Justice without Doubt

On July 9 this excellent editorial ran in the Dallas Morning News (posted in its entirety):

Justice Without Doubt: Questionable death cases call for review

The unrelenting hunt for error in Texas’ death chamber has flushed out yet another possibility of fatal miscarriage of justice.

A Chicago Tribune series about the 1989 execution of Carlos De Luna of Corpus Christi stirs doubts that the right man was put to death for the grisly knife slaying of a gas station clerk, Wanda Lopez.

Yet, as in other recent cases, the state is impotent in the matter because it lacks an apparatus to delve into questions of fatal error. And the Nueces County district attorney’s office has indicated no interest in re-examining the case. This sense of cold indifference is a disservice to Texans who care about the quality of justice in each of 368 executions carried out in their names since 1982.

The facts of the De Luna case make a powerful argument for action.
Like many murder defendants, Mr. De Luna was not a sympathetic figure. He had a criminal record that included attempted rape and did two stints in prison. After Ms. Lopez was found dying at the blood-drenched station, police found Mr. De Luna hiding under a truck nearby.

But they couldn’t find any blood on him or any other physical evidence. They did find two witnesses who said they could place him at the station, although one later admitted doubts, according to the Tribune.

Police had something else: The name of another possible suspect, Carlos Hernandez, a vicious career criminal who had a thing for knives. He had been indicted for carving up a woman previously and would do so again. Yet authorities failed to fully investigate him before the De Luna trial.

Later, while Mr. De Luna awaited execution, Mr. Hernandez bragged liberally about killing Ms. Lopez, the Tribune reported. And he reportedly scoffed, after the execution, that Mr. De Luna took the fall for the slaying. Mr. Hernandez took the truth with him to his grave when he died in prison in 1999.

The De Luna case is troubling enough taken alone, but it must be considered alongside two other capital murder convictions brought into question in recent months:

•That of Cameron Todd Willingham, executed in 2004 for the arson-slayings of his three young children in their Corsicana home. Expert testimony in his prosecution has since been discredited as based on outmoded forensic science. Local officials nevertheless maintained they got the right man.

•Ruben Cantu, executed in 1993 for the robbery-slaying of a construction worker in San Antonio based solely on eyewitness testimony. The eyewitness recanted last year, saying police leaned on him hard to finger Mr. Cantu as the killer.

The current Bexar County district attorney, Susan Reed, properly agreed to reopen the Cantu case in light of developments. But her history complicates things: She had been a judge in the case at one point and set an execution date. Ms. Reed has resisted calls to take the common-sense step of recusing herself in favor of an outside investigator. Asked to order her to do so, a state district judge last month said he has no jurisdiction.
The state must have such jurisdiction. There should be no question about its ability to make a careful, disinterested review when grave questions arise in death cases.

One way to make that happen is creation of a commission to perform a role like the National Transportation Safety Board’s after fatal accidents. The board investigates, then follows up with recommendations aimed at avoiding repeat mistakes.

Such a commission for criminal justice issues has been pushed unsuccessfully in the Legislature by state Sen. Rodney Ellis of Houston, who chairs Barry Scheck’s New York-based Innocence Project.

Lawmakers have resisted our calls in years past for a moratorium on the death penalty to address weak points in the system. New research on the unreliability of eyewitness identification – an issue integral to the De Luna case – is ample reason to renew that call.

Short of the unlikely event that legislators will hold up the conveyor belt to the death chamber, they should at least muster the will to create a new investigative commission.

Even posthumously, some defendants deserve another day in court.