-
p. 170 "Blackmun was…Sauceda murder case."Def.'s First Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 14 ("[By Judge Moore, addressing Hector De Peña] February the 7th, according to this, was your appointment date."); Hector De Peña's Application for Payment of Statutory Fee and Order Granting Application, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Aug. 24, 1983) at 1, at 181 ("On February 7, 1983, this Court appointed the undersigned attorney to represent Carlos De Luna, an indigent."); Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:01:03 ("I was appointed by the Honorable Jack Blackmun, who was then the Presiding Judge of the District Court where this case was tried, as co-counsel with an attorney by the name of James Lawrence.").p. 170 "As is true for police dectectives and prosecutors…"See supra Chapter 4, notes 9–12 and accompanying text.p. 170 "And murder cases…noteworthy of all."Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21 ("In those days, it was an honor to be [appointed as] an attorney in a capital murder case. If you were an attorney in a capital murder case, that means at least that judge thinks you are, not only competent, but you are of the echelon that you can be trusted to do it.").p. 170 "This is especially…911 tape."The observations here are common lore among attorneys on both sides of criminal cases and are consistent with the senior author's experience as a lawyer in and observer of criminal trials and appeals. For studies documenting the impact of sympathetic traits of the victim, including traits that are not material to the issues presented by the case, on prosecutors' charging decisions and jury verdicts, see, e.g., Irwin A. Horowitz, et al., Chaos in the Courtroom Reconsidered: Emotional Bias and Juror Nullification, 30 Law & Hum. Behav. 163 (2006) (documenting the powerful effect on mock-juror verdicts of victim traits, including ones unrelated to the offense charged); Narina Nuñez, et al., The Testimony of Elderly Victim/Witnesses and Their Impact on Juror Decisions: The Importance of Examining Multiple Stereotypes, 23 Law & Hum. Behav. 420 (1999) (similar); Elizabeth Anne Stanko, The Impact of Victim Assessment on Prosecutors' Screening Decisions: The Case of the New York County District Attorney's Office, 16 Law & Soc. Rev. 238 (1981) (describing the impact on prosecutorial charging decisions of assessments of whether jurors will find the victim's physical and social characteristics to be sympathetic, as well as on assessments of the credibility of the victim); see also supra Chapter 1, notes 59–72 and accompanying; infra Chapter 13, notes 13–15, 29–30, 154–159, 296–301 and accompanying text; infra Chapter 13, notes 154-161 and accompanying text (describing and quoting Wanda Lopez's audio-taped 911 call to the police and the impact of the call at Carlos DeLuna's trial).p. 170 "When he decided…exactly who did."p. 170–171 "With the defendant's…on television…"Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59 ("[I]f it's capital murder [it is understood] that that attorney is going to be under pressure, that there's going to be press, that there's going to be—that you have to handle a myriad of things.").p. 171 "…anything short…district attorney's office."See, e.g., James S. Liebman, The Overproduction of Death, 100 Colum. L. Rev. 2030, 2079–81 & n.140, 2097–98 (2000) (describing the intense pressure prosecutors experience when investigating, making charging decisions in and prosecuting capital murder cases given the visibility of such cases, the sense of urgency to solve them, and the political gains to be had from taking a tough stand in capital cases, and also describing the sharp, occasionally unscrupulous, practices that such pressures can create).p. 171 "Prosecutors fight capital cases hard…"See supra note 7.p. 171 "…using every weapon…witnesses and leads."See James S. Liebman, The Overproduction of Death, 100 Colum. L. Rev. 2030, 2082–94 (2000) (outlining variety of police investigative methods and resources available to the prosecution that can be brought to bear against a defendant in capital cases).p. 171 "Every move…and the press."Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59:
Let's be honest, most capital murder cases are overturned because of incompetence of counsel. It [appointment by a judge to represent a capital client] means that the judge thinks you've got enough brains to at least get it through, and at least make sure that basic rights are protected. It doesn't mean that other attorneys aren't competent, it means that, you know, if it's capital murder that that attorney is going to be under pressure, that there's going to be press, that there's going to be—that you have to handle a myriad of things.
See Andrew Gelman et al., A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. Empirical Legal Stud. 209, 252–54 (2004) (examining all court decisions reversing capital verdicts in the United States between 1973 and 1995 and finding that ineffective assistance of counsel was by far the most common reason for overturning a capital verdict at the state post-conviction (second) and federal habeas corpus (third) stages of review, followed by prosecutors' failure to provide the defendant with exculpatory evidence in the state's possession; incompetent lawyering accounted for about one-third of all reversals at those two stages of review).p. 171 "In Corpus Christi…rock-bottom rates."Def.'s Mot. for Investigative and Expert Assistance in Indigent Case, Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. Undated); Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:39:15 ("We were able to persuade the court to allow us an allowance of 500 dollars for the investigation."); see Important Info upon JSL’s Brief Perusal of Recently Obtained Nueces County District Court Records in CDL’s 2/4/83 Murder Case (internal memo) (July 27, 2004) at 2 (indicating that $500 was the maximum fee available for court-appointed defense investigators).p. 171 "But in a capital…life in prison."See, e.g., Jurek v. Texas, 428 U.S. 262, 267 (1976) (upholding the constitutionality of a Texas death penalty procedure in which the same jury separately determined culpability and punishment, and where the penalty phase allowed for the presentation of mitigating as well as aggravating evidence); Gregg v. Georgia, 428 U.S. 153, 163 (1976) (upholding a similar procedure in Georgia).p. 171 "At that trial…especially bad."See, e.g., Zant v. Stephens, 462 U.S. 862, 893–94 (1983).p. 171 "Then the defendent…what happened."See, e.g., Lockett v. Ohio, 438 U.S. 568, 604 (1978).p. 171 "Courts had started…De Luna was arrested…"See, e.g., Jurek v. Texas, 428 U.S. at 270; Gregg v. Georgia, 428 U.S. 153, 179–80.p. 171 "Texas had carried…months before."Death Penalty Information Center, Charlie Brooks, http://www.deathpenaltyinfo.org/charlie-brooks (last visited Mar. 6, 2012) (describing the State of Texas' execution of Charles Brooks on December 7, 1982, the State's first execution under its modern death-sentencing procedures and the first execution under legal authority ever carried out by lethal injection). Archived at: http://perma.cc/S82Z-YLRGp. 171 "Making things…concept in 1983."See, e.g., Gary Goodpaster, Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 328–34 (1983) (describing the importance and difficulty, even for experienced lawyers, of adapting strategies and styles to the demands of bifurcated guilt-innocence and capital-sentencing procedures and encouraging lawyers to consider ways to unify their strategies at two stages, where the outcomes sought and reasons for them—for example, "acquit me because I am innocent" versus "lessen my punishment because I have good excuses for committing the crime"—will often be confusing and appear contradictory to the jury).p. 171 "Most capital murder…to draw on."Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59:Let's be honest, most capital murder cases are overturned because of incompetence of counsel. It [appointment by a judge to represent a capital client] means that the judge thinks you've got enough brains to at least get it through, and at least make sure that basic rights are protected. It doesn't mean that other attorneys aren't competent, it means that, you know, if it's capital murder that that attorney is going to be under pressure, that there's going to be press, that there's going to be—that you have to handle a myriad of things.
