Saturday, February 28, 2009

CARLOS DE LUCA CASE (9): WHY PASTOR CARROLL BUD" PICKETT, A PRESBYTERIAN MINISTER IN TEXAS CHANGED HIS OPINION ABOUT THE DEATH PENALTY; WIKIPEDIA;



"DURING HIS TENURE AS A PRISON CHAPLAIN IN THE 1980S AND 1990S, HIS VIEWS CHANGED. IN 1989 HE SOUGHT PSYCHIATRIC HELP TO DEAL WITH WORK-RELATED ISSUES. HE CAME TO BELIEVE THAT ONE PRISONER, CARLOS DE LUNA, WAS WRONGLY EXECUTED. HE COULD NOT REVEAL HIS CHANGED ATTITUDES WITHOUT JEOPARDIZING HIS JOB AND HE FELT A CALLING TO CONTINUE TO MINISTER TO PRISONERS ON THE LAST DAY OF THEIR LIVES. ON THE DAY OF HIS RETIREMENT IN 1995, HE ANNOUNCED THAT HE WAS AGAINST THE DEATH PENALTY.[13][6][1] IN 2008, HE CALLED EXECUTION "BIBLICALLY WRONG.""[1]

WIKIPEDIA;

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Reverend Carroll L. "Bud" Pickett (b. 1933, Nursery, Texas)[1] is a Presbyterian minister in Huntsville, Texas. In the 1960s and 1970s, Rev. Pickett served as pastor for three churches in Texas.[2][3][4] In 1980 he began serving as a chaplain in the Huntsville, Texas, prison, where he spent most of the next 15 years working with prisoners facing imminent execution.[3] Since retiring from the Texas Department of Corrections, Rev. Picket writes and speaks against the death penalty. His 2002 book, Within These Walls: Memoirs of a Death House Chaplain, won several awards.[5] The 2008 documentary At the Death House Door: No Man Should Die Alone chronicles his prison ministry.[6]

[edit] Early life and ministry
Rev. Pickett attended Pattie Welder High School[1] in Victoria and graduated from Victoria College,[7][1] then Austin College in 1954 and seminary in 1957.[7][8][3][9] He married Sonja Campbell of Victoria and raised 4 children. After divorcing, he married his second wife Jane in 1990.[1][4][3][10]

Early in his career, he served a Presbyterian church in Sinton.[2] From 1961 to 1967, he served as Associate Pastor for First Presbyterian Church in Victoria.[4][1] From 1967 to 1980, he served as pastor of First Presbyterian Church in Huntsville, Texas.[4][3]

[edit] Attitudes towards the death penalty
In 1974, the Carrasco Prison Siege of 1974 took the lives of two of Rev. Pickett's parishioners.[11] After this, he was in favor of the death penalty. This was in direct conflict with the Presbyterian Church's established opposition to the death penalty.[12]

During his tenure as a prison chaplain in the 1980s and 1990s, his views changed. In 1989 he sought psychiatric help to deal with work-related issues. He came to believe that one prisoner, Carlos De Luna, was wrongly executed. He could not reveal his changed attitudes without jeopardizing his job and he felt a calling to continue to minister to prisoners on the last day of their lives. On the day of his retirement in 1995, he announced that he was against the death penalty.[13][6][1] In 2008, he called execution "Biblically wrong."[1]

In a September 2008 interview, he mentions that his attitude change was a long process, and was in part due to the execution of several men who he now believes were innocent.[2][1]

In all, Rev. Pickett "walked with 95 inmates the last 10 steps to the Death House Door" in his 16 years with the prison system.[1]

[edit] Campaign against the death penalty
In addition to writing a book[3] and being the subject of a documentary[6] about his time as the Death House chaplain, Rev. Pickett speaks and writes against the death penalty.[5]

Harold Levy...hlevy15@gmail.com;

Friday, February 27, 2009

CARLOS DE LUCA CASE; (8): TEXAS URGED TO PROBE CLAIMS OF WRONGFUL EXECUTIONS; FOLLOW-UP; TRIBUNE SERIES;


The Chicago Tribune has distinguished itself with its stories on Carlos De Luna - a man who was executed by the State of Texas for the murder of Gas Station clerk Wanda Lopez;

The Tribune, which also distinguished itself in its investigative reporting on the Cameron Todd Willingham case, published a three-part special report - to be run over the next three posts on this Blog - which suggests that De Luna died for another man's crime.

(Tribune reporter's Steve Mills and Maurice Possley reported both the Willingham and De Luna stories;)

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"THERE IS NO MECHANISM UNDER TEXAS LAW TO INVESTIGATE SUCH CASES OR PAY COMPENSATION TO THE FAMILY OF AN INMATE WRONGFULLY EXECUTED, CASAREZ SAID.

THE TEXAS LEGISLATURE HAS SHOWN LITTLE INTEREST IN THE IDEA. DEMOCRATIC STATE SEN. RODNEY ELLIS HAS TWICE INTRODUCED BILLS TO CREATE AN INNOCENCE COMMISSION TO STUDY OLD DEATH PENALTY CASES "TO FIND OUT WHAT WENT WRONG IN THE SYSTEM," SAID ELLIS' CHIEF OF STAFF, KENNETH BESSERMAN. NEITHER BILL MADE IT OUT OF COMMITTEE.

"THERE IS STRONG OPPOSITION IN THE LEGISLATURE TO CREATING A COMMISSION TO GO BACK TO OPEN UP THESE CASES," BESSERMAN SAID."

HOWARD WITT:TRIBUNE SENIOR CORRESPONDENT;

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Texas urged to probe claims of wrongful executions
By Howard Witt | Tribune senior correspondent
July 7, 2006;

"HOUSTON - Opponents of the death penalty in Texas, joined by the sister of a Corpus Christi man who may have been executed for a murder he did not commit, called on Texas officials Thursday to establish a commission to investigate claims that innocent prisoners have been put to death in the nation's most aggressive death penalty state," the follow-up to the series begins;

""Texas officials never want to admit that they made a mistake," said David Atwood, founder of the Texas Coalition to Abolish the Death Penalty. "It's a horrible thing that we killed an innocent person," it continues;

"Atwood was responding to a Chicago Tribune series last month that uncovered evidence strongly suggesting that Carlos De Luna was put to death in 1989 for a murder committed by another man who later bragged that he was the killer.

The Tribune series found that De Luna's case was compromised by unreliable eyewitnesses, sloppy police work and a failure by prosecutors to pursue evidence pointing to the other man, who died in prison while serving time for another crime.



Related links
Tribune investigation

Wrong man executed? "My brother was killed by the state of Texas on Dec. 7, 1989," Rose Rhoton, De Luna's sister, told a news conference. "He insisted time after time that he did not commit this crime. But nobody ever took the time to investigate."

Atwood said his group had evidence that at least 10 other prisoners executed by the state of Texas may have been innocent. The state has carried out 368 executions since 1976, far more than any other state.

"Most people do not like the concept of executing innocent people," Atwood said. "You have to ask yourself, what is it with the state of Texas that causes all these executions?"

Earlier this year, four top arson experts concluded that Texas executed Cameron Todd Willingham in 2004 based on scientifically invalid evidence and called for an official reinvestigation of the case by the Texas Forensic Science Commission. The commission was created in 2005 to examine allegations of professional negligence or misconduct affecting forensic analysis in all cases, not just death penalty prosecutions.

The experts' independent review of the evidence followed a separate investigation by the Tribune that showed Willingham had been found guilty on arson theories that have been repudiated by scientific advances. Many of the theories were simply lore passed on by generations of arson investigators.

Atwood, joined by Nicole Casarez, a journalism professor at the University of St. Thomas in Houston who has researched suspected cases of wrongful executions, urged Texas legislators to establish a special court of inquiry to review cases like De Luna's as they come to light.

There is no mechanism under Texas law to investigate such cases or pay compensation to the family of an inmate wrongfully executed, Casarez said.

The Texas Legislature has shown little interest in the idea. Democratic State Sen. Rodney Ellis has twice introduced bills to create an innocence commission to study old death penalty cases "to find out what went wrong in the system," said Ellis' chief of staff, Kenneth Besserman. Neither bill made it out of committee.

"There is strong opposition in the Legislature to creating a commission to go back to open up these cases," Besserman said."


Harold Levy...hlevy15@gmail.com;

Thursday, February 26, 2009

CARLOS DE LUCA CASE: (7); "NOT IN THE NAME OF JUSTICE;" COMMENTARY ACCOMPANYING SERIES;


The Chicago Tribune has distinguished itself with its stories on Carlos De Luna - a man who was executed by the State of Texas for the murder of Gas Station clerk Wanda Lopez;

The Tribune, which also distinguished itself in its investigative reporting on the Cameron Todd Willingham case, published a three-part special report - to be run over the next three posts on this Blog - which suggests that De Luna died for another man's crime.

(Tribune reporter's Steve Mills and Maurice Possley reported both the Willingham and De Luna stories;)

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"OVER THE PAST SEVERAL YEARS, THE TRIBUNE HAS TIME AND AGAIN DEMONSTRATED THE WAY IN WHICH VERDICTS HAVE BEEN PROVEN WRONG, EVEN WHEN THE DEFENDANT CONFESSES."

REPORTERS STEVE MILLS AND MAURICE POSSLEY; CHICAGO TRIBUNE;

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Not in the name of justice
The criminal justice system is too deeply flawed to entrust with the decision to kill a particular person in order to make a point
By Jack Fuller | a former editor and publisher of the Chicago Tribune
July 3, 2006;

"Death-penalty opponents advance various arguments for abolition, but the most powerful of them all finds embodiment in the person of Carlos De Luna," the commentary begins;

"Texas executed De Luna in 1989 for the murder of Wanda Lopez in a gas station knife attack," it continues;

"Something went terribly wrong at the execution by lethal injection. De Luna did not slip quickly into unconsciousness as he was supposed to. Instead, he reared up on the gurney against the restraints and seemed to try to say something.

Perhaps it was to cry out in pain as the killing medications began to course into his veins before the anesthetic took hold. The possibility that lethal injection subjects its recipients to excruciating physical agony has become the focus of a great deal of attention lately among death-penalty opponents.

Or worse, De Luna may have been trying to protest his innocence on the very precipice of death. A Tribune investigation has exhumed compelling reasons to think this would have been the truth.

Wrong man executed?

That is the reason we have to stop putting people to death. The criminal justice system is too deeply flawed to entrust with the decision to kill a particular person in order to make a point (for that is what deterrence and retribution come down to).

Odd then that people who believe in the free market because government cannot make the right decision about how to allocate resources don't all rally to the abolitionist cause.

Strange that opponents of socialized medicine can't see that the government they don't trust to save their lives oughtn't be trusted to take De Luna's.

Peculiar that the Republicans who wanted to privatize Social Security to save it from bureaucrats and politicians are eager to let government agents in the form of police, prosecutors, judges and juries decide in the face of profound factual and moral ambiguity that this one should die while that one should live.

