Phantom justice and the death penalty

National acclaim from sports and show business celebrities, religious and civil rights leaders, and Republican and Democratic politicians greeted Oklahoma Gov. Kevin Stitt’s 11th hour-commutation of Julius Jones’s death sentence for a murder Jones long has claimed he did not commit. How different from Texas’s little-noted December 1989 lethal injection of Carlos DeLuna, despite what the late Supreme Court Justice John Paul Stevens called “evidence beyond a shadow of a doubt that Texas executed the wrong defendant.” 

That difference alone should give us pause about the nation’s death penalty.

Kim Kardashian, Steph Curry, Viola Davis, Baker Mayfield, Martin Luther King’s youngest daughter, the archbishop of Oklahoma City, Republican Oklahoma state legislators and many others broadcast evidence of Jones’s innocence for months before his scheduled execution.

The first evidence of DeLuna’s innocence emerged 15 years after his execution in a research project that Columbia Law School students and I conducted. It took another 15 years for the full truth to emerge this year in Patrick Forbes’s documentary, “The Phantom.”

Forbes’s film vividly unwinds the meager evidence Corpus Christi police and prosecutors presented against DeLuna at trial, adding in many facts the jury never heard. For example, a homeowner dramatically interrupted Forbes’s on-site reenactment of DeLuna’s arrest to report that, 30 years earlier, he saw the actual killer running away while police were busy with DeLuna. A police sergeant acknowledged on camera that he and other officers knew they chased a different man from the murder scene.

At the end of the winding trail that Forbes traces was a different Carlos — Carlos Hernandez, the self-confessed killer whom prosecutors falsely branded a nonexistent “phantom” when his name came up at trial. One prosecutor and the lead police detective on the DeLuna case knew Hernandez as the possible killer a few years earlier of Dalia Sauceda, a young Hispanic woman who had jilted Hernandez.

The film shows that what the police portrayed at trial as DeLuna’s armed robbery gone bad turns out to have been Hernandez’s stabbing of store clerk Wanda Lopez, another young Hispanic woman who had briefly dated Hernandez and moved on. 

Newly discovered police photographs reveal that the victim and assailant slipped in the victim’s blood at the crime scene — not a drop of which was found on DeLuna’s clothes, shoes or body. The knife found at the scene was identical to one police found at the Sauceda crime scene.

Unlike Julius Jones, who had many people advocating on his behalf as he approached death, Carlos DeLuna had only Death Row Chaplain Carroll Pickett, who was officiating his 99th Texas execution. Although eve-of-death conversations with DeLuna convinced Pickett that the young, intellectually disabled DeLuna was innocent, the reverend was powerless to help DeLuna as he suffocated in one of the nation’s earliest botched lethal injections.

As the victim’s family lawyer, Rene Rodriguez, says in “The Phantom,” justice was a scarce commodity in Corpus Christi, where authorities treated the execution of DeLuna — innocent or not — as just “one less Mexican.”   

Jones and DeLuna are not alone. For every 100 men and women executed since1976, 12 prisoners have been exonerated of all charges related to the wrongful convictions that put them on death row. Serious doubts have emerged about the guilt of at least 20 men executed during the period — not to mention others in whose cases evidence of innocence likely will take years to emerge or has died with them.

Noting the risk of executing the innocent, the racial bias in the death penalty system, and his Catholic faith’s opposition to capital punishment, President Biden has movingly described his concerns about the death penalty, including in comments after Julius Jones’s commutation. Like Gov. Stitt for Oklahoma’s death row, Biden is now the last line of defense against the execution of more than 40 men on federal death row. 

Stitt’s “prayerful” act of courage in commuting Jones’s death sentence had the support of conservative law-and-order Republicans and evangelical Protestants. People of those same persuasions and others with politics and faith more aligned with the president’s are urging him to commute the sentences of those on federal death row. 

During the presidential election, Biden promised to “eliminate the death penalty at the federal level.” Lest justice and the sanctity of life remain a phantom — a fortuity of whether celebrities catch wind of miscarriages — President Biden should make good on his promise now.

James Liebman is the Simon H. Rifkind Professor of Law at Columbia University and author of “The Wrong Carlos: Anatomy of a Wrongful Execution.”