Obscurity, in fact, lies at the root of this tragedy and affected all of its victims. It contributed as much to Wanda Lopez's premature and undeserved death as to Carlos DeLuna's. As lawyer Rene Rodriguez expressed so eloquently through his groundbreaking lawsuit against Diamond-Shamrock and in his interviews for this case, if anyone had cared just a whit about the safety of Wanda Lopez, she likely would be alive today.78 Her employer didn't do so. Neither did the Corpus Christi Police Department, which almost certainly could have saved her if it had responded to her initial 911 call, rather than taking steps, after the fact, to obscure evidence that it took place.79 Indeed, the police probably could have saved Wanda Lopez if they had responded properly to her second 911 call when she made it, not a minute and a half later, after grilling her as if she were the guilty party.80
It is accepted anti-death penalty lore that the worst injustices occur in cases involving the worst imbalances of status and power—the prosecution, say, of a poor, friendless, and uneducated Latino or African-American outsider for the death of a pillar of the local white community.81 Our work in this case leads us to a different conclusion. Wanda Lopez's worthy and unimpeachable life82 was dishonored not only by the inattention to her plight on the night of February 4, 1983, by everyone in a position to help her, but also by the nonchalance with which everyone in a position to find her killer carried out that responsibility.83 Her obscurity in life, which forced her, through no fault of her own, into a position of defenselessness in the face of the likes of Carlos Hernandez, should not have been repaid by the indifference of police, for example, to crucial items of evidence her killer left at the crime scene, but no one found.84
It is the case of the obscure accused of murdering the obscure, we believe, that is the most ripe for miscarriage, particularly when it becomes embroiled in the cauldron of state killing.85 As Reverend Pickett pointed out in his interviews for this project, the capital context is so fraught and abnormal that functionaries and news reporters cannot even keep straight the last meals and last words of the condemned.86 How then can we expect police, prosecutors, and defense lawyers to exercise the meticulous care that supremely complicated capital investigations, trials, and appeals require, if they are to end in a reliable verdict? And how especially can we expect that in cases to which little real attention is paid because of the low status of the principals to the case? When the obscurity of the victim and the accused coincide, the chances of a proper capital outcome are unbearably low.
* * * * *
The case of Carlos DeLuna first came to Professor James Liebman's attention in late 2003. Professor Liebman and Douglas Jaffe, then a Columbia law student and now a technologically savvy public education reformer, were looking for Texas executions predicated on what many observers believe is the most powerful and least reliable of evidence: eyewitness testimony.87 The case came to light because DeLuna's conviction rested mainly on an identification (quite shaky, it turns out88) by a single person—Kevan Baker. Although George Aguirre and Julie and John Arsuaga also identified DeLuna, none of them actually saw the killing taking place, and it is likely that the Arsuagas' sighting of DeLuna two blocks from the filling station provided him with an alibi—not corroboration of his guilt—given that it occurred at the same moment as Baker saw the killer fleeing the gas station in the opposite direction.89 Liebman and Jaffe's search was an outgrowth of Professor Liebman's Broken System studies, which documented exceptionally high rates of serious error in capital cases reviewed by state and federal courts between 1973 and 1995.90 Nearly all of that error, it turned out, was the kind that undermines the factual reliability of the determination in each case that the defendant committed the crime or that he deserved to die for it.91
One possible implication of the Broken System studies is that where there's smoke there's fire—where there's a lot of legal error undermining the reliability of verdicts, there's likely to be at least an occasional factual error of sufficient magnitude to threaten the life of an innocent defendant.92 The opposite implication may also be drawn, that the care courts take to find and cure legal error assures the accuracy of executions.93 Liebman and Jaffe's search was designed as a first, meager stab, in a few cases in a single state, at sorting out those competing possibilities. Along with examining trial transcripts in some unscientifically chosen eyewitness cases, Liebman and the Columbia law students assisting him read news reports on the cases, examined prisoners' last words to see if they had confessed, and conducted preliminary investigations in a handful of cases from which DeLuna's emerged as the Columbia team's main focus. Their work was assisted by friends at the NAACP Legal Defense Fund, the Innocence Project, and the Gulf Region Advocacy Center and by Michael Banks, William Belford, Chuck Blitz, Ruth Friedman, Sam Gross, Mysti Hillis, Henry Liebman, Rick Perez, Reid Pillaphont, Susan Swanson, and Columbia law students Alexandra Blaszczuk, Leslie Demers, Abshir Kore, David Mattern, Kate McCoy, Laura Lynn Noggle, Jonathan Waisnor, and Kate Weisburd.
* * * * *
Cf. James S. Liebman, Overproduction of Death, 100 Colum. L. Rev. 2030, 2078 (2000):
An outsider only recently arrived in the community—often a rural or small-town community—is charged with taking the life of a local citizen. Typically, the outsider is young, poor, urban, male, and African American or Latino; if he is white, he is probably a drifter and probably has a criminal record in another State. The victim, on the other hand is probably white, a respected member of the community, most usually a merchant or law enforcement officer. The accused and the victim do not know each other; the latter had no particular reason to expect that the crime would occur as and when it did; in all likelihood, the homicide occurred in the course of some other serious felony, usually a robbery. The evidence against the accused seems strong.
