Law review: Texas executed wrong Carlos based on biasing eyewitness procedures

A new e-book published by a law journal argues that Texas probably executed an innocent man in 1989, and predictably the potential cause was reliance on a single, shaky eyewitness to obtain a conviction after police allegedly picked up the wrong "Carlos." According to the Houston Chronicle:

Accounts of the crime, the investigation and DeLuna's prosecution were presented in a 400-page article published Tuesday in the Columbia Human Rights Law Review. Columbia University Law School authors argue that the crime actually was committed by Carlos Hernandez, a DeLuna acquaintance with a history of convenience store robberies. Hernandez, the article says, boasted of killing the store clerk

DeLuna was executed by injection in 1989. Hernandez died in prison, convicted of a knife attack on a female acquaintance, in 1999.

Of four people who saw events connected to the crime, only one, car salesman Kevan Baker, saw Lopez struggle with her assailant, the journal article says. Baker initially described a man who did not resemble DeLuna but changed his story after police brought DeLuna to the store.

Baker later told researchers he was only 70 percent sure of his identification, the journal says. Had police not told him DeLuna had been apprehended nearby, he would have been only 50 percent certain, he said.

A retired Corpus Christi police detective said confidential informants told him at the time they'd arrested the wrong "Carlos" for the crime, but after the eyewitness picked out DeLuna he dropped the issue because it was somebody else's case.

The Chronicle pointed out that new procedures Texas law-enforcement agencies must have in place by September 1 may mitigate such questionable IDs going forward, which is true at least to the extent departments adopt best practices enshrined in the recently developed model policy or something close to it:

Legislative sponsors of a law tightening procedures for police lineups on Tuesday faulted Corpus Christi police for allowing eyewitnesses in a 1983 convenience store robbery-murder to identify the suspect as he sat handcuffed in the back seat of a squad car.

State Sen.  Rodney Ellis, D-Houston, and Rep. Pete Gallego, D-Alpine, stopped short of claiming Texas wrongfully executed suspect Carlos DeLuna for the February 1983 murder of store clerk Wanda Lopez.

Gallego, however, said the way Corpus Christi police handled the suspect's identification was a "textbook example" of why the system needs to be reformed.

"What appears to be very faulty eyewitness identification was the main evidence used to reach a conviction in this case," Ellis said in an email.

"... The chief witness appears to have gone back and forth on how certain he was that Mr. DeLuna was the culprit. You cannot have this level of uncertainty in death penalty cases."

The Law Enforcement Management Institute of Texas (LEMIT) at Sam Houston State which developed the model policy is currently doing train the trainer seminars to help departments prepare for the transition.

One of the LEMIT policy provisions would require departments to record eyewitness identification sessions using either video or audio, or else record the reason why that couldn't be done. And the model policy instructs officers not to share information about the suspect with a witness that might bias their memory, as was done here. Those procedures certainly may have made a difference in DeLuna's case. It's doubtful even a Texas jury in 1983 would have been so bloodhirsty as to send a man to execution based on a witness who was "50 percent certain." Indeed, without having read the massive document, on the surface there seem to be (at least) two issues here: The failure of identification procedures and a possible Brady violation if prosecutors failed to inform the defense of the witness' waffling.

In the Bible, Moses, Jesus and the Apostle Paul all iterated that at least "two or three witnesses" were necessary to accuse someone under biblical law. DeLuna's example shows why that cautionary provision is probably still a good idea. Particularly when identifying strangers, eyewitnesses can be notoriously unreliable.

DeLuna joins a notable list of "probably nots" on Texas' executed list, notes the Chronicle: "Innocence Project co-director Barry Scheck hailed the journal article as a 'terrific job,' saying that the DeLuna case will join those of Cameron Willingham, Claude Jones and Ruben Cantu in forming a stern indictment of the Texas death penalty." Grits does not share Scheck's sanguine belief that demonstrating an innocent person has been executed would result in death-penalty abolition. Grimly, the public is willing to live with a few mistakes, but the list of potential, even probable errors is growing.