It isn't that the people who work in the criminal justice system are bad folks. They are often the very best among us. Police officers willing to put their lives on the line to save ours. Prosecutors who face down some of the scariest individuals on the planet. Judges who do their jobs with almost supernatural self-discipline. Jurors who are called out of peaceful lives and presented with agonizing choices, the memory of which will haunt them forever.

It is simply that they are all human and the power of singling out someone to kill is more than they are built to handle.

Humans have remarkable brains, capable of seeing patterns in the midst of complexity, even chaos. This has served us and our primitive ancestors well. Dithering about whether that long coiled thing obscured by leaves is a snake or a vine is certainly not a good survival strategy.

But this ability to see figures in the clouds can also lead us into error. Eyewitness accounts have proven notoriously imperfect. Circumstantial evidence can weave a noose around a defendant's neck, when the discovery of one more fact would turn it into a halo.

Over the past several years, the Tribune has time and again demonstrated the way in which verdicts have been proven wrong, even when the defendant confesses.

- Forensic experts' theories turn out to be 180 degrees wrong.

- Police identification procedures give cues to uncertain eyewitnesses about who the police believe committed the crime.

- People are sometimes tortured or tricked into telling police they did something that they did not do.

The refinement of DNA testing has given chilling proof that any number of people on Death Row shouldn't have been there.

If figuring out what a defendant did bedevils the criminal justice system, deciding how to assess its moral quality against other similar behavior in order to know whether to exact the ultimate punishment is many times harder.

John Doe is a 20-year-old man with the mind of a 12-year-old. When he kills in an impulsive rage, is he more or less deserving of execution than Rhonda Roe who has a 120 IQ but was beaten and sexually abused by her father from the age of 8 until 15, when she ran away from home and became a prostitute?

We can find ways to discuss such questions meaningfully. The law over the centuries has provided as good a framework for it as we are likely to find. But still the issues are theological in their profound difficulty, especially when the stakes are life or death.

The reason to abolish capital punishment is not that it is immoral for a society to choose death over life. Every time we decide to do a major construction project or launch a space-shuttle program or send in troops (or allow people to drive 70 m.p.h.) we know fairly precisely how many people are likely to die as a result.

Nor is the reason that killing someone inflicts pain. That is almost beside the point, not least because we have the ability to anesthetize effectively if we have the wit to use it.

The real reason is that no government is good enough to entrust with the absolute power that capital punishment entails."


Harold Levy...hlevy15@gmail.com;

Wednesday, February 25, 2009

CARLOS DE LUCA CASE; (6); "DEATH IN TEXAS"; EDITORIAL ACCOMPANYING SERIES;


The Chicago Tribune has distinguished itself with its stories on Carlos De Luna - a man who was executed by the State of Texas for the murder of Gas Station clerk Wanda Lopez;

The Tribune, which also distinguished itself in its investigative reporting on the Cameron Todd Willingham case, published a three-part special report - to be run over the next three posts on this Blog - which suggests that De Luna died for another man's crime.

(Tribune reporter's Steve Mills and Maurice Possley reported both the Willingham and De Luna stories;)

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"DE LUNA WAS CONVICTED, LARGELY ON THE TESTIMONY OF TWO WITNESSES. BUT DE LUNA AND HERNANDEZ LOOK REMARKABLY SIMILAR, AND NO FORENSIC EVIDENCE LINKED DE LUNA TO THE CRIME.

DE LUNA WAS EXECUTED IN 1989. HERNANDEZ DIED SEVEN YEARS AGO.

NOW, THE TRIBUNE REPORTS, HALF A DOZEN FRIENDS AND RELATIVES OF HERNANDEZ SAID HE BRAGGED TO THEM THAT HE HAD KILLED WANDA LOPEZ. HE BRAGGED THAT ANOTHER MAN HAD BEEN PUT TO DEATH FOR HIS CRIME. HE BRAGGED THAT HE HAD GOTTEN AWAY WITH MURDER.

THAT DOESN'T PROVE THAT HERNANDEZ KILLED HER. IT DOESN'T PROVE THAT DE LUNA DIDN'T. BUT IT CERTAINLY RAISES ENOUGH DOUBT TO WONDER IF TEXAS DID, IN FACT, EXECUTE AN INNOCENT MAN."

REPORTERS STEVE MILLS AND MAURICE POSSLEY: CHICAGO TRIBUNE;

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Death in Texas
June 27, 2006
This nation has had a long and impassioned debate about the imposition of the death penalty, and that debate goes on. The Supreme Court revealed its own divisions Monday, upholding a Kansas law on capital punishment by a 5-4 vote.

Capital punishment is here and likely to be around for many years. One would hope as the debate goes on that those on either side of the divide could agree on this: As long as the government imposes the death penalty, it has an obligation to make every possible effort to protect the innocent from wrongful prosecution.

The Chicago Tribune concludes a series on Tuesday that raises new questions about whether we can have such certainty. The series lays out the possibility that Texas executed an innocent man 17 years ago.

In 1983, a convenience store clerk named Wanda Lopez was stabbed to death. Crime scene photos show blood splattered on the walls of the store, the cash register and the floor.

Wrong man executed?

A man named Carlos De Luna was arrested 40 minutes after the murder. De Luna certainly acted suspiciously. He was found hiding under a vehicle. He had taken off his shirt and shoes. And he was not a choirboy, judging from his criminal record.

But he had not a drop of blood on his face or pants. And when his shirt and shoes were found, no blood was found on them either.

A witness who had passed the killer in the Corpus Christi gas station store told police the suspect wore a gray or a flannel shirt. De Luna's shirt, the one that was found, was white. Later, that witness said he wasn't sure De Luna was the right person.

De Luna said Wanda Lopez was killed by a man he knew named Carlos Hernandez. But prosecutors at trial dismissed Hernandez as a "phantom." He existed, though, and he was well-known for using knives in violent acts. The co-prosecutor in the case ignored his duty to reveal that information to the defense.

De Luna was convicted, largely on the testimony of two witnesses. But De Luna and Hernandez look remarkably similar, and no forensic evidence linked De Luna to the crime.

De Luna was executed in 1989. Hernandez died seven years ago.

Now, the Tribune reports, half a dozen friends and relatives of Hernandez said he bragged to them that he had killed Wanda Lopez. He bragged that another man had been put to death for his crime. He bragged that he had gotten away with murder.

That doesn't prove that Hernandez killed her. It doesn't prove that De Luna didn't. But it certainly raises enough doubt to wonder if Texas did, in fact, execute an innocent man.

The evaluation of evidence over the last two decades, particularly the rise of DNA technology, has given more certainty to many prosecutions--just as it has proved that in some cases innocent people have been sentenced to death. Illinois was home to several of those stunning cases--and it has led the way in efforts to improve its procedures in capital cases. It has imposed a moratorium on the death penalty to buy time to assess those practices.

Still, criminal justice relies on human judgment and integrity. A prosecutor in the De Luna case told a local TV news station that he was reasonably confident they had the right guy.

Reasonably confident? That can't be enough.

Tuesday, February 24, 2009

CARLOS DE LUCA CASE (5): TRIBUNE SERIES; DISTURBING SIDEBAR;


The Chicago Tribune has distinguished itself with its stories on Carlos De Luna - a man who was executed by the State of Texas for the murder of Gas Station clerk Wanda Lopez;

The Tribune, which also distinguished itself in its investigative reporting on the Cameron Todd Willingham case, published a three-part special report - to be run over the next three posts on this Blog - which suggests that De Luna died for another man's crime.

(Tribune reporter's Steve Mills and Maurice Possley reported both the Willingham and De Luna stories;)

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"JUST BEFORE TRIAL, CARLOS DE LUNA'S LAWYERS IDENTIFIED HERNANDEZ AS LOPEZ'S REAL KILLER. FROM THAT POINT ON, ANY INFORMATION ABOUT HERNANDEZ WAS CRITICAL TO THE DEFENSE. BOTARY KNEW THAT A PROSECUTOR HAS A DUTY TO DISCLOSE EVIDENCE FAVORABLE TO THE DEFENSE AND THAT FAILURE TO DO SO CAN BE CAUSE FOR AN APPEALS COURT TO SET ASIDE A CONVICTION AND ORDER A NEW TRIAL."

REPORTERS STEVE MILLS AND MAURICE POSSLEY: CHICAGO TRIBUNE;

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Sidebar: A prosecutor's silence
Co-prosecutor knew of Hernandez. He now says he should have told his partner
By Maurice Possley and Steve Mills | Tribune staff reporters
June 26, 2006;

"CORPUS CHRISTI, Texas: When lead prosecutor Steve Schiwetz told a jury that a man named Carlos Hernandez was a "phantom" and not the killer of gas station clerk Wanda Lopez, his co-prosecutor sat nearby and said nothing," the disturbing sidebar begins;

"Yet Ken Botary, a veteran of the Nueces County district attorney's office, was, by his own account, well aware of Hernandez and his reputation for violent acts here," it continues;

"Three years earlier, Botary had prosecuted another murder case and lost after defense lawyers argued that Hernandez was the real killer. Botary interviewed Hernandez before that trial and cross-examined him on the witness stand. Botary was even called to testify about his interview of Hernandez.

Just before trial, Carlos De Luna's lawyers identified Hernandez as Lopez's real killer. From that point on, any information about Hernandez was critical to the defense. Botary knew that a prosecutor has a duty to disclose evidence favorable to the defense and that failure to do so can be cause for an appeals court to set aside a conviction and order a new trial.

Schiwetz said Botary never told him about Hernandez. By remaining silent, Botary allowed Schiwetz to misinform De Luna's jury.

In a series of interviews, Botary offered changing explanations of how he handled the information about Hernandez.

"I got the name right off the bat," Botary said. "I knew Carlos Hernandez was a dangerous man."

But Botary, now a criminal defense lawyer in Corpus Christi, says he may not have associated the Hernandez mentioned by De Luna's lawyers with the man he had interviewed and cross-examined in the earlier murder case.

He acknowledged that had he been De Luna's lawyer at the time, he would have wanted to know the information. "I think I should have told Schiwetz," Botary said.

In Botary's defense, Schiwetz noted that at the time of De Luna's trial, prosecutors in Corpus Christi carried heavy caseloads, so his colleague simply may not have made the connection.

But, Schiwetz added, if Botary had told him, he would have alerted the defense and never called Hernandez a phantom."


Harold Levy...hlevy15@gmail.com;

Monday, February 23, 2009

CARLOS DE LUCA CASE; (4); TRIBUNE SERIES; PART THREE;


The Chicago Tribune has distinguished itself with its stories on Carlos De Luna - a man who was executed by the State of Texas for the murder of Gas Station clerk Wanda Lopez;

The Tribune, which also distinguished itself in its investigative reporting on the Cameron Todd Willingham case, published a three-part special report - to be run over the next three posts on this Blog - which suggests that De Luna died for another man's crime.

