lengthy rap sheet--gas station robberies, knife attacks and several assaults on women.

In 1979, he was arrested as a suspect in the slaying of a woman found strangled in her van, an "X" carved in her back, but was released for lack of evidence.

Two months after Lopez's murder on Feb. 4, 1983, Hernandez was arrested while lurking behind a convenience store. In his pocket was a knife.

And over the next six years, while De Luna waited in vain for his legal appeals to keep him from the execution chamber, Hernandez's list of crimes continued to grow.

Did Texas execute an innocent man?

The death penalty is wrong for one basic reason: It takes the life of another.

Even if that person committed the murder for which he was convicted and condemned, each execution will always say more about the society that carries it out — and what it says, is not pretty — than the person who dies.

But what if that condemned person is innocent?

What price do we pay for that?

And where do we then find justice?

Those are questions death penalty supporters should ask themselves after reading the first part of a new Chicago Tribune series.

The newspaper reports that new evidence suggests Carlos De Luna, who was executed in Texas for stabbing a gas station clerk six years earlier in Corpus Christi, was the victim of mistaken identity.

An excerpt:

For many years, few questioned whether Carlos De Luna deserved to die.

His execution closed the book on the fatal stabbing of Wanda Lopez, a single mother and gas station clerk whose final, desperate screams were captured on a 911 tape.

Arrested just blocks from the bloody crime scene, De Luna was swiftly convicted and sentenced to death--even though the parolee proclaimed his innocence and identified another man as the killer.

But 16 years after De Luna died by lethal injection, the Tribune has uncovered evidence strongly suggesting that the acquaintance he named, Carlos Hernandez, was the one who killed Lopez in 1983.

Ending years of silence, Hernandez's relatives and friends recounted how the violent felon repeatedly bragged that De Luna went to Death Row for a murder Hernandez committed.

The newspaper investigation, involving interviews with dozens of people and a review of thousands of pages of court records, shows the case was compromised by shaky eyewitness identification, sloppy police work and a failure to thoroughly pursue Hernandez as a possible suspect.

These revelations, which cast significant doubt over De Luna's conviction, were never heard by the jury.

His case represents one of the most compelling examples yet of the discovery of possible innocence after a prisoner's execution.

Presented with the results of the newspaper's inquiry, De Luna's prosecutors still believe they convicted the right man. But the lead prosecutor acknowledged he is troubled by some of the new information. And a former police detective told the Tribune that he got tips about Hernandez shortly after the crime and now believes the wrong man was executed.

Missing from this case is DNA or some other kind of evidence that could provide conclusive proof of De Luna's guilt or innocence. The store wasn't equipped with a security camera that could have captured images of the killer.

The newspaper learned of De Luna from a Columbia University law professor who had begun to dig up evidence that pointed to Hernandez, who died in 1999.

The possibility of De Luna's innocence played no role in his final appeal, which focused on his lawyers' failure to present any mitigating evidence at his sentencing.

When that failed, and when Texas' governor declined to grant him clemency, De Luna, 27, quietly accepted his fate a few minutes after midnight on Dec. 7, 1989. He thanked the warden for being treated well by the guards and prayed on his knees with the death-house chaplain.

Strapped onto the gurney, chemicals flowing into his veins, De Luna didn't close his eyes. After 15 seconds, he jerked his head up and apparently tried to speak.

Ten more seconds passed. De Luna raised his head again and stared into the chaplain's eyes. De Luna tried again to speak but failed and soon lost consciousness.

The moment was seared into the chaplain's memory. What, he still wonders, was De Luna trying to say?

For more, read Abolish the Death Penalty and Death Penalty Information Center.

Jury gets it right on Moussaoui

The death penalty is wrong, even for a piece of dirt like Zacarias Moussaoui.

His execution might satisfy our thirst for vengeance — even if he was sitting in a jail cell on Sept. 11, 2001 — but what would it tell us about Moussaoui that we already don't know?

Not much.

He hates Americans, and as a member of al-Qaida, wants to kill as many of us as he can. He said as much during his sentencing trial, which culminated Wednesday with the jury's recommendation that he be sentenced to life in prison.

Would his execution stop al-Qaida from wanting to kill us, and worse, trying to kill us?

Not likely.

The more important question — and a question that should guide our thinking about the death penalty in general — is what would executing Moussaoui say about us as a society?

Is the only way we know how respond to violence and mass killings like on 9/11 is with more violence and death?

The sense of vengeance is execution would bring might be sweet, but it would be short-lived and ultimately only an illusion.

Some of the family members of 9/11 victims understand that.

"My husband and I both opposed the death penalty in general. For me, now, this particular case is no exception,” said Andrea LeBlanc, whose husband Robert was a passenger on United Flight 175, the second plane that crashed into the World Trade Center, hitting the South Tower.

“Violence takes many forms and killing another human being will never undo the harm that has been done. Killing Zacarius Moussaoui would not have helped us understand those things that lead to 9/11. Nor would it have helped create the kind of compassionate world I want to live in."

Abolish the Death Penalty has more comments from other family members who opposed the death penalty for Moussaoui.

