1. 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.”).

  2. p.170 “As is true for police dectectives and prosecutors…”

    See supra Chapter 4, notes 9–12 and accompanying text.

  3. 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.”).

  4. 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).

  5. p.170 “When he decided…exactly who did.”

    See supra Chapter 7, notes 10–11, 94–95 and accompanying text.

  6. 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.”).

  7. 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).

  8. p.171 “Prosecutors fight capital cases hard…”

    See supra note 7.

  9. 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).

  10. 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).

  11. 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).

  12. 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).

  13. p.171 “At that trial…especially bad.”

    See, e.g., Zant v. Stephens, 462 U.S. 862, 893–94 (1983).

  14. p.171 “Then the defendent…what happened.”

    See, e.g., Lockett v. Ohio, 438 U.S. 568, 604 (1978).

  15. 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.

  16. 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-YLRG

  17. p.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).

  18. 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).

  19. 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.

  20. p.172 “That’s why…difficulties you faced.”

    See supra note 19.

  21. 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.”).

  22. 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.”).

  23. 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.”).

  24. 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 . . . .

  25. 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.

  26. 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.”).

  27. p.172 “He was a small-time general practitioner…”

    See supra note 26 and accompanying text.

  28. 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-JAZJ

  29. p.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”).

  30. 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.”).

  31. 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).

  32. 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].”).

  33. 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.”).

  34. 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 . . . .”).

  35. 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).

  36. 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).

  37. 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).

  38. 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).

  39. 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.

  40. 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).

  41. 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-UBN5

  42. p.173 “Because he was…to help out.”

    See 15 Martindale-Hubbell Law Directory at TX77P (1994) (listing De Peña as a solo practioner).

  43. 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.”).

  44. 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.”).

  45. 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.”

  46. p.173 “The prosecutors were…friends outside.”

    See supra note 45 and accompanying text..

  47. 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.”).

  48. p.173 “Over time…they could get.”

    See supra note 47.

  49. p.173 “‘Ends justify the means.’”

    See supra note 47.

  50. 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.”).

  51. p.174 “‘My opinion was…a conviction.’”

    See supra note 50.

  52. 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”).

  53. 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.”).

  54. 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).

  55. 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.).

  56. 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.

  57. 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.”).

  58. 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”).

  59. p.175 “He also knew…pick-up truck.”

    See supra Chapter 2, notes 249–257.

  60. 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.”).

  61. 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.

  62. 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.

  63. p.175 “…the prosecutors…”

    See infra notes 77–78 and accompanying text.

  64. p.175 “…the jury…”

    See infra Chapter 13, notes 218–220 and accompanying text.

  65. 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.

  66. p.175 “…a prison pastor…”

    See infra Chapter 16, notes 181–192 and accompanying text.

  67. 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.”).

  68. 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.”).

  69. 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.”).

  70. 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.’”).

  71. 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.’”).

  72. 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.’”).

  73. 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.”).

  74. 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.

  75. 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.”).

  76. 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.”).

  77. 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].”).

  78. 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-UBN5

  79. p.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.

  80. 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].”).

  81. p.176 “Carlos’s ‘mind-set’…his guilt.”

    Sources cited supra note 80.

  82. p.176 “‘They wouldn’t find…enough facts.’”

    Sources cited supra note 80.

  83. 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.’”).

  84. 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.”).

  85. 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.”).

  86. 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).

  87. 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.

  88. 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).

  89. 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.”).

  90. 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).

  91. 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.”).

  92. 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.

  93. 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”).

  94. 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.”).

  95. 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.

  96. 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.”).

  97. 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.”).

  98. 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.”).

  99. 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.]

  100. p.177 “The inexperienced lawyer…of the case.”

    See supra note 99.

  101. 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 . . . .”).

  102. 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.”).

  103. 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.”).

  104. 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).”)

  105. 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.”).

  106. p.179 “Even after talking…remember much.”

    See supra note 105.

  107. 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.”).

  108. 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.”)

  109. 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.”).

  110. 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.

  111. 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.”).

  112. 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.”).

  113. 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.”).

  114. 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.

  115. 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.”).

  116. 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.”).

  117. 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).

  118. 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].”).

  119. 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].”).

  120. 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-UBN5

  121. p.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

  122. 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.”).

  123. 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.

  124. p.180 “Richard told them…he would.”

    See supra note 123.

  125. p.180 “‘We’ll see it through.’”

    See supra note 123.

  126. p.180 “Everything until that visit…to save her…”

    See supra Chapter 1, notes 59–69 and accompanying text.

  127. p.180 “…how the store manager…what happened…”

    See supra Chapter 1, notes 51–52 and accompanying text.

  128. p.180 “…how the police gave…letting the family know…”

    See supra Chapter 1, notes 80–84 and accompanying text.

  129. p.180 “…made him wonder how seriously the police were taking the case.”

    Transcribed Videotape Interview with Richard Louis Vargas, Brother of Wanda Lopez, in Corpus Christi, Texas (Dec. 4, 2004) at 06:55:23–06:57:11:

    Q. In between that night and the time of those hearings and trial, was there any news about this on the local television? About this case.

    A. Yes, they started airing on air, making people aware of what had happened at the store.

    Q. What did they use on the television to make people aware of what had happened?

    A. Something I never heard [of before] that made me very furious was the 911 calls. . . .

    Q. On television, what were [they] using to tell people about what had happened?

    A. They showed words on the bottom and they show[ed] some kind of figuration on top. But not only did they show those two things they put her voice in there. So you had three ways of hearing what was happening at the time.

    Transcribed Videotape Interview with Richard Louis Vargas, Brother of Wanda Lopez, in Corpus Christi, Texas (Dec. 4, 2004) at 07:00:02–07:00:32 (“Q. Now, between [the] time when your sister died and the trial, how many times did you see them playing that one 911 tape? A. Over and over. Every month at least twice or more. It was a highly publicized crime. A lot of people heard it.”);

    Transcribed Videotape Interview with Richard Louis Vargas, Brother of Wanda Lopez, in Corpus Christi, Texas (Dec. 4, 2004) at 07:08:38–07:10:32:

    Q. Eventually you came to find out that there [were] two 911 tapes, not just one. Ok. What did those two 911 tapes, would you tell us, tell me. What those 911 tapes together showed that happened that night?

    A. It showed that first, she was aware of her surroundings. She knew something was going to happen. And as scared as she was she didn’t make it look like she was calling the police. Although the police were at the other end of the line knowing what was about to happen, and disconnected her on the first call.