(Tribune reporter's Steve Mills and Maurice Possley reported both the Willingham and De Luna stories;)

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"IN ADDITION TO THE FOUR WOMEN WHO RECOUNTED HERNANDEZ'S ADMISSIONS, THE TRIBUNE INTERVIEWED A CORPUS CHRISTI MAN WHO TOLD A SIMILAR STORY. MIGUEL ORTIZ, WHO HAS A CRIMINAL RECORD, SAID THE TWO WERE DRINKING IN A PARK WHEN HERNANDEZ TALKED ABOUT A CLERK HE HAD "WASTED" AT A GAS STATION.

"I JUST LET THAT GO," ORTIZ SAID."

REPORTERS STEVE MILLS AND MAURICE POSSLEY: CHICAGO TRIBUNE;

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The secret that wasn't
Violent felon bragged that he was real killer. Last of three parts.
By Steve Mills and Maurice Possley | Tribune staff reporters
June 27, 2006
CORPUS CHRISTI, Texas - It was a secret they all shared. Some kept it out of fear. Some because no one ever asked. Whatever their reasons, it was a secret that might have saved Carlos De Luna from the execution chamber.

Twenty-three years after Wanda Lopez was murdered in the gas station where she worked, family members and acquaintances of another man, Carlos Hernandez, have broken their silence to support what De Luna had long asserted: Hernandez, a violent felon, killed Lopez in 1983.

A Tribune investigation has identified five people who say Hernandez told them that he stabbed Lopez and that De Luna, whom he called his "stupid tocayo," or namesake, went to Death Row in his place.

They also say he admitted killing another woman, in 1979, a crime for which he was indicted but never tried.

Although some aspects of De Luna's actions on the night of Lopez's killing remain suspicious, the Tribune uncovered substantial evidence that undermines his conviction. Among the findings:

The only witness who came face to face with the killer at the station after Lopez was stabbed now says he was not positive of his identification of De Luna. He identified De Luna, he said, after police told him they had arrested De Luna hiding under a truck near the scene of the attack--information that eased his uncertainty.

The Tribune's analysis of financial records from the Sigmor gas station also undercuts the state's assertion that the killing took place during a robbery, an aggravating circumstance that elevated the murder to a death penalty case. Newly examined inventory documents suggest no money was taken at all.

The prosecution argued that Hernandez was a "phantom," even though one of the prosecutors knew well of Hernandez but failed to inform De Luna's attorneys--a possible legal error that could have been a reason to overturn his conviction.

And one of Corpus Christi's senior detectives at the time of the crime now says he believes De Luna was wrongly executed. The former detective, Eddie Garza, said tipsters told him that Hernandez killed Lopez, the mother of a 6-year-old girl. Yet it appears those tips were not pursued.

Garza knew both men and said Lopez's slaying was the kind of crime Hernandez would commit, not De Luna.

"I don't think [De Luna] had it in him to do something like this and stab somebody to death," Garza said.

But Hernandez, he added, "was a ruthless criminal. He had a bad heart. I believe he was a killer."

A SECRET NO MORE

After Hernandez died in prison in 1999, word reached Corpus Christi, and people began to talk.

Janie Adrian remembered how Hernandez bragged about stabbing Lopez, how he said Carlos De Luna, the man who shared his first name, was innocent.

"He said, `My stupid tocayo took the blame for it,'" she recalled recently.

Adrian, a neighbor of Hernandez's mother, Fidela, said she always thought someone would ask what she knew. Nobody ever did, so she never told.

"I kept it to myself," she said in her Corpus Christi home. "Maybe I could have said something then."

Dina Ybanez waited because she was afraid. She met Hernandez in 1985, and after he befriended her and her husband, he confided that he killed Lopez.

"He said he was the one that did it, but that they got somebody else--his stupid tocayo--for that one," Ybanez said in an interview. "Carlos would just laugh about it because he got away with it."

Like a number of people in Corpus Christi who knew Hernandez, Ybanez said he also admitted committing the 1979 murder of Dahlia Sauceda, a local woman who was strangled and had an "X" carved into her back. Hernandez was questioned in the murder in 1979, then indicted for it in 1986, although prosecutors never took him to trial.

Ybanez said she so feared Hernandez that she never contacted police about his admissions, not even after he cut her from her navel to her sternum during a quarrel. "He said he was going to kill me like he did her," she said.

Beatrice Tapia and Priscilla Jaramillo never spoke about what they knew because they wanted to forget.

Although they had not seen each other in years, they independently recalled the same chilling details from the day they heard Hernandez say he killed Lopez.

Jaramillo is Hernandez's niece, and during the 1980s she lived at his mother's home, where, she said, she was sexually abused by Hernandez.

Not long after Lopez was slain, Jaramillo, then 11, and Tapia, 16, a neighborhood friend, were sitting on the front steps, mostly talking but also listening to Hernandez and his brother Javier, who were on the porch drinking beer.

Carlos told his brother that he had killed the woman at the gas station.

"He was saying he did something wrong and said Wanda's name. He said he killed her," recalled Tapia, who still lives in Corpus Christi. "He said he felt sorry about it."

Jaramillo's recollection is similar. "My Uncle Carlos said that he had hurt somebody--that he had stabbed somebody," said Jaramillo, who now lives elsewhere in Texas. "Javier didn't believe it.

"Carlos said, `I did.' And he named her, and Javier knew her," Jaramillo said. "He said the name was Wanda."

In addition to the four women who recounted Hernandez's admissions, the Tribune interviewed a Corpus Christi man who told a similar story. Miguel Ortiz, who has a criminal record, said the two were drinking in a park when Hernandez talked about a clerk he had "wasted" at a gas station.

"I just let that go," Ortiz said.

TIPS ON HERNANDEZ

While some in Corpus Christi kept silent about Hernandez, others apparently did not.

Garza, a detective at the time, recalled getting tips just days after De Luna was arrested that someone else was talking about how he had stabbed the gas station clerk.

"We were getting information that Carlos Hernandez was the one that had done the case," said Garza, who now is a private investigator. "Several people were telling us that."

Garza says he passed along the information to the detective leading the investigation, Olivia Escobedo.

Escobedo, now a real estate agent and police consultant in Florida, said she remembers no such tips. "I don't recall anything about a Carlos Hernandez," she said in a recent interview.

"I always followed every lead," added Escobedo, who primarily had investigated sex crimes and handled the De Luna case alone. "I went down rabbit trails when I didn't have to. I followed everything I could think of."

Garza's partner at the time, Paul Rivera, now a captain in the county sheriff's department, also said he doesn't remember the tips.

Garza did not testify at the trial but did at De Luna's sentencing, asserting that the defendant had a "bad" reputation in town. Garza says that by then he assumed the tips had been checked out and determined to be false. Now he believes the tips were ignored.

His recent examination of the case's police reports, at the Tribune's request, renewed his skepticism about De Luna's guilt. Garza concluded the initial crime scene investigation was sloppy and brief.

He noted that none of the blood spattered on the floor of the station was collected for testing, so there was no way to determine whether the attacker's blood was present. The only items sent for blood testing were the knife, De Luna's clothing and a $5 bill.

One police photo shows Escobedo standing in the middle of the spattered blood behind the station counter. The station reopened a few hours after the crime.

"This case wasn't put together right," Garza said.

Noting that investigators found no physical evidence that could be used to identify the attacker, he said, "It probably was there to be found. It was just overlooked."

WITNESS' DOUBTS

With no forensic evidence linking De Luna to the crime, prosecutors relied heavily on two eyewitnesses who said they saw him at the station--one before and one after the murder.

Arrested less than an hour after the attack, De Luna was handcuffed and placed in a patrol car, then driven to the gas station, where an officer shone a light on his face.

Of those witnesses, only Kevan Baker came eye to eye with the killer after Lopez had been stabbed. Now living near Jonesville, Mich., Baker recalls that night vividly.

He had stopped to buy gas and saw Lopez and a man struggling inside the station. When he approached the door to help, the assailant emerged, they locked eyes and the attacker fled.

De Luna and Hernandez were about the same height and looked alike in police mug shot profiles.

Baker identified De Luna but now says he was uncertain. "I wasn't all that sure, but him being Hispanic and all . . . I said, `Yeah, I think it is him,'" Baker recalled recently. "The cops told me they found him hiding under a truck. That led me to believe this is probably the guy."

This form of identification--called a show-up, in which a witness views only one suspect instead of attempting to pick a suspect out of a lineup--can be accurate, but it also can give eyewitnesses a false sense of certainty, according to experts. They say shackling a suspect exacerbates the potential for a mistaken identification.

"Law enforcement figures `we got our guy,' so their whole demeanor, their language, the way they handle the guy suggests to the witness that this is the person," said Gary Wells, a research psychologist at Iowa State University and a leading expert on eyewitness identification issues. "That's a lot of pressure to put on a witness."

The other witness who identified De Luna as he sat in the police car, George Aguirre, declined to be interviewed for this article. At a pretrial hearing, Aguirre was unable to point out De Luna in the courtroom. At trial a month later, though, he did.

Two additional witnesses at the trial, John and Julie Arsuaga, said they caught a glimpse of De Luna's face as he ran slowly through a parking lot east of the station a few minutes after Lopez was attacked.

De Luna told authorities that when he saw Hernandez struggling with Lopez, he fled from the area because he was on parole and didn't want to be spotted by police.

Julie Arsuaga could not be reached for comment. In a recent interview, her former husband said he still believes De Luna was the man he saw down the street.

But he acknowledged he never saw De Luna at the gas station: "I didn't see the man commit a crime."

NOT A ROBBERY?

The discovery of $149 in De Luna's pocket when he was arrested was important to the prosecution's case because it was one more way to tie him to the crime.

But a review of the station's business records show that's a shaky assumption.

De Luna's defense lawyers established that he had cashed a paycheck for $135 the day of the murder and $71 a week earlier. Further, they noted that the $149 was in a neat roll--unlikely if the money had just been snatched from a cash register--and that none of the bills tested positive for blood. Money found scattered in the Sigmor station was bloodstained.

At trial, a district manager for the chain of stations told the jury that an inventory performed the night of the crime showed a shortage of $166. He couldn't say how much of that was merchandise and how much, if any, was cash.

But another Sigmor employee at the time, Robert Stange, never believed any money was taken.

Stange, who said he was never interviewed by police, prosecutors or defense lawyers, worked the day shift at the station before Lopez. In a recent interview, he said he was called back that night after the murder to clean up the blood and conduct the inventory.

He said he found $55 in cash receipts as well as $200 kept at the station to make change for customers.

Lopez, he said, always made sure that when she accumulated $100 in receipts, she immediately put it in the safe and noted the time and the amount of the cash drop in the station's daily log.