Bad news for the death penalty

Amnesty International's new report on the death penalty, "The Death Penalty Worldwide: Developments in 2005," repeats a well known statistic worth repeating about the death penalty.

In 2005, 94 percent of the 2,148 executions recorded were carried out in four countries: China (1,770), Iran (94), Saudi Arabia (86), and the United States (60).

Nice company, when you can get it.

The rest of the AI report, however, was not as depressing.

The 2,148 executions were more than 43 percent fewer than the number of executions in 2004.

Also, as noted by the Death Penalty Information Center, "(o)nly 22 countries carried out executions in 2005, down from 25 in 2004. This is the fourth straight year this figure has dropped and it has halved in the last 20 years."

In addition to statistics, the AI report also offers updates on the status of the death penalty in other countries, all evidence that the United States is increasingly out of step — except, of course, with China, Iran and Saudi Arabia — in continuing to carry out the death penalty.

In the United States, the key number to remember about the death penalty is 122.

That is how many people have been released from death row on grounds of innocence.

Two men were added to that list in 2005.

Having a justice system that while far from perfect, offers more protection to condemned prisoners than China, Iran or Saudi Arabia does, does not excuse our abhorant behavior.

Neither does the prevalent use of lethal injections in the United States to carry out executions.

A report released Monday, "So Long as They Die: Lethal Injections in the United States," by Human Rights Watch, suggests that lethal injection is not as "humane" as death penalty proponents might wish it were.

Human Rights Watch and other death penalty opponents have called for a moratorium on the use of lethal injections, to allow time to determine how much pain condemned prisoners are suffering as the poisons enter their arm, especially when compared to other execution methods.

DPIC offers a summary of another startling fact about lethal injections found in the Human Rights Watch report.

(Human Rights Watch), which opposes capital punishment, notes that the current three-drug sequence used in the U.S. (sodium thiopental, pancuronium bromide, and potassium chloride) was developed in 1977 by a medical examiner in Oklahoma who had no expertise in pharmacology or anesthesia. This same drug combination is now used in at least 34 death penalty states. In the years since the protocol's development, it appears that no state has consulted medical experts to determine whether the combination could be altered to lessen the risk of pain.

"The U.S. takes more care killing dogs than people. Just because a prisoner may have killed without care or conscience does not mean that the the state should follow suit," said Jamie Fellner, U.S. program director at Human Rights Watch and co-author of the report, according to DPIC.

On Wednesday, the Supreme Court will hear arguments about the procedures a prisoner can follow to challenge lethal injections, according to DPIC.

Death penalty

Catholic bishops: Jesus showed the death penalty is wrong

Just in time for Good Friday and Easter, Roman Catholic bishops in Missouri have released a new pastoral letter expressing their opposition to the death penalty.

The bishops urged Catholics to follow the teachings of the late Pope John Paul II and be "unconditionally pro-life."

The death penalty in America does not work. It does not deter crime. It puts at risk the lives of people wrongfully convicted.

And worst of all, it puts our collective soul as a nation at risk.

Proponents say they want to be tough on crime and ensure justice is served by executing the worst murderers, but each time a prisoner is executed, society is saying much more about its values — and it's not pleasant — than it could ever say about the condemned.

The timing of the Missouri pastoral letter's release was not a coincidence.

Jesus "was unjustly sentenced to death and executed on a cross, the cruelest form of capital punishment at the time," the bishops wrote.

More violence, they added "is not a solution to society's problems."

The Catholic News Service story continues:

"This pastoral is very timely," said Rita Linhardt of the Missouri Catholic Conference. "The recent court interventions have focused attention on the inhumaneness of executions. As Catholics who believe in the sacredness of life, the use of state-sanctioned killing in our names diminishes us all."

She noted that studies have shown that the death penalty is not a deterrent and that it costs more to execute someone than to put them in prison for life because of the expense of legal appeals.

In addition, she said, 124 people have been let go from death row because of evidence uncovered in their cases that exonerated them. False convictions remain a real fear, in part because of a reliance on eyewitness identifications, she told the St. Louis Review, archdiocesan newspaper.

Linhardt said the bishops continue to be concerned with murder victims' family members. "We have to be sensitive to what they are feeling and recognize the difficult times they're going through."

A sentence of death offers the illusion of closure and vindication, the bishops stated, "but no act, even an execution, can bring back a loved one or heal terrible wounds. The pain and loss of one death cannot be wiped away by another death."

For more on the Catholic Church's opposition to the death penalty, read about the American bishops' Catholic Campaign to End the Use of the Death Penalty.

death penalty, Roman Catholic Church

"20th hijacker" may be spared death

I'm opposed to the death penalty, even for terrorists like "the 20th hijacker," Zacarias Moussaoui, but the government's apparent bungling of Moussaoui's sentencing trial does raise serious doubts about whether the American judicial system is capable of functioning when the defendant is a "soldier" in a war against of the United States. If I were a relative or friend of a 9/11 victim, I would be livid.

