Alright, alright, alright, another installment of what’s going on in The Wrong Carlos, a wonderfully written book by James Liebman and some Columbia wunderkinds. I think you're really going to be astonished over the simple dynamics of suspect description, and I can absolutely tell you that I'm checking and then re-checking suspect descriptions in an attempted homicide case that I'm handling. But back to Wanda Lopez on the night of February 4, 1983....
“Forty minutes after Wanda’s call, the police closed the case with an arrest. They caught Carlos DeLuna in a residential neighborhood a few blocks east of the Sigmor. Sometime later, police officials gave television stations the 911 tape, dramatizing the cops’ quick work.”
Police responded to the scene and corralled four witnesses. Witness One had been at the gas station minutes before the stabbing and noticed a Hispanic man by the ice machine drinking beer. Police found three empty beer cans in that exact spot. (And wouldn’t it have been wonderful if they had collected the cans for enzyme testing? But more about that later.) Witness One noticed that the man was taking a lock-blade knife out of his pocket and described him as 5’10”, 175, with dark hair, blue pants, and a long-sleeved t-shirt. The man actually approached Witness One and asked for a ride, which he refused to do. Witness One then went inside and warned Wanda about the man, offering to call 911 for her, but she declined, stating she would do it. That’s going to be one description.
Witness Two was at the gas station pumping gas when he heard a bang from inside the store. He saw the female clerk wrestling with a Hispanic man behind the counter. Witness Two walked toward the door where the suspect saw him coming and left the scene. As he went out the door, the suspect threatened Witness Two, then took off running North behind the gas station. Witness Two described the suspect as having dark hair, 5’8-9”, 170, aged 24 to 26. The suspect looked “transient” like he was living on the street, with dirty clothes and quite a bit of facial hair – like he hadn’t shaved in a while. The suspect was wearing a long-sleeved flannel shirt or jacket with red in it, which might have been over a gray or light-colored sweatshirt. That’s going to be the second description.
Witnesses Three and Four (who were together) reported seeing a man running east of the gas station about five minutes after the stabbing. The couple described him as a Hispanic male, 5’8”, 170 pounds, with wavy medium-length dark hair. The suspect had on dark slacks that were pressed “uniform-style” and a white, button-down dress shirt. The couple had joked to each other that the man looked like he was out for a jog, but had gotten all dressed up to do so. The female half of the couple took notice of his shirt, because the sleeves were rolled up, “something like what you [a lawyer in court] would have on.” That’s going to be the third description.
These witnesses were each unwavering in their descriptions, which were all given together outside of the gas station. Naturally, the patrol officer didn’t know what to report and the radio traffic from that evening indicates a mish-mash of descriptors as every patrol car in Corpus Christi diverged upon that area of town. (Read chapter 2 of the book for all the little details.) It certainly sounded like the police knew who they were looking for: a Hispanic man in his twenties, about 5’8” or 5’9” that is approximately 170 pounds with dark hair that is likely not close-cropped or short that is on the run – literally. On that night, Carlos DeLuna was all dressed up and Carlos Hernandez looked homeless, and, unfortunately, the police located Carlos DeLuna first.
Forty minutes after the incident, with a mysterious fifteen-minute intermission it took to drive back to the gas station, police took DeLuna back to the gas station for a show-up. Witnesses Three and Four (the couple) identified DeLuna as the fancy jogger. Witness Two noted two differences between the suspect that threatened him and the guy in the back of the patrol car: namely, the state of undress (DeLuna had stripped all of his clothes off during the chase), and the suspect’s face, which was fine earlier, but now appeared “scarred up” and bloody. At trial, Witness Two noted that DeLuna looked like a doctor or lawyer, but at the gas station that night he had looked homeless and dirty. Years later, Witness Two admitted that he had a tough time with cross-racial identification of Hispanics, and that the police telling him they found DeLuna hiding underneath a truck lead him to believe they got the right guy. Had he not known any of that? He puts his identification at 50-50. Witness One was unable to identify DeLuna at trial. Every witness said that they were scared during the show-up and did not want to go look at DeLuna in the back of the squad car. After all, he had just stabbed Wanda Lopez to death.
The takeaways: the seemingly impossible can occur - there are lots of look-alikes in this world of 7 billion people. Descriptions matter - especially when the case is solved in a record 60 minutes.
So I spent a solid portion of my Sunday reading The Wrong Carlos: Anatomy of a Wrongful Execution (that's right, not a CONVICTION, but an EXECUTION). To say I am INTRIGUED (ALL CAPS!) is an understatement. I first learned about this book when Supreme Court Justice Scalia made the bold statement that the United States had never executed an innocent man. And he didn't just make the statement, he was really colorful and adamant in his language about wrongful executions:
"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 … the innocent's name would be shouted from the rooftops."
I actually enjoyed Scalia, maybe not all his opinions, but he was delightful in many ways. Anyway, this is not about Scalia, but rather about a Justice of that same court citing this book as evidence that he believed wrongful executions have occurred. I'll be posting a lot about this book, as it's already got my head swimming with new ideas. But wrap your head around this first proposition: an academic, with an entire team of genius students and the support of a major university (Columbia) had to painstakingly write a detailed book to present the evidence of innocence - to undo what took so little energy to put in place back in 1983. And the book is incredibly thorough, but the supplemental documentation on the website is equally impressive: http://thewrongcarlos.net/
You've probably already guessed the premise - Texas executed a man named Carlos in 1989 for the murder of a convenience store worker Wanda Lopez, when the murder was really committed by another man named Carlos. (Having the same name has nothing to do with the implication of Carlos DeLuna (the innocent), so if you named your baby something very popular, like Jessica/Jennifer or Olivia/Anna, don't sweat it - they should be fine.) The first chapter of the book gets into the minutiae of the initial calls for help at the crime scene and the first 50 minutes after the stabbing. Reading it was painstaking (figuratively, not literally.) But it reminded me that witness accounts are imperfect for a variety of reasons, including the seemingly impossible - that there were two suspects in the same geographic area that were both the same race and physical description, only separated by what they were wearing. For the defense, no detail or difference should be considered too minor.
For the moment, I've got to get back to working on my own cases, but here are some articles if you want to get the three-minute summary of the book. I'll be writing more about each chapter and the major takeaways from each.
People keep walking by my office and commenting about the giant gym bag filled with manila envelopes; I'm referring to it as a "big bag of innocence." The picture doesn't accurately convey the sheer amount of materials, which in reality, is a solid 35 pounds of paper. My response that it is a "bag of innocence," has been followed up with the far more practical statement, "once I get it all sorted out and make something of it."
Innocence cases are always my favorite to work on, because they're a logic puzzle that require me to untangle some sort of nearly-impossible injustice. They are always an uphill battle, but there is something truly unique about giving a client the opportunity to have their case reviewed - and to be believed - after being sentenced to life in prison. Like most criminal defense attorneys, the most common question I'm asked is, "what if they are guilty? do you think about whether they are really did it?" And on new cases that are still pending, my answer is typically, "no." Every attorney has a different answer, but for me, getting bogged down in guilt and innocence would keep me from accomplishing my number one goal: getting the best outcome for my client and no one else. As I get closer to trial, I try to remain neutral about guilt and innocence in my own mind, while still analyzing how a jury of twelve random people will evaluate the evidence and the client.
However, innocence cases carry a clear message: he shouldn't be in prison - let's prove otherwise. It's a mantra to rally around when the DA is aggravated at you or you're buried under 35 pounds of paper. I've never read a story about an exoneration wherein the process wasn't a long, hard-fought battle. If anything comes of this particular case, it will stay true to that pattern, but I'm excited to start the fight.
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