    Transcribed Videotape Interview with Richard Louis Vargas, Brother of Wanda Lopez, in Corpus Christi, Texas (Dec. 4, 2004) at 07:13:05–07:14:13:

    Q. Richard, do you think the police did a good job in finding out who did this thing to your family?

    A. At the time, yes.

    Q. But now, [looking] at the whole thing, what are your overall feelings about, tell us everything you feel about how it’s all come to be.

    A. Well, now I hear the rest of the story, I’ve now been introduced to a side of the story I never knew about.

  130. p.180 “He dreamed about…’the bastard’ himself.”

    See sources cited supra note 129.

  131. p.181 “At the end of May…DeLuna’s case.”

    Order of Assignment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. May 26, 1983);

    see also Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 5 (“[A]t the time we [defense counsel] were asking for a visiting judge [to be assigned to the case].”);

    James S. Liebman’s Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1 (noting that he had tried a case in front of Judge Moore once before);

    Linda Carrico, City Man Gets Execution Date for ’83 Slaying, Corpus Christi Caller-Times, July 24, 1986 at 1A (reporting that Judge Wallace Moore went by the first name of “Pete”).

  132. p.181 “Moore liked to take a case in Corpus now and then.”

    See James S. Liebman’s Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1 (noting that he had tried a case in front of visiting Judge Moore once before).

  133. p.181 “If he stayed…might keep coming.”

    Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:51:04 (“A visiting judge comes into a county and, you know he don’t want to make trouble. He’s getting paid.“).

  134. p.181 “Kelly didn’t like…’That’s number one.’”

    Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:51:04–07:52:38:

    A visiting judge comes into a county and, you know he don’t want to make trouble. He’s getting paid. . . . You [a visiting judge] don’t want to cause trouble for the judge whose bench you’re sitting on, and you don’t want to cause trouble for the county. That’s number one. Number two is, you don’t really care, do you? Because you’re not going to be here when this is over. . . . He’s going to challenge the county’s district attorney? He going to challenge the other judges in the court house? No. He’s there not to make waves. And the way to do that is to rule for the state and against the defendant. Because he ain’t going to be asked back if he does it another way.

  135. p.181 “A visiting judge is…’another way.’”

    See supra note 134.

  136. p.181 “‘Number two…when this is over.’”

    See supra note 134.

  137. p.181 “Because De Peña and Lawrence…and his fee.”

    See, e.g, Order of Assignment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983) (assigning Judge Moore to the DeLuna case for a two-week assignment beginning June 19, 1983);

    Order of Assignment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 27, 1983) (assigning Judge Moore to the DeLuna case again, but leaving the endpoint of the assignment open).

  138. p.181 “On June 9…on an investigator.”

    See Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 5–6:

    [By James Lawrence] One of the motions that I filed [in early June] for a—an appointment of an investigator, since my counsel—since my client was an indigent, we went ahead and filed the motion. There was nothing done because of the fact that the case was under Judge Dunham’s Court, the 28th District Court, and at the time we were asking for a visiting judge and so no one took any action on our motion, and it wasn’t until the beginning of this week [of June 10] that I contacted Mr. Schiwetz [the prosecutor] and I asked him if he could some how or another help us in trying to get this investigation or investigator appointed for our client, and he helped and we talked to Judge Dunham. . . . [I]t wasn’t until yesterday morning 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].

    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, 12:39:15 (“And, eventually, we were able to convince the district judge to allow us to hire an investigator, which was like pulling teeth at the time.”; “We were able to persuade the court to allow us an allowance of 500 dollars for the investigation.”);

    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.”); see supra note 11 and accompanying text. Archived at: http://perma.cc/M5SM-UBN5

  139. p.180 “The next day…investigate or prepare.”

    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, 7 (by James Lawrence: 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].”; “We feel there are about four or five witnesses that we have been unable to get ahold of, and I feel the names provided by Mr. De Luna to us and with the investigator working on it, and that it’s going to take a short period of time in which we can either locate these witnesses or not.”; “Q. [by Judge Wallace C. Moore] Mr. Lawrence, when did you—when did your client first tell you of the alibi witnesses? A. [by James Lawrence] 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, 1983] 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 [information about the names].”).

  140. p.181 “In an unusual move…replace De Peña.”

    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.”)

  141. p.181 “Somewhere along the way…never ruled on it.”

    Def.’s First Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 1 (text crossed out by hand stated “I would ask the court to have another attorney appointed instead of Hector De Pena, Jr.”).

  142. p.181 “But Lawrence’s statements…for a postponement.”

    Def.’s 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 by to see [DeLuna] since March 1, 1983, the only time he ever came, nor has he filed any motions in [DeLuna's] behalf.”).

  143. p.181 “Lawrence then explained…on the case…”

    See supra notes 115, 118, 139 and accompanying text.

  144. p.181 “Still displaying…a few weeks.”

    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 11 (“I discussed with co-counsel [De Peña] what [Carlos DeLuna] had provided, and he had provided co-counsel even less than what he had provided me.”).

  145. p.182 “The judge refused to postpone the trial.”

    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 22 (“Well, the docket here actually doesn’t permit [a continuation]. Of course, that’s not paramount as far as Constitutional questions are concerned, but I’m going to overrule the motion.”);

    Order Denying Defendant’s Mot. for Continuance at 1–3, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983).

  146. p.182 “The words Carlos strung…’prepare his defense.’”

    Def.’s Statement on Ineffective Counsel, Texas v. DeLuna, No. 83-CR–193-A (Nueces Cty., 28th Dist. Tex. June 17, 1983) (“Conflict of interest and the relationship of client and attorney can not be reached, therefore, the Defendant cannot go safely to trial and have this said attorney prepare his defense.”).

  147. p.182 “Or, as he wrote…’Mr. De Peña remove [sic].’”

    Letter from Carlos De Luna to Judge Dunham (Nov. 17, 1983), Nueces County Court records at 10 of 73 (“I had two Attorneys But The Other Attorney Mr. De Pena Jr. was not Doing Nothing to help me so I Filed A motion to have Mr. De Pena Remove From handling my Appeal.”).

  148. p.182 “DeLuna’s second handwritten document…June 20.”

    Def.’s Mot. for a Continuance (handwritten), Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 17, 1983) (“The Defendant is now filing this said motion Because one of the Defendant[']s witness[es] is now in the hospital.”);

    Tr. of Pretrial Hr’g, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 3 (“[By Lawrence] To further enlighten the Court, she [De Luna's mother] underwent an operation, she had complications, she had a heart attack . . . . [S]he’s now in Intensive Care.”).

