Report: Texas Executed Wrong Man for '83 Murder

May 15, 2012 Updated May 15, 2012 at 4:09 PM PDT

At 24, Wanda Lopez was savvy to the pitfalls of her crime-infested Corpus Christi neighborhood. A divorced high school dropout with a child to support, she knew well the perils of her solo night job at a nearby gas station. When a customer warned that a man with a knife lurked outside the store, she immediately telephoned police.

What happened next that February night in 1983 - a robbery, frenzied struggle and fatal stabbing - continues to resonate with questions about how well police, prosecutors and defense lawyers performed their jobs.

On Tuesday, the Columbia Human Rights Law Review will devote its spring issue to a 400-page article asserting that the state convicted the wrong man, bypassing a potential suspect who had bragged of killing Lopez.

The critique is the latest in which death penalty opponents seek to prove that Texas, with 482 executions since 1982, killed an innocent man.

Steve Schiwetz, who served as lead prosecutor at the executed man's trial, has not read the journal article, but he disputed the authors' conclusions as related by a reporter.

"These guys are crusaders," he said. "What can I say?"

The journal article presents the stories of two men named "Carlos." More than a given name, Carlos DeLuna and Carlos Hernandez shared darkly handsome looks and a history of substance abuse and violence against women.

DeLuna, 27, executed for Lopez's murder in December 1989, was "childlike" and a "follower," acquaintances told researchers. His rap sheet included convictions for auto theft and attempted rape.

When police found him beneath a truck a short distance from the robbed gas station, DeLuna protested that he had not committed the crime.

Hernandez reveled in his reputation as a thug, flaunting a buck knife and boasting of his exploits. He claimed to have strangled a young woman, knifing an X on her back as her child slept nearby. He was charged but never convicted of the crime. He spent time in prison for a string of convenience store robberies and for slicing a female friend's belly from sternum to navel.

Along the way, he bragged of killing Lopez and laughed about DeLuna taking the fall. In 1996, Hernandez's parole was revoked after he attacked a woman with a knife. He died in prison three years later at 45.

The journal article, "Los Tocayos Carlos: Anatomy of a Wrongful Execution," grew out of a 2003 student project to examine Texas capital cases in which a single eyewitness account was key to conviction.

"This case changed my whole view," said Columbia Law professor and project sponsor James Liebman. "I had thought the problem cases were ones where you have an out-of-town defendant, a scary person who commits a really bad crime that grabs the whole community. The police are under so much pressure to find someone that something goes wrong. Now, I think the worst cases are those that likely happen every day in which no one cares that much about the defendant or the victim."

Schiwetz, who now works as a private lawyer in Corpus Christi, dismissed DeLuna's original court defense and has rebuttals for several of the assertions the authors make in the journal article. For one, he said, DeLuna confessed his guilt to a sheriff's deputy, a claim the researchers dispute.

Efforts to reach members of DeLuna's family, including a sister who lives in Houston, were unsuccessful.

Lopez, the mother of a 5-year-old girl, had little more than two hours work left the night of Feb. 4, 1983, when a man approached to buy cigarettes. Minutes earlier, a customer had warned that the man had been idling outside the store with a knife.

Lopez was on the phone with a 911 operator when the man pulled the weapon and demanded cash. In the taped emergency call, Lopez is heard trying to comply. Then comes the sound of a scuffle, a woman's scream and the clunk of the receiver into its cradle.

The journal cites purported irregularities in the investigation that followed.

The police manhunt started with wildly divergent descriptions of the robber. A gas station customer reported seeing a shabby, unshaven man with a mustache; a couple a short distance away said they saw a neatly groomed man in white shirt and dress pants.

Hernandez typically sported a mustache and dressed sloppily. On the night of the robbery, the clean-shaven DeLuna had worn a white shirt.

When DeLuna was returned to the store in the back of a police cruiser, all witnesses identified him as the culprit. The only witness who saw Lopez struggling with the robber later told law journal authors he was only 70 percent sure of his identification. If police had not told him DeLuna had been corralled nearby, he would have been only 50 percent certain.

Although Lopez bled profusely - the killer's knife sliced an artery - DeLuna's body and clothing bore no trace of blood, the article asserts.

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