Such an offense obviously will shock, frighten, and enrage the community. That of course is why the community reserves its most severe punishment for such offenses.
See supra Chapter 1, notes 13–26, 51–52, 63–70 and accompanying text; supra Chapter 2, notes 116–132 and accompanying text; supra Chapter 3, notes 70–101, 132 and accompanying text; supra Chapter 4, notes 111–116 and accompanying text; supra Chapter 9, notes 59–71, 90, 93–105 and accompanying text; supra Chapter 10, passim; supra Chapter 11, notes 215–254 and accompanying text; supra Chapter 12, notes 7–19 and accompanying text; supra Chapter 15, notes 1–10, 44–50, 69, 192 and accompanying text.
For other examples, see infra notes 146–150 and accompanying text.
Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville Texas (Feb. 26, 2005) at 22:17:05:
Even Carlos's final words are not accurate in that book [prepared by the Texas Department of Corrections to record death row inmates' last meals, last statements and other such information]. In fact, they're not accurate in any book, or in a magazine. I would tell the convicts and the inmates, "The only way they're going to quote exactly what you say is if you say nothing." And this is true of many people. What Carlos said—I'm five inches from his leg. I would hear what he said, I would—We practiced, ok? He and I practiced at 11:30 what he wanted to say. So I knew what he wanted to say. Some of them wanted me to help them do it, and I couldn't do it. I was not allowed to. But I know that there was a person writing down, exactly, his words. And [Houston Chronicle reporter] Kathy [Fair] got them pretty close. But the ones in this book, and the ones that were on TV. And I'm not knocking reporters. The media just doesn't —They're down there in shock. Ted Koppel is considered one of the greatest people in the world in the media. And he watched an execution. He came to watch the execution of Mario Marquez, who was mentally retarded, who was very much, in my mind, like Carlos. Very much like him. And I was interviewed by Ted Koppel. And I told him, "If you witness this, you're not going to hear or report exactly what he says." He said, "What do you mean?" I said, "Because your emotions are going to be involved." And he went on his TV program and quoted what he [Mario Marquez] said, and it was totally wrong.
See, e.g., Brian L. Cutler & Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology and the Law 12–13 (1995) (reporting studies suggesting that eyewitness identifications may be mistaken over half the time); Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 45–83 (2011) (offering variety of explanations for the eyewitness misidentifications revealed by DNA exoneration cases, including suggestive police procedures, stacked lineups, and prejudicial remarks by police to witnesses, as well as flaws in the Supreme Court's test for assessing eyewitness reliability); Kevin Jon Heller, The Cognitive Psychology of Circumstantial Evidence, 105 Mich. L. Rev. 241, 248–49, 252–54 (2006) (summarizing research documenting high error rates in eyewitness identifications); Katherine R. Kruse, Instituting Innocence Reform: Wisconsin's New Governance Experiment, 2006 Wis. L. Rev. 645, 652–55 (summarizing the literature criticizing the reliability of eyewitness identifications); Gary L. Wells & Elizabeth A. Olson, The Other-Race Effect on Eyewitness Identifications, 7 Psychol. Pub. Pol'y & L. 230 (2001) (documenting the unreliability of cross-racial eyewitness identifications).
See Andrew Gelman et al., A Broken System: The Persistent Pattern of Reversals of Death Sentences in the United States, 1 J. Empirical Legal Stud. 209, 214 (2004); James S. Liebman et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It 58 (2002), available at http://www2.law.columbia.edu/brokensystem2/report.pdf.
See Andrew Gelman et al., A Broken System: The Persistent Pattern of Reversals of Death Sentences in the United States, 1 J. Empirical Legal Stud. 209, 218–23 (2004); James S. Liebman et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It 40–43 (2002), available at http://www2.law.columbia.edu/brokensystem2/report.pdf.
See Andrew Gelman et al., A Broken System: The Persistent Pattern of Reversals of Death Sentences in the United States, 1 J. Empirical Legal Stud. 209, 260–61 (2004); James S. Liebman et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It 5–7 (2002), available at http://www2.law.columbia.edu/brokensystem2/report.pdf.
See Andrew Gelman et al., A Broken System: The Persistent Pattern of Reversals of Death Sentences in the United States, 1 J. Empirical Legal Stud. 209, 260 (2004) ("Other death-penalty supporters find no cause for alarm in high rates of court reversal in capital cases. The death-penalty advocates have two main arguments, which, interestingly, go in opposite directions. On one hand, they argue that appellate judges are politically biased or are reversing based on technicalities. On the other, they claim that the high reversal rates are evidence that the system works, because the courts are scrutinizing death verdicts carefully and finding errors.").