The wrongful execution of Carlos DeLuna

Last week, a professor at Columbia University released his final report on the conviction of a man who was executed by Texas in [year]. For years, there had been rumblings, and a preliminary report, suggesting that the executed man, Carlos DeLuna, had been a victim of wrongful conviction. The case certainly has all the hallmarks. An eyewitness identification made under suggestive circumstances. A prosecutor withholding exculpatory information. A defense attorney who presented no mitigation at the penalty phase (raising the question of whether he'd done any investigation for the guilt phase, either). And there was the charming detail of the defendant's insistence that the real culprit was some other Carlos, a guy who'd never been found. The prosecutor had fun with that detail in closing argument.

But as it happens, there was another Carlos. A Carlos who looked an awful lot like the now-executed man. A Carlos who had a history of committing crimes with the same MO as this one. And a Carlos who was arrested with a knife that matched the wounds and was quite possibly the murder weapon in the crime DeLuna was executed for. Oh, and he has confessed to this crime for which Carlos DeLuna paid with his life.

So the report issued last week makes a very compelling case for DeLuna's actual innocence, which gives the abolition movement that which the pro-death penalty camp have always claimed we could never provide: a case of an innocent man being put to death. (The case of Cameron Todd Willingham wasn't cutting it for them, because, well, we all know that guy was bad and his unethical defense attorney said so. Though a district court judge was once prepared to file a written exoneration.)

Upon reading the stories about this report, many anti-death penalty advocates and members of the criminal defense bar immediately thought back to a screed, I mean opinion, once written by Justice Antonin Scalia. It's one I remember well because it was a concurring opinion in the only case I've actually seen argued before the United States Supreme Court, Kansas v. Marsh. Though it wasn't relevant to the actual decision, Justice Scalia wrote a contentious concurrence so he could go off on those damn fool abolitionists, blowing off the absurd notion that anyone who was innocent would ever be put to death, and making up ridiculous statistics to show how entirely uncommon wrongful convictions are.

It should be noted at the outset that the dissent does not discuss a single case-not one-in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.

And that's only the start of it. In characteristic bluster, Justice Scalia mocked the very idea that an innocent person would ever be executed.

How I would dearly love to hear from him this week. I would love to hear how he would rationalize and explain away the case of Carlos DeLuna. But what I would love most of all is if someone would ask him if he feels any personal responsibility for the system that allowed DeLuna to be executed. Because reading through the case, it occurred to me that we now have a #1 cause of wrongful executions: judges who turn a blind eye to the trial errors that lead to wrongful convictions.

This case bears all the hallmarks. The flawed eyewitness id. The prosecutorial misconduct. The lazy defense attorney. All it was missing was a jail snitch. These problems were apparent on the record. Throughout layers of appeal and process, they were presented to various courts in various ways. And at every level, those errors were found to be harmless. Because the reviewing courts had confidence in the outcome. I would hope that confidence is pretty shaken now.

The Justice Scalias of the criminal justice system need to get their heads out of the sand and stop pretending that our system is too great to allow an innocent person to be put to death. That pretense allows too many judges to affirm convictions while hiding behind the far-too-expansive notion of harmless error. They find errors, but trust in the system so much that they find those errors to be harmless, and then pat themselves on the back for overseeing such a fine, error-proof system. That complacence is a direct cause of Carlos DeLuna's wrongful execution. I can only hope that appellate court judges throughout the country have taken  notice.