  149. p.182 “On June 20…’request of Defense.’”

    Order Denying Mot. for a Continuance (handwritten), Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 17, 1983) at 1 (“Motion for Continuance denied; Case reset to 5 July 1983 at request of Defense.”).

  150. p.182 “Everything became clear…under a pick-up truck…”

    See supra Chapter 2, notes 249–255 and accompanying text.

  151. p.182 “…9:20 P.M. or so…at the the gas station.”

    See supra Chapter 3, notes 65–100 and accompanying text.

  152. p.182–183 “Carlos DeLuna, they concluded…underneath the truck.”

    See supra Chapter 4, notes 10–12, 93, 115–116 and accompanying text.

  153. p.183 “Thirty or forty minutes…the crime scene.”

    See supra Chapter 4, notes 111–116 and accompanying text; supra Chapter 10 notes 197–204 and accompanying text.

  154. p.183 “Detective Escobedo and three prosecutors—initially a man named Jack Hunter…”

    See, e.g., Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 10, 1983) (requesting Wanda Lopez’s medical records; “Jack E. Hunter” signed as the “Attorney for the State.”).

    See also supra note 55.

  155. p.183 “Assisting them were…case for trial.”

    The twenty-seven individuals, in addition to Escobedo, are: (1) Corpus Christi Police employees Alvarado (subpoenaed as a witness); (2) Escochea (police dispatcher during manhunt, prepared witness statement, subpoenaed as witness, assisted prosecutor Schiwetz in preparing for trial, testified); (3) Fowler (first officer at the scene, filed police reports, subpoenaed as a witness, testified); (4) Garrett (recorded witness statements, filed police reports, subpoenaed as a witness, testified); (5) Eddie Garza (reported information to Escobedo about Carlos Hernandez, subpoenaed as a witness, testified for the prosecution about Carlos DeLuna’s bad reputation in the community); (6) Glorfield (one of officers in charge at the Sigmor gas station during the manhunt; subpoenaed as a witness); (7) Infante (assisted scene investigation, took photographs, recovered fingerprints, filed reports, subpoenaed as a witness, testified); (8) Klemp (secured the 911 tape, subpoenaed as a witness, testified); (9) Knox (subpoenaed as a witness); (10) McConley (one of officers in charge at the Sigmor gas station during the manhunt; supervised the show-up identification at the scene, subpoenaed as a witness); (11) McCoy (auxiliary officer who was working as Fowler’s partner that night, subpoenaed as a witness); (12) Mejia (second officer at scene, filed police reports, subpoenaed as a witness, testified); (13) Mylett (arresting officer, filed police reports, subpoenaed as a witness, testified); (14) Schauer (arresting officer, filed police reports, subpoenaed as a witness, testified); (15) Torres (subpoenaed as a witness); (16) Shedd (obtained DeLuna’s clothing found in Armando Garcia’s yard, filed police reports, subpoenaed as a witness); (17) Wilson (conducted fingerprint analyses, subpoenaed as a witness, testified); (18) Morales and (19) Leal (attempted to obtain reference fingerprints from the deceased); Department of Public Safety employees (20) Thain (conducted blood analyses, subpoenaed as witness, testified) and (21) Waller (coordinated DPS analyses in the case and reported results to Escobedo in writing); (22) County Medical Examiner Rupp (conducted autopsy, filed report, subpoenaed as witness, testified); (23) Sheriff’s Dep’t employees Bieniek (subpoenaed as a witness, testified for the prosecution about Carlos DeLuna’s reputation in the community); (24) Ernesto Gonzales (observed DeLuna’s behavior in jail awaiting trial, subpoenaed to testify, testified); (25) Estella Gonzales (similar); (26) Ruben Rivera (arresting officer, filed police reports, subpoenaed as a witness, testified); and (27) Carolyn Vargas (Ruben Rivera’s partner who assisted in arrest, subpoenaed as witness).

  156. p.183 “The process began…Phase III Nightclub.”

    See supra Chapter 3, note 102 and accompanying text.

  157. p.183 “Escobedo also asked…according to Escobedo’s instructions.”

    Joseph Rupp, Nueces County Medical Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 213 (“Q. Did anybody ask you to do fingernail scrapings on [Wanda Lopez]? A. No.”);

    see Transcribed Videotape Interview with Eddie Garza, Corpus Christi Police Detective, in Corpus Christi, Texas (Dec. 6, 2004) at 01:32:09–01:32:26 (“A person trying to defend herself, if that’s the only weapon that she has, is her nails, should have revealed some kind of scrapings. And if it wasn’t done, somebody dropped the ball and didn’t do the proper examining on this body.”).

  158. p.183 “Over the next few days…in his yard.”

    See, e.g., Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“I approached the lady coming out the front door. She had blood all over her. She fell into the building and I helped her on down to the ground. All she said was, ‘Help me, help me.’”);

    Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 5, 1983):

    George Aguirre . . . advised in his statement that he was at the Sigmor Station gassing up his van when he was approached by the suspect and asked if he would furnish him with a ride . . . . John Arsuaga . . . advised that he and his wife, Julie . . . were pulling into the parking lot at Phase III also in the 2600 block of SPID and that they both observed a Hispanic male subject running across a vacant lot adjacent to Phase III . . . . Jesus Escochea . . . did answer a call from a female who told him that she was at the Sigmor Station . . . and that she told Escochea that there was a man in the store who was armed with a knife.

    Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 12, 1983) at 3 (“Barrera advised that it was her truck that the suspect was hiding under.”);

    M. Shedd, Corpus Christi Police Sergeant, Supplementary Report (Feb. 6, 1983) at 1 (“I contacted Mr. Armando Garcia . . . . This morning at approximately 11 a.m., while cleaning his yard, he found a white shirt, and a pair of track shoes in his yard.”).

  159. p.183 “Last, there was…the investigation there.”

    See, e.g., Steven Fowler, Corpus Christi Police Sergeant, Supplementary Report (Feb. 4, 1983) at 1;

    Bruno Mejia, Corpus Christi Police Officer, Supplementary Report (Feb. 4, 1983) at 1–3;

    Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 6, 1983) at 1;

    Mark Schauer, Corpus Christi Police Officer, Supplementary Report (Undated) at 1–2;

    Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 5, 1983) at 1–8;

    Ruben Rivera, Nueces County Deputy Constable, Supplementary Report (Feb. 7, 1983) at 2.

