Paul Vallely: ‘Reasonably confident’ won’t do

by
23 June 2010

A miscarriage of justice on death row

I think I may have got something terribly wrong. When they were execut­ing that American prisoner by firing squad last week, my mind went back to a man I inter­viewed on death row in Texas more than two decades ago. The years went by, and I never heard what happened to him. But now we have the internet; so I Googled his name.

He was called Carlos De Luna. I had visited the death chamber in Huntsville, and he was the next man due in there. He was just 24. He had been convicted of stabbing to death a petrol- station attendant in a place called, bizarrely enough, Corpus Christi. There were two pieces of evidence against him. The police had caught him hiding under a truck near by, with no shirt or shoes on. And an eyewitness had identified him. He was a glue-sniffer and petty criminal.

He protested his innocence throughout. He did so, at length, to me. But, though I wrote down everything he said, I was not listening with full attention. “The reason I agreed to talk to you was so people can see that I have feelings, too: that I’m not an animal,” he said. “This is a human being speaking. Is it right to do this?”

Yet throughout, as I looked through the thick plastic window on death row into the eyes of a man condemned to die, I was seized with the compulsion — for some reason — that I had to decide whether or not he was telling the truth. Then all at once I was overcome with the cer­tainty that he was guilty, and yet, at the same time, with a feeling that his guilt was utterly irrelevant to the morality of what was about to be done to him.

He was executed two years later, the internet revealed. But in 2006, an investigation by the Chicago Tribune showed, fairly convincingly, that the state had probably executed an innocent man. There had never been any forensic evidence against him. There was no speck of blood on his face or trousers, or on his shirt and shoes when they were found.

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He had blamed the crime on someone called Carlos Hernandez, whom the prosecutors told the jury was a “phantom”. But the Tribune not only found Hernandez: it found that he had told half a dozen friends and relatives that he had done the murder, and bragged that someone else had taken the rap. De Luna and Hernandez looked so remarkably similar that the pivotal eye-witness said he was no longer sure when he saw their photos. Hernandez had died a decade later.

Something went wrong with the lethal injection when De Luna was put to death. He did not die within 12 seconds, as the death-chamber chaplain recounted that he had promised. Instead, he struggled against the straps on the death table, as if trying to sit upright. He seemed to try to speak. No one knew whether it was excruciating pain — the killer drug working before the anaesthetic in the lethal cocktail — or whether he was trying to protest his innocence one last time at the precipice of death.

Two decades on, I felt complicit. Of course, I had played no part in any of this. The article I had written exposed the cold barbarity of the state’s calculated decision to kill. But I had decided that I had to settle on whether he was guilty. And then I had made the wrong choice.

After the Tribune investigation, one of De Luna’s prosecutors told a TV news station that he was “reasonably confident” that they had got the right guy. Reasonably confident: that is what I, too, had been. No decisions turned on my confidence, but terrible consequences ensued from the confidence of the prosecutors, the eye-witness, the jury, and the politicians of Texas who refused to commute the sentence. What they had all been was unreasonably confident. Had they been less so, Carlos De Luna might be alive today.

Paul Vallely is associate editor of The Independent.

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