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Attorney and co-author of The Wrong Carlos Writes Op-Ed About Commuting the Row

President Biden Must End the Federal Death Penalty | Opinion

By Andrew Markquart, Staff Attorney, Great North Innocence Project

6/14/21 AT 6:30 AM EDT

Newsweek - "I didn't do it, but I know who did."

Those were the words of Carlos DeLuna, a young Latino man who Texas executed in 1989. At trial, DeLuna said that another man—Carlos Hernandez—murdered Wanda Lopez, a single mother stabbed to death while working at a convenience store in Corpus Christi.

The prosecution told the jury that Carlos Hernandez was a "phantom" DeLuna made up. In reality, police and prosecutors knew Hernandez, knew of his history of convenience store robberies and knew he used the same kind of knife that killed Lopez to kill another young Latina woman and to nearly kill a third.

A decade ago, as a law student at Columbia University, other students and I reviewed thousands of pages of trial transcripts, government files and witness interviews to uncover the truth: The state arrested, convicted and executed the wrong Carlos. Our team even discovered a 40-minute audiotape of the police manhunt just after the murder. The tape—which police kept from the jury during the trial—showed that officers chased another man matching the description of Hernandez's clothes (but not DeLuna's) for 30 minutes before arresting DeLuna.

Investigators' tunnel vision following their faulty arrest then led them to ignore multiple signs that they had the wrong guy. Content to convict and condemn DeLuna absent any forensic evidence linking him to the crime, police and prosecutors ignored crime scene photos our team discovered years later showing the perpetrator's bloody shoe print, which didn't match DeLuna's blood-free tennis shoes.

Instead of hard evidence, the state rested its case largely on a single eyewitness identification—testimony that is highly fallible even under circumstances far better than the nighttime, cross-ethnic identification here. Worse, DeLuna and Hernandez looked so much alike that friends and family members mistook each for the other.

Also missed by the authorities: Hernandez's own confessions to friends and family that he killed Wanda Lopez and let DeLuna take the fall—leaving Hernandez free to terrorize those very same people.

In a new documentary about DeLuna, The Phantom, Rene Rodriguez, the lawyer for Wanda Lopez's family, explained that local officials didn't care enough about DeLuna or the victim herself to get it right: "If it involves somebody of color, they don't give a sh--. That's one less Mexican. That's the way it was back then."

The DeLuna case is not an isolated incident. The same flaws—mistaken eyewitness testimony, poor legal representation, misuse of forensic evidence, misconduct by police and prosecutors—continue today to send innocent people to prison and even death row.

Since 1973, 185 people on death row have been exonerated through evidence of their innocence, according to the Death Penalty Information Center. At least one in 25 people sentenced to death in the United States is innocent, according to one study. This risk of wrongful execution cannot be justified by countervailing societal benefits given the high financial cost of carrying out the death penalty and the lack of any meaningful deterrent effect.

The odds are especially stacked against people of color. A 2014 study in California found that white jurors were more likely to sentence poor Latino defendants to death than poor white defendants. Nationwide, Black people who are convicted of murder are about 50 percent more likely to be innocent than others convicted of murder. Innocent African Americans also spend longer in prison before being exonerated.

The DeLuna documentary arrives as the country is moving away from the death penalty. Despite a spree of federal executions at the end of the Trump administration, 2020 saw fewer executions than any year in nearly three decades. For six straight years, the nation has had in each year fewer than 30 executions and fewer than 50 death sentences.

In March 2021, Virginia abolished the death penalty, the first state in the South to end capital punishment. Including the three states where governors have imposed moratoria on executions, a majority of states (26) plus D.C. no longer use the death penalty. This trend is in part the result of increasing awareness of the risk—and reality—of wrongful executions.

Against this backdrop, prominent groups like the New York-based Innocence Project, Witness to Innocence (an organization of death row exonerees), current and former prosecutors, civil rights organizations and others are calling on President Joe Biden to commute the sentences of 46 people on federal death row. The moral example the president sets may inspire other states to stop needlessly risking the loss of innocent life through executions.

As long as human beings are in charge, mistakes will occur. Clearing federal death row is the only way to make sure that the U.S. government does not execute an innocent person like Carlos DeLuna.


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