  160. p.183 “On Monday…prosecutor Jack Hunter…”

    Olivia Escobedo, Corpus Christi Detective in Wanda Lopez and Dahlia Sauceda Cases, Memorandum on Elimination Prints from Wanda Vargas Lopez (Feb. 8, 1983) (stating that Escobedo spent the morning of February 7, 1983 working on the DeLuna prosecution with prosecutor Jack Hunter).

  161. p.183 “Soon after the meeting…Lopez was buried.”

    See supra Chapter 10, notes 196 and accompanying text.

  162. p.184–184 “She also ordered…case against DeLuna.”

    See, e.g., Mark Schauer, Corpus Christi Police Officer, Supplementary Report (Undated) at 9;

    Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 1;

    Ruben Rivera, Nueces County Deputy Constable, Supplementary Report (Feb. 8, 1983) at 1;

    Mark Schauer, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 2;

    Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 10, 1983) at 1;

    Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 12, 1983) at 3;

    see Mark Schauer, Corpus Christi Police Officer, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 139–40 (explaining why details in his testimony were not included in his initial police report and were added in another report after the fact: “She [Escobedo] caught me in the hallway of central records and asked me to—to add everything I could remember, as much as possible to my—to my supplementary [report].”).

  163. p.184 “Using all the reports…case against DeLuna.”

    Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 5, 1983) at 1–9;

    see Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 10, 1983) at 1;

    Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 12, 1983) at 1–4.

  164. p.184 “Escobedo also let…confess to the crime.”

    See Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 10, 1983) at 1 (noting that Gilbert Garcia, DeLuna’s State Parole officer, interviewed DeLuna in jail shortly after his arrest for killing Wanda Lopez);

    Carlos DeLuna, Defendant in Killing of Wanda Lopez, Trial Test., Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 424–28 (discussing meeting with parole officer Gilbert Garcia shortly after his arrest).

  165. p.184 “The lead detective worked…in his pocket.”

    See supra Chapter 10, notes 67–71 and accompanying text, infra Chapter 13, note 81 and accompanying text.

  166. p.184 “They preserved the part…hung up the phone.”

    Robert Klemp, Corpus Christi Police Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 379–80 (“The original tape was placed in [a] file in the file cabinet and I separated it from our normal file tapes for evidence purposes and I made this cassette, this cassette tape off a cassette recorder which reproduced it off the master tape.”);

    see infra notes 195–200 and accompanying text; infra Chapter 13, notes 150–153 and accompanying text.

  167. p.184 “Prosecutor Hunter prepared…with murder.”

    See Compl., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 7, 1983) (Nueces County Court records compendium at 18) (“[O]ne Carlos DeLuna did then and there intentionally and knowingly cause the death of an individual, Wanda Vargas Lopez, by stabbing Wanda Vargas Lopez with a knife.”).

  168. p.184 “The grand jury indicted DeLuna for capital murder.”

    Grand Jury Indictment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 17, 1983).

  169. p.184 “Beginning in late February…for a look.”

    Letter from Jack Hunter, Acting District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Feb. 28, 1983);

    Letter from Jack Hunter, Acting District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Mar. 4, 1983);

    see also Letter from Jack Hunter, Acting District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Mar. 16, 1983).

  170. p.184 “Throughout March…save her life.”

    Application for Subpoena Duces Tecum to Dr. Arringdale, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 28, 1983) at 1 (ordering Dr. Arringdale to produce medical records on treatment of Wanda Lopez on the night of February 4, 1983 for use in court proceedings);

    see also Letter from Jack Hunter, Acting District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Mar. 4, 1983) at 1 (noting that the Nueces County District attorney’s office ordered “penitentiary packs” (information about prior convictions and prison incarceration) on Carlos DeLuna);

    Letter from Jack Hunter, Acting District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Mar. 16, 1983).

  171. p.184 “Hunter then began identifying…Armando Garcia.”

    Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 8, 1983) at 1 (subpoenaing various Corpus Christi police officers to testify against Carlos DeLuna);

    Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 8, 1983) at 1 (subpoenaing George Aguirre, Kevin Baker, Armando Garcia, and Theresa Barrera to testify against Carlos DeLuna);

    Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 9, 1983) at 1 (similar);

    Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 10, 1983) at 1 (subpoenaing Pete Gonzales, the Shamrock store’s district manager to testify against Carlos DeLuna);

    see also Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 16, 1983) at 1 (subpoenaing Nurse Dorothy Gomez, who treated Wanda Lopez on the night of February 4, 1893, to testify against Carlos DeLuna).

  172. p.185 “Infante took Hernandez’s fingerprints…same name.”

    See supra Chapter 9, notes 8–9, 50–51, 56–66, 72–105 and accompanying text.

  173. p.185 “Fully expecting the jury…Carlos DeLuna to die.”

    Application for Subpoena of S.O. Woods, Texas Dep’t of Corrections, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. May 26, 1983) , at 1 (subpoenaing S.O. Woods, Texas Dep’t of Corrections, to provide certain records for use against Carlos DeLuna at the sentencing stage of his capital trial);

    Application for Subpoena of Juanita Garcia, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983) at 1 (subpoenaing Juanita Garcia to testify against Carlos DeLuna at the sentencing stage of his capital trial);

    Application for Subpoena of Lucinda Garcia, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 9, 1983) at 1 (subpoenaing Lucinda Garcia for the same purpose).

  174. p.185 “When Lawrence later submitted…’was not usable.’”

    Letter from Judge Walter Dunham, Jr. to Judge Robert Barnes (Sept. 27, 1983) at 1 (asking the local judge responsible for paying court-authorized investigators to approve and pay invoice from Investigator Horacio Ortiz based on Lawrence’s representation that “the investigation performed by Mr. Ortiz was necessary even though much of the information developed was not used or, as a matter of fact, was not usable.”).

  175. p.185 “During those weeks…help him find him.”

    See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:23:29 (“Like I said, the only thing he [Carlos DeLuna] ever cooperated on, the only thing, and this was—we’re down to the closing moments of this thing before we went to trial that I was able to persuade him to at least give me a name [Carlos Hernandez's].”);

    James S. Liebman’s Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 3 (“I finally got a name [Carlos Hernandez] from CDL [Carlos DeLuna]. We tried to find him.”);

    infra notes 263–266 and accompanying text; infra Chapter 12, note 42.

  176. p.185 “The only names…night of the killing.”

    See James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 5–6, 7:

    A. We feel there are about four or five witnesses that we have been unable to get ahold of, and I feel the names provided by Mr. De Luna to us and with the investigator working on it, that it’s going to take a short period of time in which we can either locate these witnesses or not . . . .

    Q. [by prosecutor Schiwetz] Mr. Lawrence, when did you—when did your client first tell you of [the Perales sisters]?

    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, 1983] 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.

