'The Phantom' leaves little doubt that Texas executed an innocent man

June 24 (Reuters) - Since 2006, the possibility that Texas officials executed an innocent man and left a serial killer on the loose has looked increasingly certain through a series of headlines, at least one book, and an entire issue of Columbia Law School’s Human Rights Law Review.

An upcoming documentary called "The Phantom" is now revealing new details about the case that removes almost any doubt that Carlos DeLuna was unjustly put to death by the state in 1989.

DeLuna, a young Latino man who was 20 years old at the time, was convicted of killing Wanda Lopez, a gas-station employee and single mother, in 1983 in Corpus Christi. His is the first case listed in the Death Penalty Information Center’s “Executed But Possibly Innocent” report, a list of executions that involved strong evidence of innocence. Roughly 60% of the 185 people who have been exonerated of death sentences since 1973 are either Black or Latino, according to the center.

Evidence in DeLuna’s case pointed to another Carlos – last name Hernandez – who had a record of crimes similar to the fatal stabbing DeLuna was executed for. Police and prosecutors convicted “the wrong Carlos” (also the title of a 2014 book by Columbia Law professor James Liebman) based on a “single, nighttime, cross-ethnic eyewitness identification, and no corroborating forensics,” according to the filmmakers.

The Phantom’s release will coincide with the 45th anniversary of a 1976 U.S. Supreme Court ruling that reinstated the death penalty in America, and a petition by the Innocence Project and other groups to urge President Joe Biden to commute the federal death row. (Attorney General Merrick Garland said on Tuesday that he will soon issue a statement on death penalty policies, but hasn’t provided a timeline.)

The documentary, made by filmmaker Patrick Forbes, opens in theaters nationwide on July 2.

Forbes told me he didn’t set out to prompt a change in people’s attitudes toward capital punishment. Support for the death penalty, and actual executions, has been on the decline in the U.S. for decades, with the exception of the Trump administration’s aggressive push last year to carry out a historically unprecedented number of executions.

“I set out to do the film because it seemed like an extraordinary story,” Forbes said. “Then you read about it and realize this case has significance far beyond the boundaries of Corpus Christi.” He added, “It could challenge the notion that there should be a death penalty.”

There’s no real way to tell how many of the roughly 1,533 people executed since 1976 may have been innocent. But it’s broadly accepted by now that the judicial review provided in death-penalty cases has been "inadequate to prevent the execution of at least some prisoners who were wrongly executed,” according to the Death Penalty Information Center.

The police manhunt in DeLuna’s case involved another person matching Hernandez’s description, according to the film. But that evidence wasn’t introduced at trial, nor shared with defense attorneys. Instead, prosecutors argued that the other suspect was a “phantom,” even though one prosecutor, Ken Botary, knew of Hernandez and knew that he had a propensity for serious violence.

Botary did not respond to a request for comment.

Steve Schiwetz, the lead prosecutor in DeLuna’s case, told me he hadn’t yet seen the film, although he appears in it.

I asked how Schiwetz feels about the execution now, some 32 years after DeLuna's execution. “I’d like to have the opportunity to cross-examine Carlos Hernandez,” Schiwetz replied.

Hernandez died in prison in 1999.

Schiwetz said that “the argument that anything in this case was done in bad faith is nonsense.” He paraphrased philosopher Immanuel Kant – a line he also uses in the film that’s somewhat cryptic, and somewhat edifying.

“If you want to argue that something happened inadvertently, well, ‘the crooked timber of humanity, out of which nothing straight can be made,’” the former prosecutor said.

Years after DeLuna's execution, the Chicago Tribune found at least five people in Corpus Christi who had heard Hernandez confess to Lopez’s murder and another 1979 killing for which Hernandez was indicted but never tried, according to a Tribune article in June 2006. The lone eyewitness also told reporters (and Forbes, too) he was no longer sure about his identification.

The film features interviews with a new eyewitness who saw a second suspect running from police, and other additional and more damning evidence. Notably, the prosecutors, Schiwetz and Botary contradict each others' accounts of how and why the 'phantom' narrative came about.

Schiwetz told me that Botary's role in the prosecution was minimal. "Botary never told me about anybody named Carlos Hernandez," he said.

I asked Columbia Law's Jim Liebman whether he thinks police or prosecutors intentionally created the 'phantom' narrative, despite what they knew about the other suspect.

“What’s most important about this case is there was one problem after another – incompetence piled on top of incompetence, and people just failing to do their jobs,” Liebman said. “However, there are [wrongful convictions] where there is intentionality, and I think this case has both. Police and prosecutors knew Carlos Hernandez well, so the fact they told the jury ‘this man is a phantom’ is hard to understand without seeing some intentionality there.”

Schiwetz’s Kantian observation is correct – human processes, like people, are flawed and subject to error. That said, advocates and those close to Wanda Lopez and DeLuna are hardly demanding perfection. Such a stark illustration of the grave mistakes and plain carelessness that sometimes underlie executions could do much to change some Americans’ minds.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com