See Andrew Gelman et al., A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. Empirical Legal Stud. 209, 252–54 (2004).p. 171–172 "It was understood…'myriad of things.'"Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59:Let's be honest, most capital murder cases are overturned because of incompetence of counsel. It [appointment by a judge to represent a capital client] means that the judge thinks you've got enough brains to at least get it through, and at least make sure that basic rights are protected. It doesn't mean that other attorneys aren't competent, it means that, you know, if it's capital murder that that attorney is going to be under pressure, that there's going to be press, that there's going to be—that you have to handle a myriad of things.
p. 172 "That's why…difficulties you faced."See supra note 19.p. 172 "'In those day…capital murder case'…"Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21–07:16:59 ("In those days, it was an honor to be [appointed as] an attorney in a capital murder case. If you were an attorney in a capital murder case, that means at least that judge thinks you are, not only competent, but you are of the echelon that you can be trusted to do it.").p. 172 "…Kelly explanined…highest echelon."Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21–07:16:59, 07:17:24 ("[I]f you've been named to do capital murder, you think you're, you know at least one judge thinks you're good. Probably more.").p. 172 "When Judge Blackmun…Carlos DeLuna…"See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:01:03 ("I was appointed by the Honorable Jack Blackmun, who was then the Presiding Judge of the District Court where this case was tried, as co-counsel with an attorney by the name of James Lawrence.").p. 172 "…the criminal defense lawyers…resentful."Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:13:01–07:17:24:Q. Do you remember any discussion around the courthouse about the situation with Carlos DeLuna's representation at the beginning of that case, and what that discussion was? . . . . A. Well, the person that was appointed was a competent attorney. Not a real criminal attorney. He was in general practice. He was the son of a judge. He was having some difficulty making ends meet. But, you know, hey, we all do in private practice. But the kind of, what I . . . intimated was that Hector [De Peña] needed some help [financially] and they appointed him to the case. We all kind of went [makes skeptical eye-rolling motion], you know. . . . You have to understand, in those days, . . . it was an honor to be [appointed as] an attorney in a capital murder case. If you were an attorney in a capital murder case, that means at least that judge thinks you are, not only competent, but you are of the echelon that you can be trusted to do it. Let's be honest, most capital murder cases are overturned because of incompetence of counsel. It [being appointed to represent a capital defendant] means that the judge thinks you've got enough brains to at least get through it, and at least make sure that basic rights are protected. It doesn't mean that other attorneys aren't competent, it means that, you know, if it's capital murder that that attorney is going to be under pressure, that there's going to be press, that there's going to be—that you have to handle a myriad of things. Hector was not a bad lawyer at all. He later became a very good judge. But none of us thought that Hector was of that caliber as a criminal attorney. Good judge later, but [shakes head] no.
Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:17:24 ("There's always a little . . . resentment [by other lawyers about De Peña's appointment to represent DeLuna], because if you've been named to do capital murder, you think you're, you know at least one judge thinks you're good. Probably more. And if someone that you don't think is at your level is appointed, it's kind of an affront, isn't it? It's pride."); James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1:He [De Peña] wasn't even on the (judges' mental) list of decent criminal defense lawyers to appoint to homicide or capital cases. His dad was a judge and maybe his dad let it be known that his son needed money. You could make 15–20,000 in a month on a capital case. That was a nice piece of change. When Hector was appointed to that case (DeLuna), we were all aware there were problems in the case . . . Hector was out of his league. Hector didn't make money as a lawyer. . . . We were shocked when Hector got appointed (to DeLuna). Only reason we could think of was that he needed the money. . . . Hector . . . was probably in financial trouble; he undoubtedly was in financial trouble. Hector . . . had no business doing a capital case . . . .
p. 172 "It wasn't just…assignment…"Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59, 07:17:24 ("Hector [De Peña] was not a bad lawyer at all. He later became a very good judge. But none of us thought that Hector was of that caliber as a criminal attorney [to be appointed to a capital case]. Good judge later, but [shakes head] no."; "There's always a little . . . . . . resentment [by other lawyers about De Peña's appointment to represent DeLuna], because if you've been named to do capital murder, you think you're, you know at least one judge thinks you're good. Probably more. And if someone that you don't think is at your level is appointed, it's kind of an affront, isn't it? It's pride."); James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1:He [De Peña] wasn't even on the (judges' mental) list of decent criminal defense lawyers to appoint to homicide or capital cases. His dad was a judge and maybe his dad let it be known that his son needed money. You could make 15–20,000 in a month on a capital case. That was a nice piece of change. When Hector was appointed to that case (DeLuna), we were all aware there were problems in the case . . . Hector was out of his league. Hector didn't make money as a lawyer. . . . We were shocked when Hector got appointed (to DeLuna). Only reason we could think of was that he needed the money.
p. 172 "…it was that…lawyer at all."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 11:59:06–12:00:00 (describing his law practice at the time he was appointed to represent Carlos DeLuna as "basically, private practice . . . as a general practitioner, both in state court and federal court"); see Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21 ("[T]he person that was appointed [to represent DeLuna] was . . . [n]ot a real criminal attorney. He was in general practice. He was the son of a judge. He was having some difficulty making ends meet. But, you know, hey, we all do in private practice.").p. 172 "He was a small-time general practitioner…"See supra note 26 and accompanying text.p. 172 "When he was assigned…capital murder charge."James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4 ("This was one of my first trials. My wife helped me."); see Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21 ("[T]he person that was appointed [to represent DeLuna] was . . . [n]ot a real criminal attorney. He was in general practice. He was the son of a judge. He was having some difficulty making ends meet. But, you know, hey, we all do in private practice."); Steve Mills & Maurice Possley, 'I Didn't Do It. But I Know Who Did,' Chi. Trib., June 25, 2006, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=5 ("After authorities charged De Luna with the slaying, the court appointed Corpus Christi attorney Hector De Pena Jr. to defend him. . . . [T] his was De Pena's first capital case . . ."). Archived at: http://perma.cc/3E57-JAZJp. 172 "As Jon Kelly…pretty good judge."Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59 ("He later became a very good judge."); see Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 11:59:06 ("And basically, private practice for about 14 years, as a general practitioner, both in state court and federal court. And I ran for a judicial seat once before . . . [and] I lost that one and then I ran again in 1986, and I took the bench in January of '87."); Transcribed Videotape Interview with Albert Peña, Lawyer for Jesse Garza in Dahlia Sauceda Case, in Corpus Christi, Texas (Feb. 25, 2005) at 18:25:07 (referring to "Hector de Peña Junior, who later became judge").p. 172 "Hector de Peña…case in 1983."James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 23, 2004) at 1 ("He [De Peña] wasn't even on the (judges' mental) list of decent criminal defense lawyers to appoint to homicide or capital cases. . . . Hector was out of his league. . . . We were shocked when Hector got appointed (to DeLuna)."); see Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59, 07:18:27 ("Hector was not a bad lawyer at all. He later became a very good judge. But none of us thought that Hector was of that caliber as a criminal attorney [to be appointed to a capital case]. Good judge later, but [shakes head] no."; "Q. Who was in that upper echelon [of lawyers qualified to handle a capital case] at that time? A. Oh, jeez—Probably about ten guys. [Names some lawyers] . . . There were a number. He was not amongst them. Q. And when you say 'he,' you mean—A. I mean Hector, Hector DePeña. He was a good judge, and a competent attorney. I'm not saying he was a turkey. But I don't know if Hector was up to a capital murder."); James S. Liebman & Bruce Whitman's Notes on Interview with Eddie Garza, Corpus Christi Police Detective (Aug. 25, 2004) at 1 ("Hector [De Peña] as attorney: not good, but fair. Same category as Jim Lawrence; hung around courthouse and got appointments. . . . His list of best '1st chair' appointments . . . [does] 'not [include] Hector dePena;' he wasn't on the list.").p. 172 "Other opinions…a capital case."James S. Liebman's Notes on Interview with Bill May, Corpus Christi Criminal Defense Lawyer and Former Assistant District Attorney, in Corpus Christi (July 13, 2004) at 1 (opining that De Peña was "totally incompetent" to handle a capital case at the time).p. 172 "He was out of his league."James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1 ("Hector was out of his league" in the DeLuna case. . . . We were shocked when Hector got appointed (to DeLuna) . . . . Hector . . . had no business doing a capital case . . . ."); Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59, 07:17:24 ("[N]one of us thought that Hector was of that caliber as a criminal attorney [to be appointed to a capital case]."; describing De Peña as not at the level of the top criminal defense lawyers in Corpus); Peso Chavez & James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 1 ("Hector de Peña was not a good lawyer [to handle the DeLuna case].").p. 172 "He may not have been 'up to a capital murder [case.]'"Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 17:18:57 ("Hector DePeña. He was a good judge, and a competent attorney. I'm not saying he was a turkey. But I don't know if Hector was up to a capital murder.").p. 172 "Lawyers in town…short on cash."Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21 ("He was in general practice. He was the son of a judge. He was having some difficulty making ends meet. But, you know, hey, we all do in private practice."); Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:17:24–07:18:27:Q. Was there an explanation discussed about how he [Hector De Peña] might have come to be appointed to that case at that time though he was not in that upper echelon [of criminal defense lawyers qualified for a capital case]. A. He might have needed the money. His dad was a judge, a sitting judge at that point. He might have needed the money. Hector had been having a hard time. . . . It was just strange. There's always a little—In those days, not later, but in those days, a little resentment, because if you've been named to do capital murder, you think you're, you know at least one judge thinks you're good. Probably more. And if someone that you don't think is at your level is appointed, it's kind of an affront, isn't it?