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:01:48 (“[Carlos DeLuna] had indicated that he was not anywhere near the premises, that he had been at a bowling alley with a girl. . . . [W]e were able to hire an investigator who ultimately tried to follow up on the information that our client had given us concerning his whereabouts.”);

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:39:58–12:40:27 (“Q. You described that the young woman who Carlos DeLuna said he was with at the bowling alley or the skating rink that evening had said that she was instead at a baby shower. A. It turned out that the night that this crime had occurred, she was actually having a baby shower for herself somewhere else.”);

    James S. Liebman’s Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 1, 4 (“When Jim [Lawrence] and I first got this case, when we started out, CDL [(Carlos DeLuna) was saying] he wasn’t even there. He went to the bowling alley with a girlfriend. It took as a great deal of effort to get CDL to tell us more.”; “First, he said he was . . . at roller rink. [But this proved wrong, because the g]irl was having a baby shower [elsewhere that night]. Mary Ann Perales (although [Hector De Peña] at first remembered this as Linda Perales). Our investigator located her.”).

  177. p.185 “Linda Perales did indeed…Manuel DeLuna.”

    See supra Chapter 8, notes 86 and accompanying text.

  178. p.185 “When the out-of-town investigators…when she was younger.”

    Peso Chavez’s Notes on Interview with Linda Perales Ayala, Step-Mother of Pricilla Hernandez Jaramillo and Ex-Wife of Manuel DeLuna (Feb. 22–26, 2004) at 3 (“‘No one ever contacted me about this [DeLuna's claim that he ran into her at the skating rink on the night of the offense] and I didn’t even know Mary Ann [her sister] testified [about it].’ . . . I asked Ms. Ayala if it was possible that she and her sister gave Carlos a ride on the night in question. She stated, ‘I really don’t remember because it was so long ago. But it’s probably unlikely because in 1980 I got married and I never really saw Manuel or Carlos after that. Then in 1983 I had my 3rd child so I probably I would not have been hanging out with them.’”).

  179. p.185 “But she couldn’t remember…at the rink.”

    Peso Chavez’s Notes on Interview with Linda Perales Ayala, Step-Mother of Pricilla Hernandez Jaramillo and Ex-Wife of Manuel DeLuna (Feb. 22–26, 2004) at 3.

  180. p.185 “Linda was sure…Carlos DeLuna’s claim.”

    Peso Chavez’s Notes on Interview with Linda Perales Ayala, Step-Mother of Pricilla Hernandez Jaramillo and Ex-Wife of Manuel DeLuna (Feb. 22–26, 2004) at 3 (“No one ever contacted me about this [DeLuna's claim that he ran into her at the skating rink the night of Wanda Lopez's murder,] and I didn’t even know Mary Ann had testified.”).

  181. p.185–186 “She was seven months…that very night.”

    See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:01:48:

    And when we first discussed this with our client he had indicated that he . . . had been at a bowling alley with a girl. And, eventually, we were able to convince the district judge to allow us to hire an investigator, which was like pulling teeth at the time. But we were able to hire an investigator who ultimately tried to follow up on the information that our client had given us concerning his whereabouts. It was later determined that he was not at the bowling alley, but in fact the girl he contended he was visiting with was, in fact, at the time that the crime occurred, having a birthday shower, I mean a baby shower. She was expecting or getting ready to have a child.

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:39:58–12:41:46:

    Q. You described that the young woman who Carlos DeLuna said he was with at the bowling alley or the skating rink that evening had said that she was instead at a baby shower.

    A. It turned out that the night that this crime had occurred, she was actually having a baby shower for herself somewhere else.

    Q. Where did you learn that information? Was that part of your investigation?

    A. That was part of, some of the facts that our investigator came up with as we were trying to, as we were investigating the facts that our client gave us.

    James S. Liebman’s Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 1, 4 (“When . . . I first got this case, when we started out, CDL [Carlos DeLuna] [was saying] he . . . went to the bowling alley with a girlfriend. It took as a great deal of effort to get CDL to tell us more.”; “First, he said he was . . . at roller rink. [But this proved wrong, because the g]irl was having a baby shower [elsewhere that night]. Mary Ann Perales . . . . Our investigator located her. We knew before trial what her testimony would be.”);

    James S. Liebman’s Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) (offering Lawrence’s opinion that the testimony of Mary Ann Perales damaged Carlos DeLuna’s defense);

    see also Mary Ann Perales, Witness Against Carlos DeLuna, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 451 (“Q. I want to direct your attention back to the 4th day of February of 1983 and I want to ask you if you had occasion to meet Mr. De Luna here at the Gulf Bowling Alley or Gulf Skating Rink or someplace like that? A. No. I was attending a baby shower. Q. Just a second. Your answer is no? A. No. Q. At any time on that day did you talk to him or run around with him at all? A. No.”).

  182. p.186 “She said she had photos to prove it.”

    Steve Mills & Maurice Possley, ‘I Didn’t Do It. But I Know Who Did,’ Chi. Trib., June 25, 2006, at 7, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=5 (“Convinced that De Luna was a liar, Schiwetz had reason to be confident going to trial in July 1983. He effectively destroyed the part of De Luna’s alibi that on the night of the crime he was at the roller rink talking to two women. Under Schiwetz’s questioning, one of the women testified that she was not at the rink but at her baby shower. And she had photos to prove it.”). Archived at: http://perma.cc/M5SM-UBN5

  183. p.186 “Even though Lawrence…July 1983 trial…”

    See Application for Subpoena of Various Individuals, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 1 (subpoenaing, among others, Mary Ann Perales; on the handwritten list of witnesses being subpoenaed, the name “Linda” is written, then crossed out, just above the name “Mary Ann Perales”).

  184. p.186 “…they told the State’s lawyers what Carlos had said about her.”

    Transcribed Videotape Interview with Mary Ann Perales Benavides, Witness Against Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 11:38:40–11:39:06 (“Q. And what else did the police tell you at that point [when they came to interview her prior to DeLuna's trial]? A. Nothing really, just that, you know, they were sorry that I had to go and appear and stuff, and they more or less kind of could tell he was lying, you know. Cause apparently he had mentioned a lot of other people, too, as alibis, and apparently they knew he was lying, but I had to show up anyway. Q. And when you say ‘he was lying’ you’re referring to? A. Carlos DeLuna.”); Peso Chavez’s Notes on Interviews with Mary Ann Perales Benavides, Witness Against Carlos DeLuna (Feb. 22–26, 2004) at 2:

    Sometime prior to trial she [Mary Ann Perales] was contacted and informed that Carlos DeLuna was alleging that her and her sister had given him a ride on the night in question. Ms. Benavidez [Mary Ann Perales] stated, “I don’t remember who it was that came to my house and told me I was going to have to go to court and testify. They told me that they knew Carlos was lying but that I would have to testify anyway and that he was trying to make-up other alibi’s and none of his stories were making sense.”