A copy of the log shows that Lopez last made a drop of $100 at 7:31 p.m., 38 minutes before she was attacked.

For De Luna's $149 to have been robbery proceeds, Stange explained, Lopez would have had to take in at least that much in the half-hour before the crime occurred, without putting any of it in the safe. Lopez, he said, "would have never kept that kind of money in the drawer without making a drop. She didn't want that kind of money on hand. Nobody did."

At the request of the Tribune, Kevin Stevens, a DePaul University accounting professor, examined the inventory report prosecutors used at trial. Stevens, who coincidentally worked at a gas station while in college, concluded that the Sigmor's bookkeeping system was too haphazard to be accurate.

"They can't know how much cash was missing," Stevens said, "because they can't know how much cash was there."

STILL CONFIDENT

After the Tribune began its investigation, the lead prosecutor in De Luna's trial, Steve Schiwetz, decided to examine the case file.

Troubled by some of the questions being raised, he spent hours at the Nueces County district attorney's office with a reporter poring over the trial exhibits, police reports and other documents in the case, as well as studying documents the Tribune provided.

Now a lawyer in private practice, Schiwetz acknowledged that the case relied heavily on eyewitness testimony. "Sometimes it's reliable. Sometimes it isn't reliable," he said in an interview. "And sometimes, in cases like this, you're not entirely sure how reliable it is."

Schiwetz labeled Hernandez a "phantom" at trial, but said he would not have done so if he'd been informed by a fellow prosecutor that Hernandez had been a suspect in the murder of another woman. Schiwetz also said that if he had been told of reports that Carlos Hernandez was claiming to be Lopez's killer, he would have investigated them.

"Anytime somebody's going around saying they killed somebody, I think it's worth looking at," he said. "But I've heard a lot of people make claims for stuff they did or didn't do that weren't true."

Ultimately, Schiwetz points to several elements of the case that still persuade him the jury convicted the right man. De Luna, he said, lied when he claimed to have talked to two women at a skating rink on the night of the crime and lied when he apparently said he first met Hernandez in jail. De Luna had lost all credibility, Schiwetz said.

"He's lying about the most important story he's ever going to tell in his entire life," he said.

In addition, while De Luna said he lost his shirt while scaling a fence, he gave no explanation for how he lost his shoes, Schiwetz noted. Though the crime lab found no blood or other evidence on them, Schiwetz told the jury that De Luna could have stabbed Lopez without getting blood on his shirt and that any blood on his shoes washed off when he ran through wet grass.

As for Hernandez's history of knife crimes, he said, "Every man in this town has carried a knife. And most of us still do. I carry a knife. I did not kill Wanda Lopez or anybody else."

Schiwetz's co-prosecutor on the De Luna case, Ken Botary, also remains confident the verdict was correct.

"I'm not ready to concede Carlos De Luna was innocent," Botary said.

ANGER AND REGRETS

Wanda Lopez's murder still haunts those who were touched by it.

Her brother, Louis Vargas, no longer is filled with the rage that so consumed him that he imagined sneaking into the prison and killing De Luna himself.

Now, when he thinks about his sister's death, he mainly is filled with horror at how she died. He cannot forget her screams on the 911 tape.

"This is like opening a can of worms," he said. "All this time, we were told it was this one guy. Now do we have to think it was somebody else?"

His parents adopted Wanda's young daughter. Now a mother of four, she is raising a family of her own and still lives in Corpus Christi.

De Luna's sister, Rose Rhoton, has long believed in her brother's innocence. She blames his lawyers for not mounting a more aggressive defense and authorities for not pursuing Hernandez as a suspect.

She has regrets of her own as well.

"If God ever gave me a second chance," Rhoton said, sitting in her Dallas home and beginning to cry, "I would fight harder for Carlos."

When Rhoton departed the death house in Huntsville, having seen her brother for the last time, she left him in the care of a minister, Carroll Pickett.

The death house chaplain, Pickett prayed with De Luna and, as he did with all inmates facing execution, gave De Luna an opportunity to confess and make his peace. De Luna, he said, insisted he was innocent.

De Luna was the 33rd Death Row inmate to whom Pickett ministered, and in the years that followed he would minister to 62 more. But this one stayed with him always: how De Luna claimed he was innocent, how he took longer to die than most inmates, how he tried to raise his head from the gurney and speak to Pickett before the lethal injection left him lifeless.

"When I saw him die," Pickett said, "part of me died too."

The experience forced him to ask a question he says he still can't answer: Do the innocent die differently than the guilty?

mpossley@tribune.com

Sunday, February 22, 2009

CARLOS DE LUCA CASE (3): TRIBUNE SERIES; PART TWO;


The Chicago Tribune has distinguished itself with its stories on Carlos De Luna - a man who was executed by the State of Texas for the murder of Gas Station clerk Wanda Lopez;

The Tribune, which also distinguished itself in its investigative reporting on the Cameron Todd Willingham case, published a three-part special report - to be run over the next three posts on this Blog - which suggests that De Luna died for another man's crime.

(Tribune reporter's Steve Mills and Maurice Possley reported both the Willingham and De Luna stories;)

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"TWO YEARS LATER, DE LUNA CAME WITHIN 13 HOURS OF EXECUTION BEFORE A FEDERAL JUDGE GRANTED A STAY TO ALLOW ANOTHER LEGAL CHALLENGE. IN THAT APPEAL, DE LUNA FOR THE FIRST TIME ASSERTED THAT HIS TRIAL LAWYERS FAILED TO INVESTIGATE HERNANDEZ AS LOPEZ'S KILLER."

REPORTERS STEVE MILLS AND MAURICE POSSLEY: CHICAGO TRIBUNE;

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A phantom, or the killer?
A prosecutor said Carlos Hernandez didn't exist. But he did, and his MO fit the crime. Second of three parts.
By Steve Mills and Maurice Possley | Tribune staff reporters
June 26, 2006;

"CORPUS CHRISTI, Texas - By the time jurors sat down to decide the fate of Carlos De Luna, there was little to debate," the second part of the series begins;

"Though no physical evidence linked him to the fatal stabbing of gas station clerk Wanda Lopez, two eyewitnesses did," it continues;

"One said he observed De Luna outside the station with a knife; the other said he saw him leaving the blood-spattered scene.Then there was the audio recording of Lopez's 911 call, which gave little clue to the killer's identity but graphically documented the attack and Lopez's frantic screams.

"I had nightmares about it for a long time," one juror, Shirley Bradley, recalled. "That tape had a shock-value effect on us. ... It was a clear-cut case."

Finally, jurors rejected De Luna's testimony that another man, Carlos Hernandez, was the real killer. The lead prosecutor scoffed at De Luna's assertion, calling Hernandez a "phantom."

But the jurors who found De Luna guilty and then sentenced him to death in July 1983, five months after his arrest, didn't hear the whole truth.

Hernandez did exist. Not only was he well-known to police in this Gulf Coast city as a violent felon, but the co-prosecutor at De Luna's trial and the lead detective in the case knew Hernandez too.

Four years earlier, they confronted him when he emerged as a leading suspect in a case they handled together--the murder of another Corpus Christi woman.

Jurors heard none of that information. The prosecutor sat silently as his colleague branded Hernandez a figment of De Luna's imagination.

Yet a Tribune investigation shows that the circumstances of Lopez's murder eerily echo the details of Hernandez's lengthy rap sheet--gas station robberies, knife attacks and several assaults on women.

In 1979, he was arrested as a suspect in the slaying of a woman found strangled in her van, an "X" carved in her back, but was released for lack of evidence.

Two months after Lopez's murder on Feb. 4, 1983, Hernandez was arrested while lurking behind a convenience store. In his pocket was a knife.

And over the next six years, while De Luna waited in vain for his legal appeals to keep him from the execution chamber, Hernandez's list of crimes continued to grow.

A SHORT FUSE

The Hernandez home on Carrizo Street, just a few blocks from Corpus Christi's tired downtown, was in the 1980s a place of drunken arguments and violence, much of it perpetrated by Carlos Hernandez.

"Every time there was a fight, there was blood," recalled Priscilla Jaramillo, one of Hernandez's nieces, who lived in the house for several years. "That home on Carrizo Street was nothing but blood."

The patriarch of the family, Carlos Hernandez Sr., was sent to prison in 1960 on a rape conviction. His eldest son, Carlos Jr., was 5 at the time. After being released, his father never came home.

The matriarch, Fidela Hernandez, took out life insurance on all six of her children, collecting on four. She matter-of-factly describes their fates:

Her youngest son, Efrain, was murdered in 1979. Her eldest daughter, Pauline, died of cancer in 1996. Another son, Javier, was slain in 1997. And then there was Carlos, whom she kicked out of the house when he was 16 because Javier and he fought so much. He died in prison in 1999.

Gerardo Hernandez, 50, the only surviving son, describes their home life this way: "We were not a family. We were dysfunctional in every way."

He fled as a teenager and now lives in California. "I had to get away from them as fast as I could," he said.

Family members portray Carlos Hernandez as a man with a vicious streak, particularly when he was drinking. He had a particular fondness for a knife with a folding lock blade, the kind that killed Lopez. He constantly sharpened it on a whetstone, family members and friends recall, and demonstrated its keenness by shaving hair off his forearms.

"He could pop that sucker out real quick," said Marshall Lester, a Hernandez friend. "He slept with it and everything. He had it with him at all times. . . . And he was real quick about stabbing people. He'd get angry real quick if something didn't go his way."

Hernandez's first major brush with the law came at age 16 when he was found delinquent for drunken driving and negligent homicide. Driving home from a party with his sister and her fiance, he slammed into another car at more than 100 miles an hour, killing the fiance.

In the years to come, his rap sheet grew as he was arrested for sniffing paint, stealing a car and three robberies--all at gas stations.

The robberies got him a 20-year prison sentence at age 18. He served less than six years, and after returning to Corpus Christi in 1978, he held a series of laborer jobs, drank heavily and continued to brawl.

Jon Kelly, an attorney who represented Hernandez in the late 1970s and '80s, said Hernandez was one of the most frightening men he knew. Kelly recalled a time when he mentioned to Hernandez that a client owed him money. Hernandez talked to the man, and the bill was paid.

After that, Kelly said they would sometimes meet for a drink or smoke marijuana together. Kelly remembers walking into a tough bar and "everybody stopped and stepped back. . . . It was because of Carlos."

In November 1983, four months after De Luna was sent to Death Row, Hernandez was arrested for assaulting his wife, Rosa Anzaldua, with an ax handle, according to police reports.

He also shattered a window, sending a shower of glass onto one of Anzaldua's three sleeping children. Hernandez threatened to kill her and the children.

He was sentenced to 30 days in jail. She filed for divorce.

ON DEATH ROW

Carlos De Luna spent his time on Death Row working in a prison shoe shop, taking correspondence courses in business, and writing letters to his family. He also found himself in a familiar kind of trouble.