James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1 ("His dad was a judge and maybe his dad let it be known that his son needed money. You could make 15–20,000 in a month on a capital case. That was a nice piece of change. . . . Hector didn't make money as a lawyer. . . . He was probably in financial trouble; he undoubtedly was in financial trouble [at the time he was appointed in DeLuna's case]. Hector . . . had no business doing a capital case . . . .").p. 172 "'That was a nice piece of change.'"James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1 ("You could make 15–20,000 in a month on a capital case. That was a nice piece of change. . . . Hector didn't make money as a lawyer. . . . We were shocked when Hector got appointed (to DeLuna). Only reason we could think of was that he needed the money."); see Hector De Peña's Application for Payment of Statutory Fee and Order Granting Application, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Aug. 24, 1983) at 2 (granting a fee of $4,500 for 105 hours of representation in the DeLuna case); James R. Lawrence's Application for Payment of Statutory Fee and Order Granting Application, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 26, 1983) at 2 (granting a fee of $5,000 for 310 hours of representation of DeLuna).p. 173 "His papers said…1982 Saab."See Summary of Debts and Property, In re Hector De Pena, Voluntary Case: Debtor's Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984).p. 173 "De Peña opened his law office in 1978."See Statement of Financial Affairs for Debtor Engaged in Business, In re Hector De Pena, Voluntary Case: Debtor's Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984) at 1 (listing 1978 as the year he commenced his law firm).p. 173 "For a time…him into court."See Schedule A at 2–7, In re Hector De Pena, Voluntary Case: Debtor's Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984).p. 173 "Every cent…unpaid taxes."Statement of Financial Affairs for Debtor Engaged in Business, In re Hector De Pena, Voluntary Case: Debtor's Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984) at 1.p. 173 "Adding to his…refrigeration company."See Statement of Financial Affairs for Debtor Engaged in Business,In re Hector De Pena, Voluntary Case: Debtor's Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984) at 1; Pl.'s Original Petition, Martinez v. De Pena, No. 83–4893-E (Nueces Cty., 148th Dist. Tex. Oct. 14, 1983).p. 173 "De Peña himself…minor or major."James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4 ("This was one of my first trials. My wife helped me."); see Steve Mills & Maurice Possley, 'I Didn't Do It. But I Know Who Did,' Chi. Trib., June 25, 2006, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=5 ("After authorities charged De Luna with the slaying, the court appointed Corpus Christi attorney Hector De Pena Jr. to defend him. . . . [T] his was De Pena's first capital case . . ."). Archived at: http://perma.cc/M5SM-UBN5p. 173 "Because he was…to help out."See 15 Martindale-Hubbell Law Directory at TX77P (1994) (listing De Peña as a solo practioner).p. 173 "'My wife helped me,' he volunteered."James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4 ("This was one of my first trials. My wife helped me.").p. 173 "She was a 'motivator…on a big case.'"James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 6 ("My wife was . . . involved. She listened to the 911 tape with [Hector]; motivator to him on a big case.").p. 173 "She couldn't believe…in the trial."James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4, 6 ("My wife helped me. She couldn't understand how I could fight him [prosecutor Steven Schiwetz] on the case inside the court, then go have a cup of coffee with Schiwetz afterwards. She was very mad at him. [JSL asks why?] Because she knew CH [Carlos Hernandez] existed and couldn't believe Schiwetz would argue he didn't exist. For HDP [Hector De Peña], it was just doing a [prosecutor's] job. It wasn't . . . personal with Schiwetz."; "My wife was peeved. That prosecutors said CH was figment of CDL's imagination; the 'phantom' comment. She knew there was a real person."). See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:24:50–12:26:50:I had the occasion at the time we tried this case to have my wife in the audience while this case was being tried. And she had a real difficult time understanding that, as lawyers, when one is an advocate for your client, you know, you're an advocate wholeheartedly. And during the course of the trial there was a lot of . . . trying to make the other side look bad, so to speak, in the trial of the case. And at one point, as this matter was reaching a conclusion—I don't know if it was after the jury was out—Steve made an offer to have a cup of coffee or something, and my wife didn't understand how the relationship in court could suddenly change once you walked out the door. And, explaining to her, I said, "You're advocates for your client, but once you walk out of there you can still talk to each other and have a cup of coffee."