    Sita Sovin & Lauren Eskenazi’s Notes on Interviews with Mary Ann Perales Benavides, Witness Against Carlos DeLuna (Sept. 16, 2004) at 3 (“The investigators (police/DA investigators) told Mary Ann ‘we know he’s [CDL] lying, but we need you to testify.’ The investigators said that CDL was lying about other things. Specifically, that he was lying about all kinds of alibis.”);

    see 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 5–7 (“We feel there are about four or five witnesses that we have been unable to get ahold of, and I feel the names provided by Mr. De Luna to us [i.e., the names of the Perales sisters] and with the investigator working on it, and that it’s going to take a short period of time in which we can either locate these witnesses or not.”; referring to the Perales sisters as possible “alibi witnesses” identified by DeLuna).

  185. p.186 “The prosecutors promptly sent…DeLuna was a ‘liar’…”

    See supra note 184.

  186. p.186 “…she was not skating at the rink that night.”

    Mary Ann Perales Benavides, Witness Against Carlos DeLuna, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 451 (“Q. I want to direct your attention back to the 4th day of February of 1983 and I want to ask you if you had occasion to meet Mr. De Luna here at the Gulf Bowling Alley or Gulf Skating Rink or someplace like that? A. No. I was attending a baby shower. Q. Just a second. Your answer is no? A. No. Q. At any time on that day did you talk to him or run around with him at all? A. No.”).

  187. p.186 “They expected law enforcement to reciprocate.”

    James S. Liebman’s Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4 (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.”);

    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”).

  188. p.186 “Unlike the defendant…provide a defense.”

    See, e.g., Kyles v. Whitley, 514 U.S. 419, 433 (1995) (“[F]avorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”) (internal citations and quotation marks omitted); Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”); see also Francis v. Franklin, 471 U.S. 307, 314 (1985) (“Mandatory presumptions [in jury instructions] . . . . violate the Due Process Clause if they relieve the State of the [entire] burden of persuasion on an element of an offense.”); Sandstrom v. Montana, 442 U.S. 510, 523 (1979) (invalidating a jury instruction because it did not require the state to prove beyond a reasonable doubt every element of the offense charged).

  189. p.186 “Police and prosectors…when they do find it.”

    See supra notes 45–48, 187 and accompanying text.

  190. p.186 “The doctor said…’his being retarded.’”

    Dr. Joel Kutnick, Psychiatrist, Psychiatric Evaluation of Carlos DeLuna at 3–4 (June 14, 1983) (“Specifically, I was interested in the background information in terms of how far this defendant got in school, and whether there was a question of his being retarded. Mr. Schiwetz did not have this information, but stated he would try to supply it to me if he got it. So far I have not heard back from Mr. Schiwetz, and feel that this information is just not obtainable.”).

  191. p.186 “Kutnick asked prosecutors…DeLuna’s school records.”

    See Dr. Joel Kutnick, Psychiatrist, Psychiatric Evaluation of Carlos DeLuna at 3–4 (June 14, 1983).

  192. p.186 “But as he said…’not obtainable.’”

    See supra note 190.

  193. p.187 “Within hours, they were handed…finishing middle school.”

    See supra Chapter 5, notes 117–125 and accompanying text.

  194. p.187 “DeLuna’s juvenile records showed the same thing.”

    See supra Chapter 5, notes 141–143 and accompanying text.

  195. p.187 “Within a month…call to the police.”

    See Letter from Jack Hunter, First Assistant District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Mar. 4, 1983) (“Also I have in my possession a tape recording between the victim and the Defendant [sic—the killer, not necessarily the defendant]. You may come by my office any time prior to March 18th, 1983 and the tape will be available for your inspection.”).

  196. p.187 “The defense lawyers had asked…February 4.”

    Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 1 (asking Corpus Christi Police Department “Capt. Jones” to produce at trial “[t]ranscripts of all incoming calls and outgoing broadcasts made concerning the reports and whereabouts of any suspect or suspicious persons reported via the Corpus Christi Police department arising out of the robber of a Sigmor Shamrock Station, 2602 SPID, Corpus Christi, Texas, on February 4, 1983″);

    see Robert Klemp, Corpus Christi Police Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 377 (noting that the Corpus Christi Police Department taping system in 1983 recorded “all the dispatching, all the radio broadcasts, incoming and outgoing and all the telephone conversations both emergency lines and in-station extensions”).

  197. p.187 “‘[W]e originally tried…erased and reused.’”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 13:12:14 – 13:14:15:

    We only had, during the course of the—part of the evidence that we had was the one tape where she ultimately was stabbed in the process of still trying to talk to the dispatcher. But we were not aware of any other taped conversation. And I know we had a hard time, when we originally tried to get those tapes, or a tape, we were hard pressed to do it because they kept telling us, by the time we were trying to find evidence and subpoena evidence, they kept trying to say the police only keep this log tape for 30 days, then it’s erased and they start all over again. . . . One of the hardest pieces of evidence that we acquired during the course of the trial was a tape recording of the master tape that was kept by the police dispatcher. And in the beginning when we were trying to get a copy of the taped conversations with the dispatcher, we were being told that, by the time we got to it, it had already been erased, the explanation being that the master tape was only kept for 30 days and then it was erased and reused. But ultimately we discovered that that part of their conversation [the 911 call] was, in fact, still on the master tape and we were able to get a duplicate cassette of the recording that took place.

  198. p.187 “In the end…ninety-second 911 call.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 13:13:25 (noting that Wanda Lopez’s 911 call was still on the master tape and available as a duplicate cassette).

  199. p.187 “A police communications technician…played at trial.”

    The police technician, Robert Klemp, had testified: “The original [master] tape was placed in [a] file in the file cabinet and I separated it from our normal file tapes for evidence purposes and I made this cassette [of the 911 call], this cassette tape off a cassette recorder which reproduced it off the master tape.” Robert Klemp, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 378–80 (introducing State’s Exhibit 2, a cassette with the 911 “call made in reporting a man with a knife at 2602 SPID . . . . end[ing] at the point where that call end[s],” and revealing that Lt. Klemp made the cassette on June 29, 1983).

  200. p.187 “The technician testified…hung up the phone.”