In 1984, guards discovered De Luna and another inmate sniffing glue. The guards seized a bottle of glue and a bottle of paint thinner.

Two years later, De Luna came within 13 hours of execution before a federal judge granted a stay to allow another legal challenge. In that appeal, De Luna for the first time asserted that his trial lawyers failed to investigate Hernandez as Lopez's killer.

Through it all, De Luna tried to stay upbeat during visits with relatives, according to a half sister, Mary Arredondo. Mostly, she said, they stuck to small talk about family matters. Inevitably, though, the conversation turned to De Luna's case.

"I always asked him. He said Carlos Hernandez did it," Arredondo recalled. "I asked him why he ran. He said that he was on parole and didn't want to go back to jail."

By June 1988, De Luna had been on Death Row for nearly five years and was despairing.

"I sometimes sit here at night, and I cry to myself," he wrote, "and I wonder how could I have ever let some stupid thing like this happen because of a friend who did it and I kept my mouth shut about it all.

"But I don't blame anyone but myself and I accept that," he added, "that is why I [will] accept it if the state of Texas decides to execute me."

ANOTHER ATTACK

While De Luna sat on Death Row, Hernandez was on the streets of Corpus Christi and often back in court, facing allegations that he had attacked women.

In 1986 a grand jury indicted him in the strangulation murder seven years earlier of Dahlia Sauceda. Police had discovered the naked body of Sauceda--an "X" carved in her back--in her van in a parking lot. Her 2-year-old daughter was asleep next to her.

When her body was discovered in 1979, police found Hernandez's fingerprint on a beer can in the van along with a pair of his boxer shorts. He was arrested and questioned.

At first Hernandez told police he had not seen Sauceda in months. A day later he said he had been in the van with Sauceda and had sex with her. But he insisted he did not kill her, and police, saying they didn't have enough evidence, let him go.

When another man was charged with the murder, his defense lawyer asserted that Hernandez was the real killer. Prosecutor Ken Botary--later the co-prosecutor in De Luna's trial--interviewed Hernandez in his office before the trial.

Hernandez was brought to that tape-recorded interview by Detective Olivia Escobedo, who would be the lead investigator in Wanda Lopez's murder. At trial, Botary cross-examined Hernandez. The defendant was acquitted.

When Hernandez was later charged with Sauceda's murder, police said they had new evidence: His girlfriend, Diana Gomez, told them he had confessed to the murder.

Gomez said Hernandez told her that he had killed Sauceda because she was having an affair with Hernandez's brother-in-law Freddy Schilling.

"He carved the `X' in her back with a knife," according to a police account of Gomez's statement.

A judge later dismissed the murder charge because prosecutors couldn't find the tape of Botary's interview with Hernandez.

Two decades later, Fidela Hernandez, now 80, says she believes her son was innocent of the Sauceda killing. "He got on his rodillas [knees] and said, `Mama, I didn't do it,'" she said in an interview. "But Carlos, if he killed her, he had a right to kill her. Freddy didn't take care of my daughter."

THE FINAL HOURS

After years of failed appeals, De Luna lost his final bid for clemency on Dec. 6, 1989.

By then, prison guards had moved him to the holding cell just steps from the execution chamber in Huntsville. It was there that he met death-house chaplain Carroll Pickett. A Presbyterian minister, Pickett had counseled 32 other prisoners in the seven years since Texas resumed executions in 1982.

As he had with each prisoner, Pickett explained to De Luna every detail of what would take place in the coming hours: how the warden would come and say it was time to go; how there were eight steps from the holding cell to the door of the execution chamber, five more to the gurney; how guards would strap him down; and then, finally, how the warden would remove his glasses to signal for the flow of lethal chemicals to begin.

De Luna's only question for Pickett was whether it would hurt when the needles were inserted in his arm.

Later that day, De Luna, the youngest of nine children, visited with family members--his sister Rose, her fiance, a half brother and his wife.

Shortly before 5 p.m., the U.S. Supreme Court turned down his appeal. De Luna showered and donned dark blue pants and a light blue shirt.

Increasingly anxious, he asked Pickett if he could call him daddy. "I never had a daddy," Pickett said De Luna told him. "You are like my daddy should have been."

About 7 p.m., after the governor denied De Luna's clemency request, Pickett talked to him about the crime. In ministering to condemned prisoners, Pickett had learned that, in their last hours, most inmates, even those who would claim innocence in a final statement, would confide their guilt to him.

"I'm the last person they're going to talk to," Pickett said in an interview, "so they feel they can finally talk about it."

De Luna told him he was innocent.

Shortly before 10 p.m., De Luna asked to make a call to a former Corpus Christi TV reporter who had covered the trial and kept in touch in the years afterward.

"We both knew there was no hope at that point," the reporter, Karen Boudrie, said. "I asked him point-blank: Is there anything you want to get off your chest?

"He said, `I'm not the bad guy they say I am,'" she recalled. "He said, `I didn't do it.'"

Around 11 p.m., De Luna looked at Pickett and said, "Let's get serious."

They grasped hands through the cell bars, and De Luna asked Pickett to pray that he would be strong in his last minutes and that he would be quickly received into heaven.

When they began, Pickett noticed, De Luna was sitting on the side of the bunk; by the end, he had dropped to his knees on the cell's cold concrete floor.

"A little after 12, the signal came. I stepped back," Pickett recalls in a recording he made shortly after the execution. "The doors opened. I walked into the death chamber, the death house itself. Carlos followed behind me."

De Luna climbed onto the gurney. "As he laid down, he said, `Are you here, chaplain?' I had assured him I would be. He asked me to hold his hand. . . . I told him he had done fine," Pickett says on the tape. "And he said, `This is not so bad.'"

After the witnesses to the execution filed in, the warden asked: "Carlos De Luna, do you have any last words?" De Luna made no reference to the slaying of Wanda Lopez. "I want to say that I don't hold any grudges," he said as part of his short final statement.

At that, the warden removed his glasses.

"After about 10 seconds, [De Luna] raised up his head and looked at me with those big brown eyes," Pickett says on the tape. "The warden looked at me, and I looked at him. He was concerned. I was concerned. Something was not going right. Because he should have been asleep.

"After about 10 seconds more, he raised his head up again. He looked square in my face and my eyes. I just simply squeezed his leg. I don't know what he was trying to say. I wish I did.

"This bothers me and probably will forever and ever. Because nothing was happening. I had told him, I had promised him it wouldn't hurt, it wouldn't take long. Now we were more than 25 seconds into it, and he was still able to raise his head up and look. I was sickened."

Pickett looked at the tube running into De Luna's veins. He could see the bubbles indicating where each chemical ended and the next began.

More than 9 minutes passed.

"He gave a couple of exhales, and that was it." At that, the doctors came in and declared De Luna dead. It was 12:24 a.m.

"The first injection began at 12:14," Pickett spoke into the tape recorder later. "This was 10 minutes. Too long. Way. Too. Long."

Partly as a result of watching De Luna's execution, Pickett eventually became an activist against the death penalty.

"This one I wonder: What was he trying to tell me, if anything, when he raised up his head? ... What did he say? What did he think?

"Whatever," Pickett added, "Carlos De Luna did not need those extra minutes and certainly not those extra 25 seconds. That I will never forget."

LEAVING NO VICTIMS

By the time De Luna was executed, Hernandez was on his way back to prison for another knife attack on a woman. He had sliced Dina Ybanez, a friend, from her navel to her sternum.

Hernandez was living in Ybanez's garage, baby-sitting her children in the daytime. During a quarrel, Ybanez told police, Hernandez pulled a knife out of his back pocket and attacked her. He ran away but was arrested a short distance away, wearing bloody jeans.

"He told me he was going to kill me," Ybanez said in a recent interview, "because he wasn't used to leaving live victims."

Hernandez pleaded guilty to the assault and was sentenced to 10 years in prison. He served less than two years before he was paroled and moved back to Corpus Christi.

Hernandez went to prison for the last time in 1996 after he assaulted a man. When police arrested him, he was carrying two knives.

He never got out. Years of heavy drinking finally caught up to him in the spring of 1999, at age 44. Suffering from cirrhosis, he was confined to a prison infirmary outside Texarkana.

On the evening of May 6, 1999, he died, and his body was taken to the inmate cemetery in Huntsville. His mother would not bring his casket home.

She said she told the prison authorities: "Bury him in the dirt there.""


Harold Levy...hlevy15@gmail.com;

Saturday, February 21, 2009

CARLOS DE LUCA CASE: (2); TRIBUNE SERIES (PART ONE);


The Chicago Tribune has distinguished itself with its stories on Carlos De Luna - a man who was executed by the State of Texas for the murder of Gas Station clerk Wanda Lopez;

The Tribune, which also distinguished itself in its investigative reporting on the Cameron Todd Willingham case, published a three-part special report - to be run over the next three posts on this Blog - which suggests that De Luna died for another man's crime.

(Tribune reporter's Steve Mills and Maurice Possley reported both the Willingham and De Luna stories;)

-------------------------------------------------------------------------------

"HIS CASE REPRESENTS ONE OF THE MOST COMPELLING EXAMPLES YET OF THE DISCOVERY OF POSSIBLE INNOCENCE AFTER A PRISONER'S EXECUTION."

REPORTERS STEVE MILLS AND MAURICE POSSLEY: CHICAGO TRIBUNE;

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`I didn't do it. But I know who did'
New evidence suggests a 1989 execution in Texas was a case of mistaken identity. First of three parts.
By Steve Mills and Maurice Possley | Tribune staff reporters
June 25, 2006;

"CORPUS CHRISTI, Texas - For many years, few questioned whether Carlos De Luna deserved to die," the first part of the series begins;

"His execution closed the book on the fatal stabbing of Wanda Lopez, a single mother and gas station clerk whose final, desperate screams were captured on a 911 tape," it continues;

"Arrested just blocks from the bloody crime scene, De Luna was swiftly convicted and sentenced to death--even though the parolee proclaimed his innocence and identified another man as the killer.

But 16 years after De Luna died by lethal injection, the Tribune has uncovered evidence strongly suggesting that the acquaintance he named, Carlos Hernandez, was the one who killed Lopez in 1983.

Ending years of silence, Hernandez's relatives and friends recounted how the violent felon repeatedly bragged that De Luna went to Death Row for a murder Hernandez committed.

The newspaper investigation, involving interviews with dozens of people and a review of thousands of pages of court records, shows the case was compromised by shaky eyewitness identification, sloppy police work and a failure to thoroughly pursue Hernandez as a possible suspect.

These revelations, which cast significant doubt over De Luna's conviction, were never heard by the jury.

His case represents one of the most compelling examples yet of the discovery of possible innocence after a prisoner's execution.