p. 173 "The prosecutors were…friends outside."See supra note 45 and accompanying text..p. 173 "When he was handling…'gentleman's agreement.'"James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 5 (describing his view of prosecutors as "evolving" from seeing them as "trying to find truth to 'putting notches in their belts'"; "Ends justify the means. Used to be you could call up the other side and get things done by handshake and gentlemen's agreement. Now, it's Rambo tactics.").p. 173 "Over time…they could get."See supra note 47.p. 173 "'Ends justify the means.'"See supra note 47.p. 174 "'There was Ken…second chair.'"Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:41:52–12:42:16 ("[T]here was two prosecutors. There was Ken Botary, who was more or less sort of the, the older, lead prosecutor, and then Mr. Schiwetz, who was his second chair. My opinion was that Mr. Botary was basically trying to make a name for himself, and Mr. Schiwetz was trying to see that justice was done.").p. 174 "'My opinion was…a conviction.'"See supra note 50.p. 174 "Schiwetz, De Peña…justice was done."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:41:52–12:42:16 ("Mr. Schiwetz was trying to see that justice was done."); James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 5 ("Steve Schiwetz was the more liberal of the two prosecutors; would help you out some. Ken Botary's view was 'you've got to win it yourself, I'm not going to help you.' Ken was hard to talk to. He was out to get a conviction. Steve was looking for justice; not to win a case."); see also James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2 (reporting that "Schiwetz [was] always honest with JL [James Lawrence]; one of few honest ADAs [Assistant District Attorneys]; you can count the honest ones on one hand").p. 174 "De Peña got…February 7."Tr. of Pretrial Hr'g, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 10, 1983) at 14 ("[by Judge Moore, addressing Hector De Peña] February the 7th, according to this, was your appointment date."); Hector De Peña's Application for Payment of Statutory Fee and Order Granting Application, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Aug. 24, 1983) at 1 ("On February 7, 1983, this Court appointed the undersigned attorney to represent Carlos De Luna, an indigent.").p. 174 "The trial was…later postponed…"See Letter from Hon. Walter Dunham, Jr., Judge, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Feb. 28, 1983) (scheduling arraignment on March 18, 1983, pretrial motions hearing on March 18, 1983 and trial to begin on March 28, 1983).p. 174 "He requested and examined police reports and evidence."See Mot. for Discovery and Inspection of Evidence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 25, 1983); Mot. to Produce Exculpatory and Mitigating Evidence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 25, 1983). Although both motions are dated February 25, 1983, a Friday, the court clerk's records indicate that the motions were not formally filed until Monday, February 28, 1983. See Texas v. DeLuna Docket, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 17, 1983) at 1; Letter from Jack Hunter, Acting District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Feb. 28, 1983) (noting that De Peña came to Hunter's office that day to review statements of witnesses to the events of the evening of February 4, 1983, and enclosing the autopsy report on Wanda Lopez and indictment of Carlos DeLuna, the originals of both of which De Peña also had reviewed in Hunter's office that day); Letter from Jack Hunter, Acting District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Mar. 4, 1983) (enclosing copies of Wanda Lopez's medical records on the night of the stabbing, latent fingerprints found at the crime scene, Carlos DeLuna's arrest and rap sheets, and the photographs used in photographic line-up shown to witnesses John and Julie Arsuaga, the originals of all of which De Peña had viewed in Hunter's office that day.). On March 16, 1983, De Peña was again summoned to the prosecutor's office to look at additional police records. See Letter from Jack Hunter, Acting District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Mar. 16, 1983) (enclosing witness statements of George Aguirre, Jesus Escochea, Jr., John Arsuaga, and Kevan Baker, which De Peña had viewed in Hunter's office that day.).p. 174 "He met with…March 1."Def.'s First Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 1 (stating, in motion signed by counsel, that between February 7, 1983 and June 10, 1983, De Peña visited DeLuna only once, on March 1, 1983); see Tr. of Pretrial Hr'g at 14, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 10, 1983) at 14–15, 18:Q. [By Judge Wallace C. Moore] Now, is it correct that you have not been by to see [DeLuna] since March 1st, 1983? A. [By De Peña] I saw the Defendant, I think probably the record would bear out through the card, where I think I visited with him twice during the initial period of my appointment. Q. Well, when would that be? A. [By De Peña] I don't have the exact date. A. [By Judge Moore] February the 7th, according to this, was your appointment date. Q. [By prosecutor Schiwetz] You visited with him twice right after you were appointed? A. Right Q. [By Judge Wallace C. Moore] Is it correct when the Defendant asserts that you didn't visit him between March the 1st and the present time?" A. [By De Peña] That is correct.
p. 174–175 "From the police…with a knife…"See George Aguirre, Witness to Events Outside Shamrock Gas Station, Statement to Corpus Christi Police Dep't (Feb. 24, 1983) (stating that, after police took him over to the squad car, "I did positively identify that man as the same one I seen just a short while before . . . having a knife; however now he did not have a shirt on.").p. 175 "…Kevan Baker had…the store."See Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep't (Feb. 4, 1983) (stating that "I positively identified him as same the man I seen [sic] fighting with the lady inside the Shamrock").p. 175 "He also knew…pick-up truck."See supra Chapter 2, notes 249–257.p. 175 "From DeLuna…arresting officer…"Mark Schauer, Corpus Christi Police Officer, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 109–14 (noting that shortly after being arrested, DeLuna "repeatedly asked to speak to—to talk to a sergeant. He kept saying, 'Hey, man, you take care of me and I'll take care of you.' He kept saying that quite often. And at least one time he said, 'I didn't do it, but I know who did do it. I know who did do it.' . . . Kept saying those things over and over.").p. 175 "…later had repeated to his family…"Blas Avalos, Stepfather of Carlos DeLuna, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 408 (describing Carlos DeLuna's conversation with his parents the night of his arrest, in which he told them, "that he was being accused of a thing he had not done."); Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna, in Garland, Texas (Feb. 27, 2005) at 00:23:17–00:23:52 (Carlos "was always saying he didn't do it. That they were going to execute him. That's all he would say, he said that he didn't do it."); Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:32:36–20:33:28:He [Carlos] told me he didn't do it. I asked him, "Carlos, did you do this?" I asked him when he was in Death Row. I asked him, "Did you do this?" He said, "No, I didn't do it. If you would just go to Corpus, this is where this guy lives. His name is Carlos Hernandez. He committed the crime." Manuel, my older brother, knows this Carlos Hernandez. I kept saying that over and over to the attorney [representing Carlos DeLuna], I kept saying that over and over, and they were saying that that was a lie, there was no Carlos Hernandez, that they hired private investigators. There was no Carlos Hernandez, it was a made-up name, there's no such thing.
Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:48:24–20:49:41 ("At the end, Carlos . . . said, 'Whatever happens, happens. But I did not commit this crime. I want you to know that.' I told him, 'Oh, I know that.' I just did not know how to help him. I didn't know. I didn't know what to do."); infra Chapter 5, note 101 and accompanying text; infra Chapter 15, notes 82–86, 184 and accompanying text; infra Chapter 16, notes 162–167 and accompanying text.p. 175 "…and girlfriend…"Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:41:58 ("When I asked him if he did kill—I asked Carlos DeLuna if he did kill the girl, and . . . he said no."); Peso Chavez's Notes on Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row (Aug. 18, 2004) at 102:Between the letter writing [Carlos DeLuna and Rosie Esquivel exchanged hundreds of letters] and several personal visits Ms. Esquivel was of the opinion that Carlos DeLuna did not kill the person he was convicted of [killing]. She bas[e]s her opinion on a number of factors including statements Carlos made to her. She stated, 'Carlos never liked talking about what had happened—he would rather look to the future. But he told me on numerous occasions that he did not kill the women and that it was another Carlos—I think Hernandez. He said he was not involved in anyway. When he told me this I believed him—it was the way he looked at me when he told me. He sounded sincere and truthful. The only other thing he told me was that he ran when he saw the cops and that they found him hiding under a car.