    Robert Klemp, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 379 (“Q. Have there been any—well, let me qualify that. That tape is a recording, is it not, of the tape of the call made in reporting a man with a knife at 2602 SPID, is it not? A. That’s correct. Q. It ends at the point where the call ends, does it not? A. Yes.”).

  201. p.187–188 “His copy includes…manhunt as well.”

    See supra Chapter 2, notes 109–115 and accompanying text.

  202. p.188 “When Schiwetz was asking…preparing for trial.”

    See supra Chapter 2, note 111 and accompanying text.

  203. p.188 “But police and prosecutors never…De Peña or Lawrence…”

    See supra notes 195–200 and accompanying text.

  204. p.188 “The defense lawyers and jury…8:11 P.M.”

    See supra Chapter 2, notes 137–139, 155, 163–165, 174, 178–179, 195–201 & Table 2.1, 2.3.

  205. p.188 “They never heard Sergeant Meija…8:05 P.M.…”

    See supra Chapter 2, notes 92–101, 144–146 and accompanying text & Table 2.1, Figure 2.3; infra Chapter 13, notes 93–98 and accompanying text; see also Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 13:09:37–13:13:10:

    Q. One of the things you or Mr. Lawrence brought out at trial——I remember it in the transcript——was some cross-examination of the police. There was an officer, I think it’s Sergeant Mejia, who had been one of the earliest ones on the scene and took some of the early witness statements. And all of the information they had was that a man had been seen fleeing north, immediately behind the station, up Dodd, and towards, into that neighborhood.

    A. The residential area, yeah.

    Q. And there was a description given of a man who looked like he was a derelict or homeless. Gray sweatshirt, running in that northerly direction. And there were other sightings of somebody. And then the Arsuagas come in from that Phase [Three] nightclub that was a little bit further east from the station, a couple blocks east from the station. And they gave a definition of somebody in a white, button-down dress shirt and black slacks or dark slacks. At that point, attention switched from the person with a gray sweatshirt—

    A. The homeless-looking guy to the guy with the white shirt. No, I’d have to say, even to this day, I do not recall any efforts on the part of the state to provide any assistance in that. . . . We only had, during the course of the—part of the evidence that we had was the one tape where she ultimately was stabbed in the process of still trying to talk to the dispatcher. But we were not aware of any other taped conversation. And I know we had a hard time, when we originally tried to get those tapes, or a tape, we were hard pressed to do it because they kept telling us, by the time we were trying to find evidence and subpoena evidence, they kept trying to say the police only keep this log tape for 30 days, then it’s erased and they start all over again.

  206. p.188 “…’another’ person, different…behind the station.”

    See supra Chapter 2, notes 142–154, 160–163 and accompanying text & supra Table 2.1.

  207. p.188 “And they never had…time of his arrest.”

    See supra Chapter 2, notes 253, 262–267 and accompanying text; supra Chapter 5, notes 133–140 and accompanying text & Figures 5.3, 5.4; infra Chapter 13, notes 69–70, 81–82 and accompanying text.

  208. p.188 “The defense lawyers and jury…entire search party.”

    See supra Chapter 2, notes 185–239 and accompanying text.

  209. p.188 “They also didn’t know…the fleeing killer.”

    See supra Chapter 2, notes 206–214 and accompanying text.

  210. p.188 “On the contrary…’No.’”

    Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 115−16:

    A. Yes, she [dispatcher] said a suspect had been seen or a subject had been seen running from an area, say, west of Franklin towards Franklin, there had been a subject seen running between houses, different people had called and that someone had seen him lying under trucks.

    Q. Somewhere on Franklin Street; is that correct?

    A. Towards—in that area.In that area.

    Q. Was there any other suspect seen at any other area, so far as you know?

    A. Not to my knowledge.

    Q. Did the dispatcher disseminate any information regarding other suspects in other areas other than the one on Franklin?

    A. No.

  211. p.189 “Before evaluating…’back’ to the Sigmor.”

    See supra Chapter 2, notes 185, 158, 269–271 and accompanying text; Chapter 3, notes 46–57 and accompanying text.

  212. p.189 “Left in the dark…eyes of the jury.” 

    See, e.g., John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 76–77 (“Q. [by James Lawrence conducting cross-examination] Okay. But nothing stands out in your mind as a unique feature about this person you saw for three seconds [jogging past the Phase III club]. A. No, sir. Q. And yet you were able to come in or so you have testified that the person sitting here on my left is the exact person that you saw for three seconds. A. Yes, sir.”);

    John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 256–57:

    Q. [by by James Lawrence conducting cross-examination] So that if we believe your statement, we find that the first time you see this person running is he’s already running beside Phase III, he never did even start out from the Sigmor Service Station as you have just indicated by your testimony; isn’t that correct, sir?

    A. That’s correct from what the statement says, yes.

    Q. Okay. You never made any mention in your statement that all of a sudden in your mind say, ‘”My gosh, that’s a funny time to be jogging,” did you, sir?

    A. No, sir, I didn’t.

    Q. You never said in your statement that he got right in front of you as you pulled in and that you turned on your bright lights, did you, sir?

    A. Not that I can recall.

    Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Trial Test., Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 313–17:

    Q. [by James Lawrence conducting cross-examination] Do you recall the description [of the assailant]?

    A. . . . I believe they told me he was a Hispanic male; approximately five-eight, five nine; black hair. . . .

    Q. When you put a photo lineup together, you try to get the photos to pretty well look alike in the sense that they are taken basically along the same lines, for example, you take a photo of a person, you want to make sure you’re taking it, say, from the chest up, for all practical purposes, that possibly in the background there is a—a height chart in which that person is kind of up against that chart so that when you take his picture, you can see basically how tall he is; is that correct?

    A. That’s true. . . .

    Q. Okay. And . . . do you recall putting in some pictures [in the array of photos shown to the Arsuagas] of people anywhere from a height of six foot four inches to a height of five foot three inches?

    A. . . . [Y]es. . . .

    Q. And looking at photograph number one [in the array], you have an individual there that the height would show somewhere maybe six foot three, six foot four inches; is that correct?

    A. I would say six foot four, yes.

    Q. Okay. And looking at picture number two, you have somebody in there that shows a height of about six foot one; is that correct.

    A. That’s true.

    Q. And in photograph three, you have a person whose height is five foot three; is that correct?

    A. That’s true. . . .

    Q. Okay. And in photograph number [five], you have a person, that because of the hair there, looks like five foot nine or so, five foot nine and a half or so.