Presented with the results of the newspaper's inquiry, De Luna's prosecutors still believe they convicted the right man. But the lead prosecutor acknowledged he is troubled by some of the new information. And a former police detective told the Tribune that he got tips about Hernandez shortly after the crime and now believes the wrong man was executed.

Missing from this case is DNA or some other kind of evidence that could provide conclusive proof of De Luna's guilt or innocence. The store wasn't equipped with a security camera that could have captured images of the killer.

The newspaper learned of De Luna from a Columbia University law professor who had begun to dig up evidence that pointed to Hernandez, who died in 1999.

The possibility of De Luna's innocence played no role in his final appeal, which focused on his lawyers' failure to present any mitigating evidence at his sentencing.

When that failed, and when Texas' governor declined to grant him clemency, De Luna, 27, quietly accepted his fate a few minutes after midnight on Dec. 7, 1989. He thanked the warden for being treated well by the guards and prayed on his knees with the death-house chaplain.

Strapped onto the gurney, chemicals flowing into his veins, De Luna didn't close his eyes. After 15 seconds, he jerked his head up and apparently tried to speak.

Ten more seconds passed. De Luna raised his head again and stared into the chaplain's eyes. De Luna tried again to speak but failed and soon lost consciousness.

The moment was seared into the chaplain's memory. What, he still wonders, was De Luna trying to say?

SCREAMS FOR HELP

On a cool Friday in February 1983 just after 8 p.m., George Aguirre pulled his van into a Sigmor gas station on South Padre Island Drive, a four-lane thoroughfare flanked by strip malls and fast-food restaurants that leads from downtown Corpus Christi to the Gulf of Mexico.

While he was pumping gas, Aguirre would later testify, a man standing outside the station with a beer can in his hand slid a knife, the blade exposed, into his pocket and approached.

The man asked for a ride to a nightclub.

When Aguirre refused, the man walked back to the side of the station, and Aguirre went inside to warn Lopez, 24, the clerk.

She said she would call the police, and Aguirre, the only customer in the station, left. When Lopez did call, a dispatcher said officers could do nothing unless the man came inside.

Minutes later, when he did, Lopez redialed police, and dispatcher Jesse Escochea took the call.

"Can you have an officer come to 2602 South Padre Island Drive?" she asked, according to a tape of the call. "I have a suspect with a knife inside the store."

"Has he threatened you in any way?" Escochea asked.

"Not yet," Lopez said, her voice rising in alarm. Then, apparently speaking to the man at the counter, she asked, "Can you give me just a minute?"

"What does he look like?" Escochea asked.

"He's a Mexican," Lopez said, dropping her voice. "Standing right here at the counter."

"Huh?" Escochea said.

"Can't talk," she said in a near-whisper. To the man, she said, "Thank you."

"Don't hang up, okay?" Escochea said.

"Okay," Lopez said. Then, to the man: "Eighty-five cents."

"Where is he now?" Escochea asked.

"Right here," Lopez replied.

"Is he a white male?"

"No."

"Black?"

"No."

"Hispanic?"

"Yes," she said.

"Tall? Short?" Escochea asked.

"Uh-huh," said Lopez, her voice straining to remain calm.

"Tall?"

"Tall."

"Thank you," she said to the man at the counter.

Escochea continued: "Does he have the knife pulled out?"

"Not yet!" Lopez said.

"Is it in his pocket?"

"Uh-huh," she said.

"All right," Escochea said. "We'll get someone over there."

Suddenly, Lopez shouted in a panic, "You want it? I'll give it, I'll give it to you! I'm not gonna do nothing to you! Please!"

As the telephone banged to the floor, Escochea issued an urgent call: "Got an armed robbery in progress going down!"

In the background, Lopez was screaming.

About the same time, Kevan Baker, a car salesman, pulled into the station to buy gas for his 1967 Mercury Cougar. As he grabbed a gas nozzle, he heard a bang on the station window.

When he looked toward the station, Baker was startled to see a man struggling with a woman.

Lopez was bent over at the waist, and the man was yanking on her shoulder-length hair, dragging her toward a storeroom behind the counter.

"As I turned and saw them and started walking toward the door, he threw her down and proceeded to meet me at the door," Baker later testified.

"Don't mess with me. I've got a gun," the man told Baker.

The two locked eyes for a couple of seconds, Baker said, then the man took off.

As the attacker fled on foot, Lopez staggered out the door.

"Help me," she moaned, sliding to the pavement. "Help me."

Baker ran into the station and grabbed paper towels to try to stop the bleeding from the stab wound in her left side. As he came out of the station, the first police car arrived.

Officer Steve Fowler rushed to Lopez.

"I bent over and asked her what had happened. But when I saw her condition, I just--that was it," Fowler later testified. "I just didn't bother asking anything else. . . . She was dead."

BLOODY CRIME SCENE

About 40 minutes after the attack, police converged on a truck parked on a side street a few hundred yards from the station.

"Don't shoot! You got me!" De Luna shouted.

He was lying shirtless and shoeless in a puddle of water under the pickup when the officers pulled him onto the lawn of a nearby house. He had $149 in his pocket.

They handcuffed him, put him in the rear of a squad car and drove him to the Sigmor. Aguirre and Baker separately were led to the car, where an officer shone a flashlight into De Luna's face.

Both men identified him as the person they had seen at the station.

As police drove De Luna to jail, he grew agitated. "I'll help you, if you help me," he repeatedly told the officers, according to a police report.

They ignored him, and finally he blurted out: "I didn't do it. But I know who did."

After Lopez was taken to the hospital, evidence technician Joel Infante and Detective Olivia Escobedo began processing the crime scene, a task that was completed in about an hour.

The station, particularly the area behind the counter, was a bloody mess, with spatters on the machine used to activate the gas pumps as well as large smears and pools on the floor.

Lopez's bloodstained flip-flops were behind the counter, where they apparently had come off during the struggle.

Crime scene photographs show a folding knife, its blade exposed, on the floor near the station's safe. Three $5 bills were scattered behind the counter. A pack of cigarettes sat on top of it.

In a recent interview, Infante, now retired, said his job was to follow Escobedo's directions, taking photographs as well as dusting for fingerprints.

Infante said he found three fingerprints inside the station--two on the front door and one on the telephone. But all were of such poor quality that they were worthless.

He was unable to get fingerprints from the knife found on the floor or from the pack of cigarettes on the counter. Infante took no samples of the blood inside the station.

The day after the murder, a man who lived near where De Luna was arrested found a white shirt and shoes that apparently belonged to De Luna.

The clothes and shoes--as well as swabs from his face--were sent to the state crime lab for testing. No blood was found.

HISTORY OF TROUBLE

By the time of his first arrest at 15, Carlos De Luna was a 7th-grade dropout who liked to sniff paint and glue.

His rap sheet eventually would include nearly two dozen crimes, mostly offenses such as public drunkenness, disorderly conduct, auto theft and burglary. He was in and out of juvenile detention, but it wasn't until a 1980 arrest that he faced time in an adult prison.

He was then living with relatives in Dallas and working at a Whataburger franchise. Charged with attempted aggravated rape and driving a stolen vehicle, he pleaded no contest and was sentenced to 2 to 3 years.

Paroled in May 1982, De Luna returned to Corpus Christi. Not long after, he attended a party for a former cellmate and was accused of attacking the cellmate's 53-year-old mother. She told police that De Luna broke three of her ribs with one punch, removed her underwear, pulled down his pants, then suddenly left.

He was never prosecuted for the attack, but authorities sent him back to prison on a parole violation. Released again in December of that year, he came back to Corpus Christi and got a job as a concrete worker.

Almost immediately, he was arrested for public intoxication. During the arrest, De Luna allegedly laughed about the wounding of a police officer months earlier and said the officer should have been killed.

Two weeks after that arrest, Lopez was murdered.

After authorities charged De Luna with the slaying, the court appointed Corpus Christi attorney Hector De Pena Jr. to defend him. Because this was De Pena's first capital case, James Lawrence, an attorney with death penalty defense experience, was assigned to the case.

It wasn't until five weeks before trial that Lawrence met with De Luna to hear his account of what happened. Lawrence then requested that the court pay $500 for a private investigator.

De Luna told Lawrence that on the day of the crime, he cashed his $135.49 paycheck from his construction job and drank beer with friends. That night, he said, he was at a skating rink talking with two women and left to walk toward a nightclub to find someone to give him a ride home.

He said he was at the nightclub, across from the Sigmor station, when he heard sirens. Because he had been paroled from prison only weeks earlier, he panicked and ran.

"I remember our client said, `I didn't do it. I had to run because I saw what was happening, and no one was going to believe me,'" Lawrence recalled.

While fleeing, he lost his shirt as he scaled a fence, De Luna said. He also lost his shoes, though he never explained in court how or why.

As the trial approached, Nueces County prosecutor Steve Schiwetz offered De Luna the same deal he said he offered other capital murder defendants: plead guilty in exchange for a life sentence.

"I would always be inclined to try to let a person try to save his life," Schiwetz recalled.

But De Luna turned down the deal, insisting he was innocent.

The defense strategy was to challenge the state's eyewitness identification of De Luna. They noted that on the night Lopez was killed, the first descriptions broadcast over the police radio mentioned a Hispanic male in a gray sweatshirt or flannel shirt, not the white dress shirt police said De Luna was wearing that night.

They also intended to emphasize crime lab tests that failed to turn up a single drop of blood on the white shirt and shoes -- surprising given the bloody crime scene and Baker's account of the struggle between Lopez and her attacker.

On the eve of trial, De Luna suddenly expanded on his claim of innocence by saying he left the skating rink with an acquaintance that night.

De Luna told his lawyers that on their way to the club the man went to the station to buy a pack of cigarettes, which sold for 85 cents--the same amount Lopez is heard saying on the 911 tape shortly before she was stabbed.

This man, De Luna said, was the real killer, and his name was Carlos Hernandez.

De Luna's attorneys passed on Hernandez's name to the prosecution. But Lawrence and De Pena can't recall whether they or their investigator pursued the possibility that Hernandez killed Lopez--apparently leaving it to the state to check out their own client's alibi.

While De Luna would later testify that he had first met Hernandez when they were teenagers, the exact nature of their relationship--whether they were good friends or just acquaintances--is difficult to sort out.

What the lead prosecutor, Schiwetz, recalls is that De Luna's lawyers told him their client had met Hernandez in jail. Nueces County records were pulled and sent to lead detective Escobedo.

When they showed that the men were never in jail at the same time, Schiwetz didn't pursue De Luna's claim further.

Convinced that De Luna was a liar, Schiwetz had reason to be confident going to trial in July 1983. He effectively destroyed the part of De Luna's alibi that on the night of the crime he was at the roller rink talking to two women. Under Schiwetz's questioning, one of the women testified that she was not at the rink but at her baby shower. And she had photos to prove it.

As for De Luna's claim that Hernandez committed the murder, Schiwetz in his closing argument ridiculed that as well. Hernandez, he told the jury, was a "phantom."