p. 175 "…the prosecutors…"See infra notes 77–78 and accompanying text.p. 175 "…the jury…"See infra Chapter 13, notes 218–220 and accompanying text.p. 175 "…news reporters…"See Karen Boudrie, Report(NewsWatch 10 broadcast) (interviewing Carlos DeLuna on Death Row: "[by DeLuna] I was standing there when somebody else did what they did, you know. But I won't name no names. I already named names, and the court. . . . And the case is due to appear and I won't name names no more."); Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times, Oct. 14, 1986, at B1 ("DeLuna, now 24, maintains he is innocent . . . . In a Caller interview, DeLuna said he was arrested because he was in the area and authorities needed a suspect. DeLuna claimed he was across the street and saw the killing, but walked away without reporting what he saw. 'I knew since I had been convicted before in Dallas County they would pin this one on me,' DeLuna said."); Full Court Denies Stay of Execution: DeLuna Scheduled to Die, UPI, Oct. 10, 1986 ("DeLuna [in an interview with the reporter] denies that he killed the woman saying another man wielded the knife. But investigators have been unable to find the man DeLuna says was responsible."); Frank Klimko, State Appeals Court Refuses to Block Texan's Execution, Hous. Chron., Oct. 14, 1986, at 14 ("DeLuna claims another person killed Lopez and that he was not in the service station at the time of the crime."); Linda Carrico, Death Row Inmate Misses Appointment with Death, Corpus Christi Caller-Times, Oct. 15, 1986 (on file with author) (reporting that DeLuna "received word of his stay [of execution] while visiting with family members, prison officials said. DeLuna continues to maintain his innocence. Since his trial, DeLuna has claimed he saw another man kill the store clerk."); David Teece, Judge Lifts Stay of Execution for DeLuna, Corpus Christi Caller-Times, July 20, 1988 ("DeLuna has continued to maintain that he is innocent in Lopez's murder, claiming the assailant was actually a friend of his named Carlos Hernandez."); Cindy Tumiel, Convicted Killer Executed After Courts Reject Appeals, Corpus Christi Caller-Times, Dec. 7, 1989, at B1 ("DeLuna continued to maintain his innocence, claiming that the murder was committed by a friend named Carlos Hernandez."); Kathy Fair, DeLuna Waits for Execution in '83 Murder, Hous. Chron., Dec. 7, 1989, at 36A (reporting that DeLuna claimed "someone else robbed and murdered Lopez."); see also Texas Dep't of Criminal Justice, Crime Summary for Carlos DeLuna (July 26, 1983) at 2 (reporting that "DeLuna contended that another person killed and that he ran so he would not be implicated."); Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas-Forth Worth (Feb. 28, 2005) at 03:37:42 ("When I heard that Carlos Hernandez might actually have committed this crime, that he might have told people, that this story might have been true, I was just floored. Absolutely floored that Carlos had been saying this [same thing] all along and nobody really believed him."); James S. Liebman's Notes on Interview with Linda Carrico, Reporter for Corpus Christi Caller-Times (Sept. 2004) at 1 (describing what Carlos DeLuna told her when she interviewed him on death row: "He told me it was strictly a case of mistaken identity. He said: 'He [the actual killer] looked like me, same height and weight.'"); see infra Chapter 15, notes 20–21, 28, 122–125, 312–318, 325–327.p. 175 "…a prison pastor…"See infra Chapter 16, notes 181–192 and accompanying text.p. 175 "He had not killed Wanda Lopez."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:08:54–12:14:43 ("Q. Did Carlos DeLuna ever indicate to you that he was inside that store, had anything to do with the killing of that woman? A. No, the closest he put himself was that he was . . . at one of these . . . topless bars places waiting for Carlos [Hernandez] to go across the street to the Shamrock and buy some cigarettes or something. Q. So, as far as he told you, he had nothing to do with any part of any criminal event? A. Correct. . . . He was adamant that he was not guilty and he wanted his day in court. . . . He was adamant that he was not involved in the girl's killing. . . . [H]e put himself across the street [at Wolfy's], but that was the closest he . . . put himself [to the crime]."); see also James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 2 ("To this day, I can't tell you if he [Carlos DeLuna] did it [killed the victim]; my opinion is that his friend killed her.").p. 175 "At first DeLuna…the clerk."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:01:48–12:03:00 ("[W]hen we first discussed this with [De Luna] he had indicated that he was not anywhere near the premises [where the crime occurred], that he had been at a bowling alley with a girl.").p. 175 "He'd seen…someone he knew."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:14:43–12:18:00:Q. When we spoke last time, you told me, as I got it down in my notes, and let's see if I got it correct, "To this day, I can't tell you if he, Carlos DeLuna, killed the victim. My opinion is that his friend killed her." Is that a fair— A. That is a fair statement. Q. . . . I also took down these notes on something we just went over, you said, at least as I got it, "Carlos DeLuna was very definitely scared of Carlos Hernandez. He said, 'I'm dead whether I'm out or in if I identify him,' meaning"— A. Carlos Hernandez. Q. Carlos Hernandez. "I pleaded with Carlos DeLuna to give me something to go on. He said he knew but he wouldn't give us the name. I prevailed upon him to give us the name but nothing else." Is that, did I get that correct? A. Yes, that's correct . . . . I was always of the opinion that I did not believe that Carlos DeLuna actually murdered this lady. That was the reason I felt very much of an advocate on his behalf when we tried the case. But I, based on my piecing of the evidence together, that's why I felt that this Carlos Hernandez was the one that ultimately killed the girl. And, in working with this young man, for the period of time that we worked with him, I just didn't feel like he was—You know, he may have been capable of doing stuff like stealing cars—and possibly, you know, scaring old women, as it turned out in the trial—but I just didn't think he was, I didn't feel he was capable of killing someone. That's my subjective feeling, not necessarily an objective finding.
Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:42:40–12:44:15 ("As I said, it was a very difficult case to put a defense together simply because our client never would come across with a full disclosure when we first started out. I think, of course, a lot of it had to do with his fear of Carlos Hernandez in the case.").p. 175 "'I'm dead'…told his lawyer."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:08:54–12:10:13, 12:14:43–12:18:00 ("I think he was, in all honesty, I believe he was truthfully afraid of this individual [Carlos Hernandez], or of whatever ability he felt this individual may have had in influencing his future, so to speak. He [Carlos DeLuna] said, 'I'm dead whether I'm out or in if I identify him.'"); James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4 ("CDL [Carlos DeLuna] was 'very definitely scared of Carlos Hernandez.' He said, 'I'm dead whether I'm out or in if I identify him.' HDP [Hector De Peña] says, 'I pleaded with CDL to give me something to go on. He said he knew, but he wouldn't give us the name.'").p. 175 "'He felt…revealed a name.'"Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:06:40–12:07:55, 12:08:54–12:10:13; see also James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 1–2, 4 ("To this day, I can't tell you if he [CDL] did it [killed the victim]; my opinion is that his friend killed her. . . . [Carlos DeLuna] Said, if he gave the name, 'I'd be as dead on the street' as he would be if he didn't give the name and got executed."; "CDL [Carlos DeLuna] was 'very definitely scared of Carlos Hernandez.' He said, 'I'm dead whether I'm out or in if I identify him.' HDP [Hector De Peña] says, 'I pleaded with CDL to give me something to go on. He said he knew, but he wouldn't give us the name.'").p. 175 "No matter how…a name."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:06:40–12:07:55, 12:14:43–12:18:00, 12:19:07–12:19:12 (noting that DeLuna "would not reveal the name, basically indicating to us, ultimately, that if he did reveal it he wouldn't be safe either outside the penitentiary or in the penitentiary. Basically, whatever influence or whatever he knew about this individual, apparently he felt this individual had enough ability to see that he was silenced either outside prison or within prison if he talked or revealed his name."; "I pleaded with Carlos DeLuna to give me something to go on. He said he knew but he wouldn't give us the name."; "Q. [W]ould you tell me why you felt that he took that position? A. Basically, because he felt that he was dead, in or out, if he put the bite on Mr. Hernandez."); James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4 ("CDL [Carlos DeLuna] was 'very definitely scared of Carlos Hernandez.' He said, 'I'm dead whether I'm out or in if I identify him.' HDP [Hector De Peña] says, 'I pleaded with CDL to give me something to go on. He said he knew, but he wouldn't give us the name.'").p. 175 "De Peña came away convinced but stumped."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:42:40–12:44:15 ("As I said, it was a very difficult case to put a defense together simply because our client never would come across with a full disclosure when we first started out. I think, of course, a lot of it had to do with his fear of Carlos Hernandez in the case.").p. 175 "After 'working with…killing someone.'"Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:14:43–12:18:00:Q. When we spoke last time, you told me, as I got it down in my notes, and let's see if I got it correct, "To this day, I can't tell you if he, Carlos DeLuna, killed the victim. My opinion is that his friend killed her." Is that a fair— A. That is a fair statement. . . . I was always of the opinion that I did not believe that Carlos DeLuna actually murdered this lady. That was the reason I felt very much of an advocate on his behalf when we tried the case. But I, based on my piecing of the evidence together, that's why I felt that this [friend] was the one that ultimately killed the girl. And, in working with this young man, for the period of time that we worked with him, I just didn't feel like he was—You know, he may have been capable of doing stuff like stealing cars—and possibly, you know, scaring old women, as it turned out in the trial—but I just didn't think he was, I didn't feel he was capable of killing someone. That's my subjective feeling, not necessarily an objective finding.
