Legal Features

Kansas v. Marsh

by Rachel King

On July 2, 2006, the United States reached a milestone with the 30th anniversary of Gregg v. Georgia, in which the Supreme Court reinstated the death penalty. On the eve of that anniversary, the Chicago Tribune published a three-part series documenting the case of Carlos DeLuna, who was executed in 1989 for the murder of Wanda Lopez. Lopez was stabbed to death while working at a gas station. Mr. DeLuna's case has received attention lately because strong evidence has come to light suggesting that he was innocent.

In the Chicago Tribune expose, journalists Maurice Possley and Steve Mills, who interviewed dozens of people and reviewed thousands of pages of court records, lay out a convincing case that Mr. DeLuna did not commit the murder, but that Carlos Hernandez did. The most convincing evidence is the fact that Hernandez himself told several people that he had killed Ms. Lopez and laughed when he explained how DeLuna had taken the blame for the killing. People who heard Hernandez brag about the killing were too afraid to come forward for fear that he would kill them, too.

Hernandez had a long history of violent crime: at 16, he was convicted of negligent homicide for slamming into another car at 100 mph while drunk and killing his sister's fiancé, who was a passenger in the car; next, he had a string of gas station robberies; he was then indicted for the murder of a woman who had been strangled and had an X carved into her back, however, the prosecutors never took the case to trial; and later he cut a woman from her navel to her sternum and told her that he was going to kill her "because he wasn't used to leaving live victims."

At his arrest, DeLuna told police that Hernandez had committed the Lopez murder, but they didn't believe him and did little to investigate his claim. In fact, the only evidence against DeLuna was the testimony of two eyewitnesses who had been shown DeLuna in a "show-up" identification procedure. This type of procedure is notoriously suggestive because the police show the witness only one suspect, which strongly encourages the witness to identify that person. No forensic evidence connected DeLuna to the crime.

DeLuna maintained his evidence until his execution when he told prison chaplain Carroll Pickett that he was innocent. The chaplain was deeply disturbed by DeLuna's execution, not only because of his concern that DeLuna might have been innocent, but also because it took over ten minutes for the lethal injection to kill DeLuna, and he was conscious for much longer than he should have been, suggesting that he may have experienced a painful death. This experience led Pickett to become an anti-death penalty activist.

The problem of innocence is the death penalty's dirty little secret. Over 120 people have been released from death rows during the last 30 years because they were innocent. Supporters of the death penalty point to this as evidence that "the system works." But that is not how the men and women who have had their lives destroyed feel about it. Ask Ray Krone, a former member of the Air Force who retired and went to work for the post office. He had never before been in trouble with the law when he was convicted for murdering a bartender on the basis of "bite mark" evidence, a shoddy form of forensic identification rate with an error rate of about 50%. Kirk Bloodsworth, a Navy man, was convicted of raping and killing a young girl based on the eyewitness identification of two girls. Both Krone and Bloodsworth were cleared, and DNA evidence identified the true killer. They were the "lucky" ones who lost careers, homes, possessions, reputations, family resources and years of their lives but at least did not suffer the same fate as DeLuna.

At the end of this Supreme Court term, just before the anniversary of Gregg v. Georgia, the Supreme Court issued a ruling in another death penalty case: Kansas v. Marsh. In that case, the Court reversed the Kansas Supreme Court, which had struck down the state's death penalty statute as unconstitutional. The statute required that when aggravating and mitigating factors were equally present in a case, the defendant would be sentenced to death. The Kansas high court had ruled that due process required that in a tie, the presumption should go to the defense, not the state, and the defendant should get life instead of a death. Like DeLuna, Marsh also claimed to be innocent. The dissent in Marsh argued that a statute which presumed imposition of the death penalty risked a wrongful execution.

In writing for the 5-4 majority, Justice Thomas disagreed with this assessment. He rightly observed that the legal issue dealt with sentencing, not questions of guilt or innocence. Justice Thomas wrote that the fact that the criminal justice system does not operate perfectly does not mean that the death penalty is constitutionally barred. Justice Scalia has made similar remarks about the death penalty, noting that because the system is imperfect, innocent people will inevitably be executed.

These comments are both reassuring and troubling. Reassuring, because it is good that Justices Thomas and Scalia are willing to speak the truth--if there is a death penalty, there will be mistakes. As a society, we should admit this fact, no matter how repellent we may find it to be. What is disturbing is that both Thomas and Scalia are willing to accept this risk as the cost of doing business. Who do the Justices believe to be so expendable that we can risk the state killing them in error in order to continue using the death penalty? Evidently, it is someone like Carlos DeLuna who grew up poor in Corpus Christi, Texas, sniffing glue and dropping out of school in the 7th grade. One has wonder: Would the Justices would be quite so willing to risk executing innocent people if they were the ones likely to be killed?

Rachel King is a Professor of Law at Howard University School of Law in Washington, D.C.