Yet Hernandez was well-known to authorities, especially to the co-prosecutor at Schiwetz's side.

Feared for his violent temper, Hernandez had another distinguishing characteristic: He was particularly fond of knives.


Harold Levy...hlevy15@gmail.com;

Friday, February 20, 2009

CARLOS DE LUCA CASE: (1); ECHOES OF CAMERON TODD WILLINGHAM TRAGEDY: YET ANOTHER INNOCENT MAN EXECUTED BY TEXAS? TRIBUNE SERIES; INTRODUCTION;


The Chicago Tribune has distinguished itself with its stories on Carlos De Luna - a man who was executed by the State of Texas for the murder of Gas Station clerk Wanda Lopez;

The Tribune, which also distinguished itself in its investigative reporting on the Cameron Todd Willingham case, published a three-part special report - to be run over the next three posts on this Blog - which suggests that De Luna died for another man's crime.

(Tribune reporter's Steve Mills and Maurice Possley reported both the Willingham and De Luna stories;)

For now, here is the Tribune's introduction to the special report - published on June 24, 2006;

"Since the U.S. Supreme Court approved the reinstatement of the death penalty 30 years ago, there has yet to be an instance of DNA proving that an innocent person was executed," the introduction begins;

"As more cases are re-examined, though, doubt is being cast on a number of executions--especially those in Texas, where the criminal justice system has executed more people than any other state," it continues;

"The Tribune has been investigating criminal justice issues in depth since 1999. Its examination of flaws in Illinois' death penalty system helped prompt a moratorium on executions in the state.

The paper also has exposed problems in Texas' death penalty system. In 2004, it revealed the faulty science behind the arson investigation that led to the execution of Cameron Todd Willingham. Last year, a Houston Chronicle investigation cast serious doubt on the evidence that sent Ruben Cantu to the death chamber.

The Tribune learned of Carlos De Luna, who was executed in 1989 for a murder in Corpus Christi, after James Liebman, a professor at Columbia Law School in New York City, contacted the newspaper.

Liebman has co-authored studies that found high rates of court reversals due to serious error in capital cases. In subsequent research with students on behalf of the NAACP Legal Defense and Educational Fund, he came across the De Luna case. Liebman asked a private investigator to go to Corpus Christi and look into De Luna's claim during his trial that another man was the real killer.

A woman told the investigator the other man had bragged about committing the murder. Believing De Luna's execution was worth a deeper look, Liebman contacted the Tribune.

"This was no longer a legal or academic enterprise," he said.""


Harold Levy...hlevy15@gmail.com;

Thursday, February 19, 2009

CAMERON TODD WILLINGHAM CASE: PART SEVEN; ARSON INVESTIGATIONS COME UNDER FIRE; IMPORTANT PERSPECTIVE; REPORTER SUE RUSSELL: MILLER-MCCUNE MAGAZINE;


On February 17 February, 2004, Cameron Todd Willingham, 36, was executed by lethal injection in Huntsville, Texas for the murder of his three children.

The charge was laid in connection with a fire which occurred on 23 December 1991, at his Corsicana home in which his three children -- 2-year-old Amber Kuykendall and 1-year-old twins Karmon and Kameron Willingham, died of smoke inhalation.

Strong doubts have hovered over Willingham's execution since the Chicago Tribunal ran an investigation of the prosecution which made a compelling case that the fire blaze was an accident;

In a recent development, the Texas Forensic Science Commission hired an expert to review the evidence - in what has been called "the first state-sanctioned inquiry into a Texas execution;"

This Blog will monitor developments in the Willingham case - in view of the fact that Larry Swearingen remains on death row in the State of Texas which apparently boasts that it has never executed an innocent man;

Four pathologists have taken issue with the pathological evidence called by prosecutor's at Swearingen's trial - and contend that the scientific evidence in the case indicates that he could not have committed the crime because he was locked up in prison when it was committed;

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WHILE IT'S TOO LATE FOR WILLINGHAM, THE NEW YORK INNOCENCE PROJECT WAS GALVANIZED TO CREATE AN ARSON REVIEW COMMITTEE CORRALLING FIVE TOP EXPERTS, INCLUDING LENTINI AND VETERAN INVESTIGATOR DOUGLAS CARPENTER, TO COMPARE WILLINGHAM'S CASE TO THAT OF ERNEST WILLIS, A FELLOW TEXAN CONVICTED ON SIMILAR EVIDENCE OF SETTING A FIRE THAT KILLED TWO SLEEPING WOMEN IN A HOUSE HE WAS STAYING IN. AFTER 17 YEARS IN PRISON AND ONLY MONTHS AFTER WILLINGHAM'S EXECUTION, WILLIS WAS EXONERATED AND RELEASED.

THE ARSON REVIEW COMMITTEE'S 2006 REPORT ECHOED HURST IN DISCREDITING ALL THE "ARSON INDICATORS" FOUND BY DEPUTY STATE FIRE MARSHAL MANUEL VASQUEZ AT THE WILLINGHAM FIRE. PATTERNS VASQUEZ ATTRIBUTED TO IGNITABLE LIQUID OR ACCELERANT, IT CONCLUDED, COULD NOT BE USED TO DISTINGUISH ARSON FROM AN ACCIDENTAL FIRE.

REPORTER SUE RUSSELL; MILLER-MCCUNE MAGAZINE;

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Journalist Sue Russell has written an important article which provides an illuminating context for the Cameron Todd Willingham case by highlighting commonly used forensic indicators of arson - which now have been discovered to be flawed;

Russell's work has appeared internationally in such publications as the Washington Post, New Scientist and The Independent. She is the author of Lethal Intent, a biography of executed serial killer Aileen Wuornos.

The article, headed "Arson Convictions, Fire Investigations Feel the Heat:
As decades of flawed and unscientific fire investigation techniques call arson convictions into question, new recipes emerge for a system-wide overhaul," appeared in the February 7, 2009 edition of Miller-McClune Magazine;

It bears the sub-heading: "Discredited traditions and bad science have led many fire investigations to unjustifiably point to arson."

(Miller-McCune magazine, launched in 2008, is published in print and online, by the nonprofit Miller McCune Center for Research, Media and Public Policy, with support from SAGE publications;)

"Phoenix attorney Larry Hammond knows just how much is riding on the paperwork on his desk," the article begins;

"The chairman of the Arizona Justice Project, he is fighting hard to overturn the conviction of Louis C. Taylor, imprisoned 38 years ago for intentionally setting a catastrophic fire at Tucson's landmark Pioneer Hotel that ultimately killed 29 people," it continues;

"Ever since Hammond first studied the case in 1999, he's been convinced that the blaze was not arson.

Taylor, now in his 50s but then a 16-year-old petty thief known to hang around pool halls, claimed he slipped into the hotel that December night to cadge free food and drinks in the ballroom. After the fire broke out, he was spotted nearby with matches in his pocket.

Unfortunately for Taylor, 1970 was the dark ages of fire investigation. Arson investigator Cyrillis W. Holmes Jr. found no tangible evidence of how the fire started, yet he divined from burn patterns and fire debris that at least two fires had been deliberately set about 60 feet apart in the fourth-floor hallways.

Multiple points of origin are a powerful indicator of arson — if they're real. But old-time fire investigation was a mix of old wives' tales, myths and oral hand-me-down wisdom with no science behind it. Fire debris was read like tea leaves. And marks on floors and carpets called "pour patterns" were routinely interpreted as points of origin and cited as evidence of an arsonist pouring liquid accelerants like gasoline.

Since then, science has rendered such "arson indicators" obsolete and convictions based upon them questionable.
It is one thing to suspect that fallacious evidence helped convict someone like Taylor, quite another to secure a new trial or exoneration because of "new" scientific evidence. But Larry Hammond isn't cowed by a tough fight, and buoyed by a "breathtaking" report from renowned independent fire scientist John Lentini, he's readying a petition to file in state court.

He knows he has a tough road ahead.

"Our legal system is designed to foreclose post-conviction review," he noted, "and it does frustrate, and has frustrated, many of these cases." Attorney Walter Reaves, who works with the Innocence Project of Texas, agreed: "You have to convince a court that it is (newly discovered evidence), and then you have to convince them to actually listen and hear it."

DNA is the undisputed gold standard for exonerations, a virtually unassailable magic bullet. But arson convictions are a new frontier for exoneration work, and they are qualitatively different. If you find a bullet or knife in a dead man's back, no one disputes that a crime has taken place. Fires, however, are not so simple.

Discredited Evidence
In America, while suspects are presumed innocent until proven guilty, frequently fires are not presumed accidental until proved to be arson. All fires necessitate an extra investigative step — an independent, science-based determination of arson to first ascertain that a crime even took place.

Civil cases often bifurcate issues of liability and damages, making the jury's first task to determine if a fire was intentionally set. Criminal arson cases seem to cry out for the same approach, given that a determination of arson alone can never definitively tie a person to a crime scene or unequivocally reveal a perpetrator's identity.

Yet any serious proposal for a similar system would be met, Lentini surmised, with "universal screaming and gnashing of teeth," and allegations that criminals were being allowed to slip through the net.

Gnashing teeth notwithstanding, the need for reform is critical. Lentini cites figures of 75,000 suspicious fires every year — "That's 75,000 chances to get it wrong," as he told CNN's Anderson Cooper.

According to a 2002 Bureau of Justice Statistics report, in just half the states in the U.S., more than 5,000 people are in prison for arson crimes. Arson is the only crime for which someone can receive the death penalty based on the testimony of an expert witness whose education ended with high school. And although no one spoken to for this article would hazard a specific estimate of how many innocents are imprisoned on arson convictions, answers ranged from "dozens to hundreds" to "tons."

If ever a case embodied the disastrous consequences of the obsolete beliefs about fires, it is Cameron Todd Willingham's. The Texan was convicted in 1991 of the arson murders of his three children, all under age 3. In 2004, Willingham's appellate lawyer — Walter Reaves — commissioned a review by chemist Gerald Hurst, a key player in the fire investigation wars. Hurst's powerful report debunked all 20 so-called "arson indicators" used to convict Willingham. He was executed anyway.

While it's too late for Willingham, the New York Innocence Project was galvanized to create an Arson Review Committee corralling five top experts, including Lentini and veteran investigator Douglas Carpenter, to compare Willingham's case to that of Ernest Willis, a fellow Texan convicted on similar evidence of setting a fire that killed two sleeping women in a house he was staying in. After 17 years in prison and only months after Willingham's execution, Willis was exonerated and released.

The Arson Review Committee's 2006 report echoed Hurst in discrediting all the "arson indicators" found by deputy state fire marshal Manuel Vasquez at the Willingham fire. Patterns Vasquez attributed to ignitable liquid or accelerant, it concluded, could not be used to distinguish arson from an accidental fire.