p. 175 "'I honestly believe to this day that Carlos didn't do it'…"Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:14:43–12:18:00; James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 5 ("I honestly believe to this day that Carlos didn't do it.").p. 175 "…'his friend killed her.'"Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:14:43–12:18:00 ("My opinion is that his friend killed her. . . . . I felt that this [friend] was the one that ultimately killed the girl.").p. 175 "In fact…would plead guilty."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 2:11:14–12:14:43:Q. Did Carlos DeLuna have it in his power at any point along the way to avoid being executed and instead spend time in prison? A. To the best of my recollection, as I try and remember things, I recall that one of the prosecutors—because there was two prosecutors that were involved, that represented the state, there was a gentleman by the name of K[en] Botary and a young man by the name of Steve Schiwetz, both of them at that time being—think Mr. Schiwetz was probably, he wasn't lead counsel for the state, but he, apparently, did [offer a plea to a life sentence], prior to the time that we actually went to trial—and I believe, even before the jury came back [during the trial]—made an offer that if Carlos went ahead and pled, that he would recommend only a life sentence. Q. And what did Carlos DeLuna tell you about— A. He was adamant that he was not guilty and he wanted his day in court. And, in fact, if I recall correctly, although I don't know whether it would still be available, I know we actually had him sign an affidavit indicating that we had been offered a plea agreement of life in prison in return for his plea of guilty, and that he had refused it. Q. And that was because he told you "I'm innocent"? A. He was adamant that he was not involved in the girl's killing.
James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 3 ("Prosecutor Steve Schiwetz offered CDL [Carlos DeLuna] life, and he (CDL) wouldn't take it because he was innocent. He wouldn't take the plea. 'I'm innocent; I don't want to take the plea.' That was his (CDL's) mindset. I didn't believe he anticipated [that an innocent person could be convicted].").p. 176 "De Peña thought…the prosecutor."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:26:05–12:26:49 ("Mr. Schiwetz, I think, throughout this thing, because of Carlos's age and despite his record, really tried real hard to get my client to accept a life sentence rather than the possibility of the death penalty. And that's why I say, I think, if I recall correctly, he offered it prior to trial and I believe he even offered if during the course of the trial, while the jury was still out, that if my client agreed to plea he would recommend life rather than the death penalty."); see Steve Mills & Maurice Possley, 'I Didn't Do It. But I Know Who Did,' Chi. Trib., June 25, 2006, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=5 ("As the trial approached, Nueces County prosecutor Steve Schiwetz offered De Luna the same deal he said he offered other capital murder defendants: plead guilty in exchange for a life sentence. 'I would always be inclined to try to let a person try to save his life,' Schiwetz recalled. But De Luna turned down the deal, insisting he was innocent."); Kathy Fair, Executed Murderer Asked Forgiveness, Chaplain Says, Hous. Chron. Dec. 8, 1989 (discussing "prosecutor Steve Schiwetz's offer [to DeLuna] of a life sentence in exchange for a guilty plea"). Archived at: http://perma.cc/M5SM-UBN5p. 176 "But Carlos refused a deal."James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2 ("My client wasn't going to take a deal because he said 'I am innocent.' He told me from the beginning that [he] saw something, heard sirens and cops wouldn't believe him, so he ran."); see sources cited supra notes 77, 78.p. 176 "He was adamant…day in court."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:42:40–12:44:16 (speculating about DeLuna's "predisposition to believe that they wouldn't find him guilty, that there wouldn't be enough facts to find him guilty in the case. And I think that was one of the reasons he was adamant about having a trial rather than pleading guilty."); James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 3 ("Prosecutor Steve Schiwetz offered CDL life, and he (CDL) wouldn't take it because he was innocent. He wouldn't take the plea. 'I'm innocent; I don't want to take the plea.' That was his (CDL's) mindset. I didn't believe he anticipated [that an innocent person could be convicted].").p. 176 "Carlos's 'mind-set'…his guilt."Sources cited supra note 80.p. 176 "'They wouldn't find…enough facts.'"Sources cited supra note 80.p. 176 "The young man…'maybe retarded.'"James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 5 ("HDP [Hector De Peña] says that, 'from a standard education perspective, you might say CDL [Carlos DeLuna] was retarded; my experience with these guys is that they are street smart; they can survive on streets. From clinical point of view, maybe retarded; but in true to life terms he was ok.'").p. 176 "'Kutnick always found'…lawyer recalled."James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 5 ("Kutnick always pro-state [i.e., pro-prosecution]; always found them competent if they were minimally oriented in time and space.").p. 176 "Their church referred…molested them."James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 6 ("Plaisted preying on little kids. His church (HDP's [Hector DePeña's] church), Paradise Baptist, would find Plaisted patients. Baptist church school would refer kids to Plaisted, with some getting molested.").p. 176 "Word went around…floundering."Peso Chavez's and James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 1, 9 (recalling that the court "brought Jimmy (Lawrence) in (to the Carlos DeLuna case) to clean up Hector's [De Peña's] mess" and that "[w]ord had gotten out. Matter of some discussion [before trial]. Hector [was not handling it well]. That's why they brought in Jimmy. He was soft spoken so he wouldn't yell at Hector. Could slide into the case without offending Hector."); James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1 ("When Hector [De Peña] was appointed to that case (DeLuna), we were all aware there were problems in the case; and that's why they appointed Jimmy Lawrence later on. Jimmy Lawrence brought in because Hector was out of his league. . . . Sloppy investigation; should have been 2 people from beginning"); James S. Liebman's Notes on Interview with Bill May, Corpus Christi Criminal Defense Lawyer and Former Assistant District Attorney, in Corpus Christi (July 13, 2004) at 1 (opining that De Peña was not competent to handle a capital case at the time).p. 176–177 "His client, he said…his defense."Def.'s Mot. for Ct. Appointed Psychiatrist at 1–2, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Apr. 6, 1983):II. Defendant's court appointed attorney believes that the Defendant is afflicted with some sort of mental disorder that may well have destroyed the Defendant's ability to perceive the wrongfulness of his conduct or his capacity to conform his conduct to the requirements of the law he allegedly violated; that the Defendant is presently in such a state as to render him unable to adequately assist his Court appointed attorney in the preparation of an effective defense to the charge against him. . . . The Defendant's attorney has been advised by friends of the Defendant that he has had symptoms of severe disorder or mental defect for many years.
p. 177 "It was this…take a look."Order of Examination, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. May 16, 1983) at 1, 3; see supra Chapter 5, notes 141–150 and accompanying text (discussing and citing reports filed by Drs. Kutnick and Plaisted).p. 177 "Two months in…alone."Def.'s Mot. for Ct. Appointed Co-Counsel, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Apr. 5, 1983) at 1–2 ("This attorney feels that it is necessary that additional counsel be appointed in order to aid this attorney in the proper defense of Carlos De Luna, due to the seriousness and complexity of this case in addition to the need for full and proper investigation in this case as the defendant is charged with offense of capital murder.").p. 177 "He also pushed…June 20."Order on Mot. for Ct. Appointed Co-Counsel, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Apr. 15, 1983) at 1; Arg. of Counsel on Pretrial Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 4, 10 (noting that an April 15, 1983 trial date had been set and then postponed until June 20, 1983).p. 177 "No one cross-examined the ten remaining witnesses."Trial Tr.—Alphabetical List of Witnesses, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at i–v. De Peña's later recollection that he and Lawrence "took turns in the cross-examination of the witnesses" is not consistent with the transcription of the trial, which indicates which lawyers conducted the cross-examination of which witnesses. See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:42:40 ("Jim and I probably equally tried to work together in terms of putting a defense together. As I said, it was a very difficult case to put a defense together simply because our client never would come across with a full disclosure when we first started out. . . . And in terms of preparing the case, we pretty much prepared it together. We took turns, in that we took turns in the cross-examination of the witnesses, and we even split up the final arguments.").p. 177 "Of the five…minor witnesses."Trial Tr.—Alphabetical List of Witnesses, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at i–v.p. 177 "De Peña happily took a back seat."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:42:40 (describing his own role as "to handle the case as second chair").p. 177 "Years later…to the jurors."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:42:40–12:45:14:We . . . split up the final arguments [between De Peña and Lawrence, with Lawrence going last]. All I can say is, I had a real tough time with my co-counsel's final closing argument in the case . . . . He basically—part of the problem that I had with it was that he got into admonishing the jury that, you know, they shouldn't even consider the death penalty, you know, because they weren't God. I had a tough time with it, because we spent so much time trying to qualify a jury as to whether or not they could consider the full range of punishment. These were people who would go from zero to death, and then to say, well, you know, "You're not God and you can't give this guy the death penalty." But I couldn't control that part of it, I didn't know just how he was going to present his final argument.
