Death, with an Explanation

On April 23^rd, I wrote about California’s Proposition 7 ballot initiative, an effort by a conservative group that had fought for an expanded capital punishment law in 1978 now to repeal the state’s popular death penalty as being financially untenable, wasting literally billions of dollars since the law was enhanced. With the judicial appellate safeguards, the special housing and the actual cost of the execution, across the land the price tag for executing criminals is always a vast multiple above the cost incarcerating them for life without parole. Simply put, in these financially impaired times, particularly in deficit-slammed California, capital punishment might not be affordable anymore.

But there is, to me anyway, a more compelling reason to do away with the death penalty: every now and again we simply execute an innocent. There is no “re-opening the case” based on new evidence, whether it’s strong DNA (or whatever future scientific method may be applied) or a recanting witness or simply proving someone else was the actual perpetrator through confession. Death is final. Sure you can argue there are clear cases where people are caught on camera doing the nasty deed, and in those cases, where there is absolute certainty, the death penalty should be allowed. But as a lawyer, I also know that if “absolute certainty” were the standard instead of “beyond a reasonable doubt,” there would still be fudging in the court as prosecutors seek to add another conviction notch to their upwardly mobile careers. Innocents would still be railroaded even with a statutory standard meant to prevent that possibility.

The statistics on recent wrongful convictions in the United States send chills down my back: “As of April 2012, 289 people previously convicted of serious crimes in the United States had been exonerated by DNA testing since 1989, seventeen of whom had been sentenced to death. Almost all (99%) of the convictions proven to be false were of males, with minority groups also disproportionately represented (approximately 70%).” Wikipedia. Texas license plates should read “The Execution State,” with almost four hundred executions since 1976, almost ten times the rate in the second highest state, Georgia. And so it is pretty obvious that Texas should provide the example I would like to talk about today.

“Carlos De Luna [left above] was executed in 1989 for stabbing to death a gas station clerk in Corpus Christi six years earlier. It was a ghastly crime. The trial attracted local attention, but not from concern that a guiltless man would be punished while the killer went free… De Luna, an eighth grade dropout, maintained that he was innocent from the moment cops put him in the back seat of a patrol car until the day he died. Today, 29 years after De Luna was arrested, [Columbia University law professor James Liebman and a team of students] published a mammoth report in the Human Rights Law Review that concludes De Luna paid with his life for a crime he likely did not commit. Shoddy police work, the prosecution's failure to pursue another suspect, and a weak defense combined to send De Luna to death row, they argued.” Huffington Post, May 15^th.

The report noted that De Luna’s own lawyer didn’t believe his client was innocent, thus mounting an insipid defense, and the list of key errors that could have easily swayed a jury to a different result includes:

Among the key findings in the Columbia team's report:

• The eyewitness statements actually conflict with each other. What witnesses said about the appearance and location of the suspect suggest that they were describing more than one person.
• Photos of a bloody footprint and blood spatter on the walls suggest the killer would have had blood on his shoes and pant legs, yet De Luna's clothes were clean.
• Prosecutors and police ignored tips unearthed in the case files that Carlos Hernandez [right above], an older friend of De Luna, who had a reputation for wielding a blade, had killed [the victim, Wanda] Lopez. The defense failed to track down Hernandez, who bore a striking resemblance to De Luna.

‘If a new trial was somehow able to be conducted today, a jury would acquit De Luna’ said Richard Dieter, executive director of the Death Penalty Information Center, who read a draft of Liebman's report. ‘We don't have a perfect case where can agree that we have an innocent person who's been executed, but by weight of this investigation, I think we can say this is as close as a person is going to come.’” Huffington Post.

For those who say, the system is not perfect, but for the overwhelming majority of felons who meet their fate in the state lethal injection chamber (or even via Utah’s optional firing squad), they get what they deserve… well worth the very few who are executed wrongfully, I ask, “What if that wrongfully convicted person were actually you? Would you feel good that the system was working… well enough?”

I’m Peter Dekom, and it should be a very, very big deal to Americans that innocent people are executed for capital crimes they did not commit.