The report is now under review by the Texas Forensic Science Commission, whose chair, Sam Bassett, told Miller-McCune.com that it has voted to hire an expert to lead them in their investigation. The commission is charged by statute with conducting investigations. If they concur with all the other experts, they could make recommendations for further review or even for system reform.

"I believe it would be within our purview to comment upon any broader issues such as the possibility of misconduct or professional negligence in other cases," Bassett wrote in an e-mail. "However, that is dependent first upon our finding that misconduct or professional negligence occurred in the Willis/Willingham case. Until we receive feedback from our expert, the Commission will remain neutral on this issue and there will be no further comment until such time as we issue our report."
The possibility of misconduct and professional negligence?

"Boy, there's a political football for you," Hurst said skeptically, imagining the ramifications of an official admission that an innocent man was executed.

Carpenter is more optimistic. "I'd certainly hope something tangible comes from the process," he said. "I think they're taking it seriously."

Yet Reaves, the attorney, worries that the commission's very review could do more harm than good: "I just have a hard time envisioning a state sponsored commission coming down and saying, 'Oops, we killed a guy that we shouldn't have killed." He predicted that it will conclude — wrongly — that Willingham was an isolated incident, or a problem that has been remedied and won't happen again.

Bringing in Real Science
Larry Hammond preferred instead to pin his optimism to an imminent National Academy of Sciences report on forensic science reform. He expects it to "trash some sacred cows of forensic science," with arson at the top of the list. Perhaps, the most hopeful and immediately pragmatic agent of change, however, is the Arson Screening Project launched in July 2008 at The Center for Modern Forensic Practice at John Jay College in New York, in consultation with the New York Innocence Project.

It will step into uncharted territory by assessing the scope of arson convictions based on accidental fires. It will also triage meritorious cases for review by the affiliated Arson Review Group of fire scientists, led by Lentini, and eventually will suggest a reform plan. Its director James Doyle said he will use his precious experts judiciously, weeding out time-waster cases where, say, a debunked "arson indicator" meets "a guy found on the crime scene with his eyeb rows burned off and a gasoline can in his hand."

Wrongful convictions are only half the story. Only a multifaceted approach can overhaul a system where, for example, so many fire investigators making judgments of arson have little or no scientific training, and where discredited arson evidence is still presented in courts.

Science officially staked its claim in fire investigation in 1992 with the ground-breaking, peer-reviewed National Fire Protection Association code NFPA 921, the industry standard. By then, a cadre of forward-thinkers like Lentini, Hurst, Carpenter and John DeHaan, author of the Kirk's Fire Investigation handbook, doggedly had been using science with full-scale recreations, test burns and laboratory experiments to study fire's behavior. Incredibly, until then, no one had actually compared the aftermaths of accidental and intentionally set fires.
Arson Convictions, Fire Investigations Feel the Heat
As decades of flawed and unscientific fire investigation techniques call arson convictions into question, new recipes emerge for a system-wide overhaul.

Discredited traditions and bad science have led many fire investigations to unjustifiably point to arson.

Industry acceptance of NFPA 921 proved glacially slow. The emerging scientific information was rejected, disputed and dismissed. Tensions ran high between old guard fire investigators and the science guys. DeHaan can recall receiving hate mail. Old-school investigators weren't bad people, though, just working with bad information. And some defensiveness about potentially having had a hand in wrongful convictions was certainly understandable. Less easy to understand: those diehards still resisting science-based knowledge 16 years later.

In 2006, investigator Cyrillis Holmes told the Arizona Daily Star that he stands by his original opinions about the Pioneer Hotel fire. But insurance investigator Marshall Smyth, who also worked on the case, has since likened himself and Holmes back then to members of a black magic society. "If that fire were to occur again today, there's no way — there's no way — anyone could prove it was arson," he told the paper.

The stark contrast in opinions is emblematic of the split in the field of fire investigations.

Also in 2006, The News-Herald of Ohio reported that Ralph Dolence, a retired investigator then teaching at the Bureau of Alcohol, Tobacco and Firearms, dismissed the "new" arson science as wild nonsense, claiming that investigators like Lentini "muddy the waters" of good investigations. Lentini issued a swift, no-nonsense rebuttal. Still, such accusations seem well past their sell-by dates.

Yet several key players say that finally divesting the shrinking faction of holdouts of their misguided faith in arson indicators like "crazed glass," "alligator blisters" and "concrete spalling" (see sidebar) remains a work in progress.

"I think it certainly is still a problem; I don't think it's as widespread as it used to be," said Bobby Schaal, a 22-year veteran of the ATF speaking only in his capacity as incoming first vice president of the International Association of Arson Investigators. But investigators, lawyers and scientists say that old investigation errors are still being made, and old myths are still being heard in courtrooms.

Common themes emerge when discussing reforms. One hot topic is the routine dependence on negative corpus evidence —simply put, investigators rule out electrical faults and exploding coffee pots, for example, rather than rule in evidence of how a fire did in fact start. So rather than a more accurate description of "cause undetermined," fires are often called arsons based on investigation by exclusion.

To veteran investigator Patrick Kennedy, that practice is unethical and immoral. "I don't know what it is, so it must be arson?" he said. "That is a pretty poor reason to kill somebody."

Prosecutors, defense lawyers and judges could help matters by becoming a safety net of sorts and approaching findings of arson with a healthy dash of skepticism. "I think that the more educated attorneys become and the more honest attorneys become, they can vet out these bad experts," said Schaal, who believes that once they're informed, seeing terms like "spalling" or "crazed glass" in a report should immediately raise a red flag.

To keep flawed evidence out of courts, Hurst also advocates implementing a system of "devil's advocate peer review" in which experts review arson-related evidence pretrial, probably volunteers working via existing regional committees. "If (investigators) start getting their cases rejected," he explains, "or if they're forced back to the drawing board, it will make them much more cautious in making those cases in the first place because they want it to pass peer review."

Trial transcripts and documents could be scanned by computer for distinctive terminology, like "alligator charring." Hurst predicts that with computer scanning, "You're going to find cases like Ed Graf's where old wives' tales will just pop up one after another, just bang, bang, bang." (He recently reviewed the 1988 case of Ed Graf — convicted of burning his two stepsons alive in a shed — for Walter Reaves and declares it "a real stinker, another Willingham.")

The most contentious areas of reform pit the science-qualified experts against the true believers in the superiority of on-the-job experience. "If I have my dream," Patrick Kennedy said, "some day, just like lawyers, you won't be able to enter a courtroom unless you've got a license and a college degree."

And those who embrace science are looking to policymakers and professional societies to raise the industry bar on training, certifying and licensing fire investigators. "I think that the IAAI, the NFPA, the NAFI (National Association of Fire Investigators), anybody should call for the proper credentialing of fire investigators," said the IAAI's Schaal. Lentini suggests all investigators should be certified not by their employers but by a neutral third party like the IAAI or NAFI. And right now, many U.S. fire investigators don't have either of those national organizations' certifications.

Unlike firefighters and public sector investigators, private fire investigators in most states need licenses, and those licenses are covered by private investigator statutes. "They are bogus," Lentini said, "but convey a state credential to someone who has demonstrated a clean criminal history, has filled out a form and sent in a set of fingerprints along with an application and some money. No state license currently requires that a licensed fire investigator actually have any skills in fire investigation."

Practical Experience Plus Diplomas
Certifications and licenses aside, there is a school of thought that only scientists or the scientifically trained should make arson determinations. To understand concepts like thermodynamics and heat transfer, investigators need math, chemistry and physics.

"Fire investigators are largely ex-cops, military, firemen, that sort of thing," Hurst noted. "They don't feel like they need any of this fancy science stuff." He worries that, "no matter how clearly you try to explain these scientific principles to people who are not used to thinking scientifically, you cannot do it."

Brad Hamil, a veteran investigator who long worked with California's San Bernardino Fire Department and is currently second vice president of the California Conference of Arson Investigators, has a different perspective. He greatly values law enforcement training and experience but, "I would say that, yes, there has to be some science in your work," he said. He'd advise newcomers to arm themselves with a bachelor's degree. They won't be any smarter about fire, he said, "but when you're on the stand, 'Well, I have a B.S. degree in science.' Cool. Sounds good to the jury."

Lentini said we've got to live with the fire investigators we have while ensuring the next generation is properly trained. "Certainly, the state legislators should say that people who are going to investigate fires should be qualified by education to do it, and be qualified by experience. They hire firemen," he said. "Eventually, everyone who does this work should be able to document post-secondary education in chemistry and physics, at least at the freshman (101) level."

Required, science-based education may be closer than many realize. If the latest version of the standard professional requirement for fire investigators, NFPA 1033 — compliance with which is required for both the national organizations' certifications — is accepted by local jurisdictions or fire departments, it could go a long way toward keeping unqualified contenders out of the fire investigation business.

Its Trojan horse message, a list of science topics in which an investigator needs training to qualify, could be, said Patrick Kennedy, who sits on NFPA committees, a big surprise to the non-science-based folks who will find that they can no longer qualify under 1033.

"They're going to have to have continuing education in those topics and be able to prove it," he said. He makes no apology for raising the bar. "The problem of people losing their homes or livelihoods in a fire, then being accused of arson with no good reason is," Kennedy said, "the cancer on our industry, and that has to go."

Lentini, who had hoped to see a requirement in 1033 for nonemployer certification within five years, sees progress: "When fire chiefs see that, they're going to say, 'Shit, this means I need a college grad, or at least I need someone who's got some college in science.'"

Until requirements for fire investigators rise across the board, however, results will be mixed. Hamil worked a case with an investigator who made a wrong call on a fire cause. After he admitted to having had only one class in investigations, Hamil reached out, offering to arrange some training options. "I said, 'Call me, I'm the roundtable coordinator for the California conference of fire investigators in my area. We put on training all the time,'" he recalled. "And the phone, to date, has not rung."

Douglas Carpenter is pushing ahead on mapping out a concept for his vision for a national curriculum for fire investigation, ideally a four-year course. That would be expensive. But cities and states can get creative about bringing more science into their fire investigation services.

In December, the Cincinnati Enquirer reported that Cincinnati Police Chief Thomas Streicher Jr., who has a Chief's Scholar Program, sent three officers on scholarship for a one-year master's program at the University of Cincinnati. Surely, appropriate candidates in fire investigation jobs could be put in similar programs. Other affordable options include the IAAI's regional training and online programs at CFITrainer.net, some of which are free.

The fire investigation field is ablaze with ideas despite a dearth of mechanisms with which to make them a reality. And moving forward, many will be looking to the Arson Screening Project for progressive strategies. James Doyle can only aspire to the achievements of the New York Innocence Project. Meanwhile, possible innocents, like Louis Taylor, caught up in flawed determinations of arson are never far from his mind. "Thought has to be given, I think," Doyle said, "to doing something besides saying to prisoners, 'Well, you were born too soon.


Harold Levy...hlevy15@gmail.com;