See James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Penalty Phase Closing Arg., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 63–65 (calling Texas's death penalty statute—which the jurors selected for the case had all said they believed in and had sworn to apply conscientiously—"ridiculous"). See also James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4 ("HDP [Hector De Peña] tells story of being 'aghast' during James Lawrence's closing argument. His [lawyer] friend Albert Peña was in the courtroom to watch the closing arguments and made a motion showing a man nailing the last nail into CDL's coffin, because the argument was trying to talk a death qualified jury out of imposing the death penalty.").p. 177 "The two lawyers didn't coordinate their work very well."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:45:32–12:46:50:There was another attorney there watching the trial, and he happened to be a friend of mine and was, took time to sit next to my wife. As we got into the final arguments of this case, in the penalty phase, Mr. Lawrence apparently started harrying the jury about the fact that they shouldn't play God in this situation and give the defendant the death penalty, and my wife says at that point that Mr. Peña sort of chuckled and looked at her and sort of made the notation like he [was] hammering down the top of a coffin.
p. 177 "'I didn't know…final argument.'"Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:44:16–12:45:14 ("But I couldn't control that part of it, I didn't know just how he was going to present his final argument.").p. 177 "The court reporter…hear De Peña."See Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, Closing Arg., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 517 ("One of the things that apparently seems to be—a point that stuck out in my mind and I felt like might—I felt like would be beneficial to you—[The Court Reporter]: I'm sorry, Hector, I can't hear you. [De Peña]: I'm sorry.").p. 177 "Neither, it seemed, could the jurors."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:52:39–12:53:11 ("I had been accused the whole time we were [in] trial of speaking too quietly, and the court reporter said she had trouble hearing me.").p. 177 "That was De Peña's…before trial."Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:52:39–12:53:11:I had been accused the whole time we were [in] trial of speaking too quietly, and the court reporter said she had trouble hearing me. And I think I turned to Jim [Lawrence] at that point [when the prosecution produced unexpected evidence from a witness the defense had known about but did not interview] and said something like "Oh, shit." She [the court reporter] later informed me she had heard that and she was going to have to put it in the transcript. To this day I don't know if it's in the transcript or not. [It is not in fact in the transcript.]
p. 177 "The inexperienced lawyer…of the case."See supra note 99.p. 179 "Detective Eddie Garza…'collect his fee.'"Bruce Whitman's Notes on Interview with Eddie Garza, Corpus Christi Police Detective (Aug. 23, 2004) at 1 (offering opinion critical of Lawrence's competence, diligence, and track record as a criminal defense attorney, and stating that he is "court appointed, collects his fees, and forces his clients to plea bargain without regard to guilt or innocence"); James S. Liebman's and Bruce Whitman's Notes on Interview with Eddie Garza, Corpus Christi Police Detective (Aug. 25, 2004) at 1 (offering opinion critical of Lawrence's diligence as a criminal defense attorney, and stating that he is "Paid $2000/case. Meets with client a few minutes before they go to court. $2000/case x 5 cases a week, and it's a lot of money. Even murder cases, big cases . . . .").p. 179 "Others thought…'honest' and 'excellent.'"Peso Chavez's and James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 1, 10 (discussing "better lawyers" who typically handled capital cases, including "James Lawrence. Excellent attorney"; "as honest as the day is long"); James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1 ("Jimmy Lawrence brought in [to DeLuna case] because Hector was out of his league.").p. 179 "It was lost…that year."James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (July 12, 2004) at 1 ("No memory of case. . . . Claims not to [remember it]. [Investigator] Let[s] him [Lawrence] read news coverage [on case]. . . . Claimed he didn't remember a thing."); see James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1 ("[O]f all the cases I tried, I remember the DeLuna case the least. Whole damn case and I can't remember it. Schiwetz approached JL [James Lawrence] because S[chiwetz] was hot under collar . . . about investigation [into DeLuna case then being conducted]. But JL cannot remember. He asked S to describe case. Still can't remember much.").p. 179 "There indeed were hundreds each year."See James S. Liebman, Outline of the DeLuna Investigation (Nov. 5, 2005) at 70 ("When we first asked [James Lawrence during the 2004–05 investigation] about DeLuna's conviction leading to his execution, Lawrence told us the volume of his work was such that he had [no] recollection of representing DeLuna at trial or on direct appeal (he was [also] DeLuna's only lawyer on direct appeal).")p. 179 "Schiwetz approached…many years later."James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1, 2 (stating that "1 month ago, JL [James Lawrence] ran into Schiwetz in court. Schiwetz brought [up] DeLuna. JL said to Schiwetz, of all the cases I tried, I remember the DeLuna case the least. Whole damn case and I can't remember it. Schiwetz approached JL because S was hot under collar by about investigation. But JL cannot remember. He asked S[chiwetz] to describe case. Still can't remember much.").p. 179 "Even after talking…remember much."See supra note 105.p. 179 "The police found…look good."James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1 ("JL [James Lawrence] remembers CDL [Carlos DeLuna being discovered] under car; money found on him. . . . The problem was he was found under the truck so close to the station.").p. 179 "De Luna told…'[and ran] away.'"James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1 ("I remember him telling me he ran because he was on parole. He saw what was going on in there (inside [the gas] station) and then heard sirens running [i.e., and ran] away. . . . He (CDL [Carlos DeLuna]) told me I saw the cops and I just took off running because I knew they were going to blame me. I saw him (someone else [committing the crime]) and I ran away. When I heard the cops.")p. 179 "Lawrence also brought…had on him."James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2 ("Today I would use the money thing; they don't keep that much money in their drawer.").p. 179 "The lawyer also recalled…not DeLuna."James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2:Everything pointed at CDL, but no physical evidence against him. No blood on him, knife; close [contact with victim during struggle] and no blood on clothes; raining that night; it was wet. That was their out. My client wasn't going to take a deal because he said "I am innocent." He [DeLuna] told me from the beginning that [he] saw something, heard sirens and cops wouldn't believe him, so he ran. You almost have to believe him because no physical evidence. . . . Fact of physical evidence (none) bothered me. . . . [Investigator] asks are you 100% sure he [DeLuna] did do it. JL [James Lawrence]: "Hell no. Don't know what percentage I'd put on it." Things that bothered him were no physical evidence and that his guy saw a man coming out of that store who described another person. Hell if that isn't reasonable doubt I don't know what is.
p. 179 "'Hell, if that isn't'…he said."James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2 ("Hell if that isn't reasonable doubt I don't know what is."); see also James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1 ("I prejudge my clients. They lie to you and say didn't do it. Worry about perjury. But, says JL [James Lawrence], I don't recall my pre-judgment about this case.").p. 179 "At a hearing…early March."Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 18 ("Q. [by Judge Wallace C. Moore] Is it correct when the Defendant asserts that you didn't visit him between March the 1st and the present time? [De Peña:] That is correct.").p. 179 "De Peña admitted…'my own cases.'"Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 17–18:I [Hector De Peña] was trying to do—work up part of the case and—and—and work on this matter at the same time, which is why in April I requested that the Court provide co-counsel in the case to assist me with it because I felt like the—that there was some leg work that needed to be done that I could not do because of trying to maintain my own practice and my own cases and case load scheduled that I had, as well as trying to work on this case at the same time.
