Really, It Was the Other Guy

Whatever you think of the criminal justice system, it suffers from an unavoidable flaw.  It's operated by human beings.  That means it won't be perfect.

Whatever ought in some platonic sphere of ideal justice (whatever that might be), it won't always be what gets meted out.  Some folks will be treated more harshly than they should.  Others more leniently. Some number of factually guilty people will walk free because, for whatever reason, the jury didn't find the evidence sufficiently compelling.  Some number of factually innocent people will be convicted because, well, shit happens.

And that's with all the good will and honesty and integrity and competence and resources and . . . . You get the idea.  Because human beings are, well, human.  They're imperfect.  They're gonna fuck it up sometimes even when they do their best.

But, of course, it's not all good will and integrity and everyone doing the best they can.  Some of the folks involved - cops, witnesses, experts, prosecutors, defense counsel, judges, jurors - are dishonest.  Some are lazy.  Some are incompetent.  Some are just venal.

Sometimes there are no resources or no time.  There are political considerations even when they're denied.  There are prosecutors who cheat, judges who place their foot on the scales, incompetent defense counsel, and jurors who just by-God don't believe that innocent people can get charged with crimes. 

And there's simple human error.

All of which is why some number, and despite educated guesses nobody really knows what number, of factually innocent people end up on death row.  Some of them have been exonerated.  But there's no basis other than a fond wish for thinking that ll of them have, that we've found and corrected every mistake.  

Here's the math.  If we execute enough people, it's a statistical certainty that we'll sooner or later execute someone who just didn't do it.  Opinion polls make clear that most people think we've already done it, even if they don't have an instance they can point to.

Oh, we've got likely suspects.  There's Cameron Todd Willingham, of course.  And Ruben Cantu and, OK not Roger Coleman, but - you get the idea.  And then there's Carlos. 

February 4, 1983.  Wanda Jean Vargas Lopez was savagely attacked, stabbed to death, at a gas station/carry out in Corpus Christi, Texas. 


Carlos DeLuna was tried, convicted, and on Pearl Harbor Day in 1989 he was executed for her murder. He always insisted that he didn't do it.  It was, he said, another Carlos, Carlos Hernandez, who murdered Lopez.  Prosecutors maintained there was no such person as Carlos Hernandez.  They maintained that, even after Carlos Hernandez was arrested for the vicious murder of Dahlia Sauceda.

There have been questions about the case for years.  In 2006, the Chicago Tribune published an exhaustive study which strongly suggested that it was Carlos Hernandez who killed Wanda Lopez. Now there's The Wrong Carlos: Anatomy of a Wrongful Execution,* and you can decide for yourself.  

Jim Liebman, a professor at Columbia Law School, along with the Columbia DeLuna Project (Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White, and Daniel Zharkovsky) have produced a stunningly detailed and documented study, written plainly,** and supported by a website containing documents, photographs, transcripts, timelines, you name it.  Here's the data.  Make of it what you will. 

And what you will, if you bring any objectivity to it all, is that the title is exactly right.  They killed the wrong Carlos.

Start with the cover.  That's Carlos DeLuna almost certainly innocent but still killed for the crime, on the left.  On the right is Carlos Hernandez, who's pretty clearly the one who murdered Wanda Jean Lopez.  And got away with it.

How did it happen?  Liebman and company tell that, too.  It's a tale of sloppy investigation, a rush to judgment, dishonest prosecutors, incompetent and overburdened trial counsel, a judge who denied time and resources, and terrible luck.  It is, in other words, a perfectly ordinary story.  Except for the thing of cheap fiction - a second Carlos who's almost a, er, dead ringer for the first.

It's the ordinariness that rivets.  The authors come close to saying that at one point in their Epilogue.

[A] book permits an anatomy of not only a single obscure murder, but also the ensuing criminal investigation, trial preparation, two-part capital trial, multilayered appeals and botched execution in a case whose very obscurity makes it a far better representation of what usually goes on in criminal cases than do the facts and proceedings in more notorious and idiosyncratic cases, such as those of Nicola Sacco and Bartolomeo Vanzetti, Julius and Ethel Rosenberg, O.J. Simpson, William Kennedy Smith, and George Zimmerman's self-defense acquittal after killing Trayvon Martin.

But there's more.  It's not just that this shows something of what's more typical than the cases that usually make the headlines.  It's that if it was this easy for them to get the wrong Carlos, convict him with what the courts like to call "overwhelming evidence," and then execute him - if they could so simply fuck it up and kill the wrong Carlos, how often do they do it.  

If this is typical, my god.

Of course, sloppy investigations, cheating prosecutors, lazy or incompetent defense counsel don't necessarily mean fundamental mistake.  It's a pretty safe bet (though there's no way of actually knowing the correct answer) that the vast majority of folks charged with capital crimes are factually guilty of something at least close to the crimes they're charged with.  But if there's no meaningful check on the system - and all too often there isn't -- then with the best will in the world, they're gonna get it wrong some of the time.

the Wrong Carlos is a powerful, fascinating story.  It's a helluva read.  And it oughta give you nightmares.



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*My thanks to the good people at Columbia University Press who sent me a copy to review.

** That's important to say.  Anyone who's listened to Jim Liebman speak or dipped into his treatise on habeas corpus knows that he can be difficult to understand when he gets into LawProf mode.