Los Tocayos Carlos
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All Epilogue Footnotes

One attribute of prior treatments of the case that we have not wanted to change is their accessibility not only to lawyers, policymakers, and people with strong views on American criminal justice and the death penalty, but also and more importantly to a broader audience of unaligned members of the lay public. That aspiration accounts for our narrative and vernacular style—our attempt to tell the story as a story—as well as for use of bibliographic notes in lieu of footnotes in the printed version of our monograph.

Although we have deviated from law review orthodoxy in these respects, we embrace that orthodoxy in other respects, principally its insistence upon the demonstrated accuracy of the individual statements, descriptions and quotations in the monograph, as well as the reasonableness of inferences drawn from what is known. To provide an independent check on accuracy and reasonableness, we have endeavored to take full advantage of two peculiarities of student-edited law reviews, which are not generally conducive to wide readership: (1) their penchant for comprehensive references supporting every statement, description and quotation, as well as the general drift of the monograph, and (2) the student checking of all such references for accuracy and reasonableness.

To accomplish the contrary goals of broad accessibility to a lay audience and meticulous references and reference checking, we have adopted a multi-media strategy. Back-stopping the published narrative is a website that links the text to comprehensive endnotes supporting each important factual statement in the narrative, typically with liberal quotations of the supporting primary materials. Those endnotes, in turn, link the reader directly to the underlying primary materials that are cited in the endnotes, such as videotaped witness interviews, police reports, and court documents.

We hope that access to a readable text, an underlying layer of comprehensive references and quotations, and an even deeper layer of all the primary materials in the case will assist readers in reaching their own independent conclusions about what happened and what implications to draw. That, finally, is our most central aspiration in presenting the case in such detail and in a variety of formats and media: to enable readers of most stylistic, intellectual, and ideological predilections to reach an independent conclusion, fully supported by the known facts, about what happened and what it means.

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We have used this Epilogue in part to present our own conclusions on these matters, which probably will not surprise readers who have made it this far. Our criminal justice system is supposed to punish people for what they demonstrably did, not for who they are, even people like Carlos DeLuna whose lives have certainly not been without sin. But in our estimation, captured by the words of DeLuna's last lawyer, Kristen Weaver, Carlos DeLuna slipped through the cracks.144 He was arrested because he fit the bill, and he was convicted and condemned because no one cared enough to use the many tools at hand to discover what really happened. So, too, did Wanda Lopez slip through the cracks of a law enforcement process supposed to protect law-abiding people like her.145 In neither case did the responsible players ensure that justice was served or that the equal protection of the laws was afforded. No one cared enough about these two poor and obscure Hispanic residents of Corpus Christi, Texas to pursue the truth.

Carlos DeLuna's is not only case in which similar conclusions may be warranted. There are a growing number of executed individuals whose guilt has been called into serious question after significant post-execution investigations. These include Ruben Cantu,146 Larry Griffin,147 Claude Jones,148 David Spence,149 and Cameron Todd Willingham,150 all obscure individuals and all, save Jones and perhaps Spence, convicted of killing individuals of no greater social status or interest to the authorities than themselves. Together with these other cases, the probability that Carlos Hernandez stabbed Wanda Lopez to death and took pleasure in having his tocayo Carlos DeLuna take the fall invites questions that perhaps should trouble our sleep, just as the blood on Hernandez's hands seems, in the end, to have troubled his.151 How much doubt can we tolerate as a society while we continue to put human beings to death for crimes they may not have committed? How much more evidence do we need that our system allows the innocent to be executed?

See supra Chapter 16, note 144 and accompanying text.

See supra notes 78–80 and accompanying text.

See Lise Olsen, Did Texas Execute an Innocent Man?, Hous. Chron. (July 24, 2006), available at (raising questions about a San Antonio, Texas capital conviction and execution that were premised on the identification of seventeen-year-old Ruben Cantu by a single eyewitness who has since recanted his claim that Cantu was the killer and presenting a sworn statement by Cantu's codefendant, who was convicted but escaped execution for the crime, that Cantu was not involved).

See Terry Ganey, After Execution, Case Is Reopened, St. Louis Post-Dispatch (July 12, 2005), at A1 (describing NAACP report finding that the critical witness who identified executed inmate Larry Griffin as the killer had not even been at the crime scene and that a person injured by a stray bullet had seen the shooters and stated that Griffin was not one of them) , available at; Kate Zernike, Executed Man May Be Cleared in New Inquiry, N.Y. Times (July 19, 2005), available at; but cf. Robert Patrick & Heather Ratcliffe, Review Defends Execution, Prosecutor's Finding, St. Louis Post-Dispatch, July 12, 2007, at A1, (describing investigation by prosecutor's office disputing the NAACP's claims).

See generally Dave Mann, DNA Tests Undermine Evidence in Texas Execution, Tex. Observer (Nov. 11, 2010), available at (reporting results of recent posthumous DNA testing, which revealed that a hair found at a robbery-murder crime scene, which was identified at Claude Jones's trial as "matching" his hair using since discredited "microscopic hair analysis," did not belong to Jones; noting that, although the hair provided virtually the only evidence that Jones was the killer, then-Governor and President-elect George W. Bush declined to permit DNA testing prior to Jones's Dec. 7, 2000 execution).

See Raymond Bonner & Sara Rimer, A Closer Look at Five Cases That Resulted in Executions of Texas Inmates, N.Y. Times (May 14, 2000), available at (reporting that two of six jailhouse informants who testified against Spence at his capital trial have recanted their stories since he was executed, and that experts studying bite marks used as crucial evidence against Spence found that the marks do not match Spence's teeth); Cindy V. Culp, Lake Waco Murders: Efforts Underway to Exonerate Man Convicted of Famed Slayings, Waco Tribune-Herald, May 5. 2011, at (discussing efforts to exonerate life-sentenced co-defendant of David Wayne Spence; Spence was executed for the crime in 1997); Bob Herbert, The Wrong Man, N.Y. Times (July 25, 1997), available at (noting that the lead detective on David Spence's case has come to believe that Spence was innocent).

See David Grann, Trial by Fire, The New Yorker (Sept. 7, 2009), available at (casting serious doubt on nearly all of the evidence used to conclude that a house fire that killed Cameron Todd Willingham's daughters was intentionally set, rather than accidental, and exposing the scientifically unsound methods used to conclude that the fire was caused by arson); Steve Mills & Maurice Possley, Man Executed on Disproved Forensics, Chi. Trib. (Dec. 9, 2004), available at,0,1173806.story (discussing absence of reliable evidence supporting Willingham's conviction and execution).

See supra Chapter 7, notes 150–157 and accompanying text; supra Chapter 8, notes 60–64, 102 and accompanying text; supra Chapter 17, notes 31–33 and accompanying text.

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