See Def.'s First Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 1 ("Hector DePena, Jr., has not come to see [DeLuna] since March 1, 1983, the only time he ever came, nor has he filed any motions in [DeLuna's] behalf.").p. 179–180 "No one asked…his 'own' cases."Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 17–18:I [Hector De Peña] was trying to do—work up part of the case and—and—and work on this matter at the same time, which is why in April I requested that the Court provide co-counsel in the case to assist me with it because I felt like the—that there was some leg work that needed to be done that I could not do because of trying to maintain my own practice and my own cases and case load scheduled that I had, as well as trying to work on this case at the same time.
p. 180 "Late April…assigned to him."Def.'s First Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 1 ("James Lawrence, attorney of record, [as of June 10, 1983] has not had a sufficient amount of time to prepare for Defendant, for the following reasons: Counsel was appointed in late April, 1983 [sic, April 15], as co-counsel and has been engaged in the trial of the following matters, namely, State of Texas vs. Robert DeLa Rosa, which has prevented counsel from devoting time to investigate and prepare for the trial of this case."); Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 4 ("[O]n or about May the 5th of 1983 I was engaged in a murder trial entitled State of Texas versus Robert De La Rosa that was tried in the 94th District, which basically ended somewhere around the middle of May.").p. 180 "Lawrence did file…on DeLuna…"Mot. for Discovery and Inspection of Evidence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. May 6, 1983) at 1–3; Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 4 ("Beginning the middle of May of 1983 I started investigating this case.").p. 180 "…he did take a look at the evidence."Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 5–6 ("Beginning the middle of May 1983 . . . I met numerous times with Steve Schiwetz, the Assistant District Attorney that's present here in Court and handling the case" to review evidence in the prosecution file).p. 180 "But he had…what happened."Def.'s First Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 1 ("James Lawrence, attorney of record, [as of June 10, 1983] has not had a sufficient amount of time to prepare for Defendant, for the following reasons: Counsel was appointed in late April, 1983 [sic, April 15], as co-counsel and has been engaged in the trial of the following matters, namely, State of Texas vs. Robert DeLa Rosa, which has prevented counsel from devoting time to investigate and prepare for the trial of this case."); Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 5–6 (explaining why "[t]here was nothing done" on a factual investigation because of the inability to get a judge to rule on the motion for an investigator; "it wasn't until yesterday morning [June 9] that I talked to Judge Dunham, and he approved the—I don't think he signed the order as such, but he did tell us orally and did tell me orally as of yesterday on June the 9th [that he would authorize a court-funded investigator].").p. 180 "He filed…Detective Olivia Escobedo."Def.s Mot. to Quash Indictment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983); Def.'s Request That the State Elect, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983); Demand for Individual Voir Dire, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983); Mot. for Hr'g on Voluntariness of Any Admission or Confession Whether Written or Oral, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983); Mot. for Jury List, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983); Mot. to Suppress Identification, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 2, 1983); Mot. for Identification Hearing, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 3, 1983). Cf Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 5–6 ("I have filed at least ten motions in behalf of Mr. De Luna since around the middle of May of 1983 [sic—the first of the motions was filed on June 1].").p. 180 "It was then…side of the story."Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 7:Q. [by Judge Wallace C. Moore] Mr. Lawrence, when did you—when did your client first tell you of the alibi witnesses? A. I was told of several of these witnesses beginning—It would have to have been after—certainly after May the 15th, and it would have to have been either the beginning of—of June or the latter part of May. I have got—Saturday, this past Saturday [June 4] when I visited him at the jail, in getting a complete statement from the Defendant which could cover that aspect of it. Up until that point I didn't have any.
Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 9–10:Q. [by prosecutor Schiwetz] Mr. Lawrence, why was the Defendant unable to provide you with the names of these witnesses up until just recently? A. [by James Lawrence] I didn't talk to Mr. De Luna until I got through with my case after May the 15th, and it was at that time . . . I told him everything that the District Attorney's office had on him, and I told him I would be back in two or three days, that I wanted him to think and give me his complete story as to what took place and that's what happened this past Saturday. Q. Okay. So you actually didn't hear your Defendant's side of what happened until this past Saturday? A. That is correct. Q. And that would be, what, the—I don't know what date that is. A. Right, the beginning of June somewhere. Q. 4th? A. [by Judge Wallace C. Moore]: 4th.
Steve Mills & Maurice Possley, 'I Didn't Do It. But I Know Who Did,' Chi. Trib., June 25, 2006, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=5 ("It wasn't until five weeks before trial [early June] that Lawrence met with De Luna to hear his account of what happened. Lawrence then requested that the court pay $500 for a private investigator."). Archived at: http://perma.cc/M5SM-UBN5p. 180 "'He told me…so he ran.'"James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2 ("My client wasn't going to take a deal because he said 'I am innocent.' He told me from the beginning that saw something, heard sirens and cops wouldn't believe him, so he ran."); Steve Mills & Maurice Possley, 'I Didn't Do It. But I Know Who Did,' Chi. Trib., June 25, 2006, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=5:De Luna told Lawrence that on the day of the crime, he cashed his $135.49 paycheck from his construction job and drank beer with friends. That night, he said, he was at a skating rink talking with two women and left to walk toward a nightclub to find someone to give him a ride home. He said he was at the nightclub, across from the Sigmor station, when he heard sirens. Because he had been paroled from prison only weeks earlier, he panicked and ran. "I remember our client said, 'I didn't do it. I had to run because I saw what was happening, and no one was going to believe me,'" Lawrence recalled. Archived at: http://perma.cc/M5SM-UBN5
p. 180 "'He wanted to be sure he would be protected if he gave [a] name."James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2 ("CDL [Carlos DeLuna]: Reluctant to give up a name. He wanted to be sure he would be protected if he gave name.").p. 180 "They assured the family…death sentence."Transcribed Videotape Interview with Richard Louis Vargas, Brother of Wanda Lopez, in Corpus Christi, Texas (Dec. 4, 2004) at 07:00:57–07:04:00:Q. Between . . . the time that your sister died and the trial, what kind of interaction did you have with the authorities, the police, the prosecutors? A. They came, four of them came to my mother's house, and they came to talk to us and promised us everything would be taken care of. That we didn't have to intervene in no way. Q. Did you suggest the possibility of intervention? A. Yes, I did. Q. Could you tell us what you said, what that conversation was? A. At this time I was very furious and hurt, and I promised them that if they didn't take care of it, I would. Q. [How did the police respond?] A. Not even to go there, that they would promise me that they'd be tedious [i.e., meticulous] to the end. Q. [Y]ou said there were four detectives, were they plain clothes or were they in uniform. A. No, they wore like suits. Q. Men, women? A. I only remember 4 men. Q. Do you remember their names? A. No, I don't. Q. Did you talk to any attorneys, or the four men who came with suits on. Do you actually know whether they were police, detectives, and prosecutors? Do you know who they were? A. They were all detectives they said, they showed their badges. . . . Q. What else did they tell you about the case at that point, when they came, those four gentleman? A. They were there to pay respect and let us know that this was a very one of a kind crime scene that they had never witnessed and that involved one of the big chain stores [Diamond Shamrock] and they were going to try to see how to correct this and find out what really happened.