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Columbia Law School team publishes anatomy of a wrongful South Texas execution

Photo: Courtesy photo, License: N/A

Courtesy photo

Then the police officer inside the gas station who was doing the scene investigation heard that the eyewitness identification had occurred and then shut down the investigation after only about an hour and three quarters, even though this was an incredibly rich crime scene to go over. They never looked at the crime scene overnight because they folded up and ended it. They let the gas station wash it down and open the next morning. So there were bloody palm prints that people washing the gas station found but police never saw. There was a bloody foot print that the photograph shows that the jury was never told about — it's not clear whether the police saw it and just didn't want to say anything about it, or just plain didn't see it. There was lots of evidence missed that way. There was even a police audiotape of the manhunt that we discovered that had not been presented to the jury that showed that the police had chased somebody else for 30 minutes before they found DeLuna. Essentially the police dispatcher had pirated a copy of this tape, which he thought was one of the great moments of his time as a dispatcher, and then he left to go to Los Angeles to become a dispatcher there. So he just had it in his house  somewhere for years. It took us a couple months to encourage him to look hard enough to where he finally dug it up and showed it to us. The jury never heard anything about that tape, and yet the police and prosecution told the jury that this Hernandez didn't exist, that he was a phantom.

So it was a combination of those things and poor appeals where the case was rushed through and all of that added up to a very serious case where there's the very strong probability the defendant was innocent. Yet it's not that different of a case compared to so many others that we see.

What's the impact of an investigation like this? What can it teach us when looking at capital cases today?

I think the most important thing is to make us recognize the risk we take. There is a real risk of executing the innocent in these capital cases, and that's why it's so important that this case is no different from many, many others we see. It's not an unusual case. Nobody had identified it anywhere near the time of execution as one that we ought to be worried about. There are a dime a dozen cases like this. And so right now where there's a big debate taking place across this country, when a number of states have abolished [the death penalty], with California's big referendum coming up, people should be asking the question: What do we get out of this penalty that we don't get out of, for instance, life without parole? And with what risk and at what cost? We feel this book really demonstrates the risk and the cost: the worst kind of risk out there. We feel it demonstrates that there is a very real risk even in this kind of run-of-the-mill case.

There's nothing about this case where you can say, “Oh we don't do it that way anymore,” or, “That just doesn't happen anymore.” As I say, the defense attorneys were not the strongest in the world but this is not the worst case of ineffective assistance out there. You see similar cases out there everyday across the country, Texas and elsewhere. Prosecutors did not turn over all of the evidence, but there are many cases where you see even worse examples of that. The appeals were quick, but that's not unusual. Like I said, in many ways this is a very run-of-the-mill kind of case even for today. It's the way cases go today. And so the real risk of an innocent person being executed that we found in this case is a real risk that the system continues to take as long as it's prepared to execute people.

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