The Banality of Wrongful Executions
Garrett, Brandon L., Michigan Law Review
THE BANALITY OF WRONGFUL EXECUTIONS
Los Tocayos Carlos. By James Liebman, Shawn Crowley, Andrew Mark- quart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky. Print version, 43 Columbia Human Rights Law Review 711, 711-1152 (2012); online version with footnotes, available at http://www3.law.columbia.edu/ hrlr/ltc/chapter/editors-note/1.html.
Anatomy of Injustice: A Murder Case Gone Wrong. By Raymond Bonner. New York: Alfred A. Knopf. 2012. Pp. xv, 283. Cloth, $26.95; pa- per, $16.
In Doubt: The Psychology of the Criminal Justice Process. By Dan Simon. Cambridge and London: Harvard University Press. 2012. Pp. 222. $45.
"I didn't do it," said Carlos DeLuna before his 1989 execution in Texas for a 1983 murder in Corpus Christie (Liebman et al., p. 1102). Three de- cades after the murder, we now know that he likely did not do it. And we know who likely really did do it. At the time, DeLuna's execution went un- noticed: there were no candlelight vigils, no petition drives, no international media, and no last-minute clemency requests. DeLuna was, coincidentally, executed in the same year that DNA testing first exonerated a convict in the United States. Since 1989, a drumbeat of wrongful convictions has generated headlines and captured the public imagination.1 In eighteen cases to date, DNA tests have played a role in preventing wrongful executions of innocent men on death row, and since the 1970s, over a hundred more death-row inmates have been exonerated by non-DNA evidence.2 Some of those cases have attracted real attention, but most have not.
What is so haunting about the known wrongful convictions is that those cases are the tip of the iceberg. Untold numbers of unnoticed errors may send the innocent to prison-and to the death chamber. That is why I rec- ommend to readers a trilogy of fascinating new books that peer deeper into this larger but murkier problem. Outside the rarified group of highly publi- cized exonerations, which have themselves done much to attract attention to the causes of wrongful convictions, errors may be so mundane that no one notices them unless an outsider plucks a case from darkness and holds it to the light.
That is what happened in the Carlos DeLuna case, which drew no atten- tion at the time and remained in near-total obscurity until Professor James Liebman3 and a team of five law students painstakingly dissected the case in their book Los Tocayos Carlos (the Carlos look-alikes). Their book was the product of an in-depth investigation of the case, from the first 911 call to the police through the execution and the evidence gathered since. They have also published the results online, including multimedia and images of key documents that they uncovered.4 The result is an exhaustive postmortem. Whether political theorist Hannah Arendt was right to call Adolf Eichmann a banal person caught up in a twisted Nazi culture that made evil seem normal-that is another question.5 But cases like DeLuna's show how en- trenched failures of our criminal justice system can make the individuals involved seem all too banal, even if some were by turns plodding, incompe- tent, misguided, or even malicious.
In Anatomy of Injustice: A Murder Case Gone Wrong, journalist Ray- mond Bonner6 presents a vivid account of tunnel vision gone wrong, but a case in which the system did eventually-if only partially-right itself. Bon- ner unravels the case against Edward Lee Elmore, a mentally retarded black man who was sentenced to death in South Carolina in 1982 (the year before DeLuna's trial in Texas). Once again, the outcome was not due to one "bad guy" but rather to a criminal justice system with practices and procedures that, predictably, create errors that are very difficult to correct.
While the Liebman team drills deeply into one case, Professor Dan Si- mon's book, In Doubt: The Psychology of the Criminal Justice Process,7 takes a panoramic, empirical view of the larger problem (Simon, p. …