If Moussaoui is spared the death penalty because of prosecutorial misconduct/incompetence, it will only boost the arguments by President Bush and others that the best way to deal with al-Qaida and other terrorists is to lock them up in Gitmo or other secret prison and throw away the key. That would be an unacceptable defeat for the United States and an unacceptable victory for the the terrorists.

Whoever screwed up this case, needs to be fired.

Faithful opposition to the death penalty

My opposition to the death penalty is as simple as my opposition to abortion. In both cases, a life is at stake, and it is not my place, nor society's, to decide who lives and who dies. Anything less, and we make a life a mere commodity, cheapening its value for all of us.

The abandonment of my previous ambivalence about the death penalty — some crimes, I thought, were so heinous that the only justified response was to take the killer's life — coincided with a renewed push by American Catholic bishops last year to abolish the death penalty in the United States.

I am a Catholic, but I did not blindly follow their lead. After the priest sex-abuse scandal, the bishops do not deserve that kind of loyalty.

But in their explanations, and as a result of my own thought and reflection, I found it no longer acceptable for me to countenance the death penalty. Mine was not a political decision, but a matter of conscience and faith.

This past Sunday, Arlington, Va., Bishop Paul S. Loverde clearly made that link in his homily during a "Respect Life" Mass:

Loverde preached:

Even as we remain resolute in our resolve to uphold life at its beginning at conception, we are equally aware that innocent life is also unjustly taken at later stages. So, the murder of innocent people is likewise a heinous crime. In the past, the death penalty was used to avenge those crimes against life. However, in recent times, the teaching of the Catholic Church has challenged all of us to rethink our response to the heinous crime of murder.

Permit me to quote from a recent statement by the Catholic Bishops of the United States. “While complex, the teaching of the Universal Church is clear. It has developed over time and has been taught most powerfully in the word and witness of Pope John Paul II. … In Catholic teaching the state has the resource to impose the death penalty upon criminals convicted of heinous crimes if this ultimate sanction is the only available means to protect society from a grave threat to human life. However, this right should not be exercised when other ways are available to punish criminals and to protect society that are more respectful of life … ” (A Culture of Life and the Penalty of Death, II, 2005).

Read all of Loverde's homily here.

A shot to the heart of the death penalty

Legal challenges to California's use of lethal injections to execute condemn prisoners, and doctors' refusals in the case of Michael Morales to deliver the fatal dose, means California is now under a de facto moratorium on executions, according to the Associated Press.

That should be considered at least a temporary victory for death penalty opponents, but a permanent ban on killing condemned prisoners with drugs will likely depend on how the U.S. Supreme Court ultimately decides on whether lethal injections are constitutional. Also not known is whether the campaign to outlaw state-sanctioned lethal injections might boost efforts to abolish the death penalty altogether.

The AP reports:

The case may eventually place the issue of lethal injection before the U.S. Supreme Court. Thirty-seven of the 38 states with capital punishment use a procedure similar to California's.

The high court has yet to weigh in on a question that inmates around the country have been raising in recent years: whether lethal injection is unconstitutionally cruel and unusual.

Last week's ruling in the Morales case by U.S. District Judge Jeremy Fogel shifted the debate subtly to whether licensed medical personnel should play an active role in an execution, something the American Medical Association and other medical groups have long opposed on ethical grounds.

"This is an issue that is ultimately going to have to be resolved by the Supreme Court," said Richard Dieter, executive director of the Death Penalty Information Center. "Because you're ultimately not likely ever going to have doctors in the execution chamber."

The cruelty of the death penalty (UPDATED)

Lawyers for California death row inmate Michael Morales argue that California's three-drug cocktail it uses for executions is "cruel and unusual" — and thus unconstitutional — so a federal judge gave the state three options, including having an anesthesiologist on hand to ensure Morales was unconscious when the drugs were injected.

However, two anesthesiologist objected on ethical grounds, so the scheduled execution this morning was postponed.

The Los Angeles Times reports:

The doctors' withdrawal came at the end of hasty legal maneuvering in U.S. District Court, the Ninth Circuit Court of Appeals and the U.S. Supreme Court. But it was the language in an opinion rendered Monday by the appellate court that had the court-ordered anesthesiologists in mutiny.

The doctors' concerns hinged on the ethics of returning an inmate to consciousness in the event of a botched lethal injection.

Doctors said the ruling raised serious questions about the possibility of having to intervene in the execution "if any evidence of either pain or a return to consciousness arose."

In a statement to the warden, the doctors said, "Any such intervention would be medically unethical. As a result, we have withdrawn from participation in this current process. ... What is being asked of us is ethically unacceptable."

The death warrant for Morales expires at 12:01 a.m PST Wednesday so to avoid having to return to the trial judge to set a new execution date, prison officials tonight will follow a second option proposed by a federal judge: They will kill Morales with an overdose of barbituates.

The legal maneuverings do not address the constitutionality of the death penalty, just how it is administered. But this episode is illustrative of the cruelty and the moral insanity of the death penalty, that it is somehow justified if officials can just find a "humane" way to take a life.

UPDATED, 12:55 p.m. EST

Coincidentally,Death Penalty Information Center reports that "the number of people sentenced to death each year in California has declined by nearly 40 percent since the 1990s."