    A. I would say five foot ten.

    Q. Okay. And whose photograph is number five?

    A. Photograph number five is the Defendant, Mr. Carlos De Luna. . . .

    Q. Okay. So basically in this photographic lineup, we have only two people, numbers five [DeLuna] and six, that are anywhere near the height that was given to you by the witnesses in order to determine the suspect. Is that correct?

    A. That’s true.

    James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 497, 502 (“What do you really have? You have in effect eyewitness testimony. If I were to ask you what was John Arsuaga wearing when he testified, how many of you could get that straight?”; “[T]he next testimony we had were the Arsuagas. And I think if that testimony is believable, everything that they said, I think there’s something wrong. . . . He said that he was scared to view the suspect when they brought him back. He didn’t seem scared in here, I don’t understand that.”).

    For additional impeachment of Olivia Escobedo in regard to her conduct of the photo array that triggered John Arsuaga’s identification of Carlos DeLuna, impeachment of John and Julie Arsuaga attacking their identifications of DeLuna, and closing argument attacking the Arsuagas’ identifications, see John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 75–77, 82–85, 91–96;

    John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 252–62, 256–57;

    Julie Arsuaga, Witness to Man Running Near Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18 , 1983) at 353–62;

    Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Trial Test., Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 312–20;

    James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 497–98, 502–05, 525–26.

  213. p.189 “Lawrence didn’t ask…show-up identification.”

    Mot. to Suppress Identification, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Jun 2, 1983) (asking the court to suppress John Arsuaga’s photo-array identification of Carlos DeLuna but not asking the court to suppress the show-up identifications of DeLuna by Kevan Baker and George Aguirre);

    Tr. of Pretrial Hr’g, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 121 (“The Court: You filed a motion to suppress [only John Arsuaga's] identification, in-court identification. Mr. Lawrence: All right. The Court: And that I ruled on against you.”).

  214. p.189 “Describing the well-dressed DeLuna…north on Dodd.”

    See supra Chapter 2, notes 20–41, 70–74, 92–105, 137–152, 163 and accompanying text.

    214a.  See Terry Moran, The Wrong Carlos: Did Texas Execute an Innocent Man?, ABC Nightline, July 18, 2013, at 7:18-7:44, available at http://abcnews.go.com/Nightline/video/wrong-carlos-texas-execute-innocent-man-19708635. Archived at http://perma.cc/8GLA-868F

    Terry Moran (voiceover): DeLuna’s defense lawyer James Lawrence met us in the same courtroom where DeLuna was tried and sentenced to death. Lawrence says he tried his best.

    James Lawrence: What did I have to counteract anything [the state presented]—anything? Had we had that other tape, good gosh, [then] I got something! Because then you could have said, “Was that the Carlos Hernandez we’ve been looking for? Yes!”

  215. p.189 “He was truly angry…played at trial.”

    James S. Liebman’s Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 3 (“I was just appalled that there had been an earlier call and (at trial) we hadn’t heard of it. We were appalled that dispatcher didn’t send someone out [after Wanda Lopez's first 911 call].”).

  216. p.189 “Rene Rodriguez was…Wanda’s young daughter.”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (December 8, 2004) at 05:36:44–05:38:16 (“It was kind of a novel thing back then, that type of premises liabilities case, especially one involving a crime . . . . There’s some cases that you take and you just have a gut. Although everybody is telling you, ‘You’re crazy. You’re wasting your time, you’re wasting your money. You know, you’re going to give these people false hope.’ It was just one of those cases where you just had a gut.”).

  217. p.190 “Instead, he got…killing of Wanda Lopez.”

    Pl.’s Second Request for Production, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. Mar. 25, 1987) at 1–3.

    See also Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (December 8, 2004) at 05:45 (“Yeah, I obtained records from the police department, trying to get the criminal activity of the area.”).

  218. p.190 “The evidence included…the sidewalk outside…”

    See Crime Scene Photograph 25500028, Corpus Christi Police Dep’t (Feb. 4, 1983);

    Crime Scene Photograph 25500030, Corpus Christi Police Dep’t (Feb. 4, 1983);

    Crime Scene Photograph 25500033, Corpus Christi Police Dep’t (Feb. 4, 1983);

    Crime Scene Photograph 25500037, Corpus Christi Police Dep’t (Feb. 4, 1983);

    see supra Chapter 10, notes 113–133 and accompanying text & Figures 10.5, 10.6, 10.7 A version of Crime Scene Photograph 25500032, Corpus Christi Police Dep’t (Feb. 4, 1983), was made an exhibit at the DeLuna trial, but it evidently was cropped slightly on the left and right sides in a way that excised the possible bloody shoe prints on the sidewalk outside the store that appear on the bottom right corner of the original photograph. See State’s Ex. 4, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983).

  219. p.190 “…a clump of the victim’s hair…”

    See Crime Scene Photograph 25500028, Corpus Christi Police Dep’t (Feb. 4, 1983);

    Crime Scene Photograph 25500030, Corpus Christi Police Dep’t (Feb. 4, 1983);

    supra Chapter 10, notes 85–86 and accompanying text & Figure 10.7.

  220. p.190 “…full panoramas of the blood stains and spatters behind the counter…”

    See Crime Scene Photograph 25500007, Corpus Christi Police Dep’t (Feb. 4, 1983);

    Crime Scene Photograph 25500008, Corpus Christi Police Dep’t (Feb. 4, 1983) (Feb. 4, 1983);

    Crime Scene Photograph 25500031, Corpus Christi Police Dep’t (Feb. 4, 1983);

    supra Chapter 4, notes 46, 54–55, 65–68, 70–77 and accompanying text & Figures 4.2, 4.3; Chapter 10, notes 33–64 and accompanying text and Figures 10.1, 10.3, 10.6, 29.

  221. p.190 “…the lead detective standing on top of evidence.”

    See Crime Scene Photograph 25500019, Corpus Christi Police Dep’t (Feb. 4, 1983);

    supra Chapter 10, notes 98–99 and accompanying text & Figure 10.3; see also Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:12:39 (discussing conversation Boudrie had with Rene Rodriguez at the time she was covering the Vargas family lawsuit against Diamond-Shamrock for a local TV station, about the “shoddy police work” he had documented in the civil case, which included “Olivia Escobedo . . . stepping around in the evidence” and “might have said that something had been contaminated” and “that there had been some shoddy police work”).

  222. p.190 “Rodriguez also had Shamrock records…”

    See supra Chapter 4, notes 27, 28.

  223. p.190 “…showing that employees…any one time.”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (December 8, 2004) at 6:01:42 (“I remember that it was either Hector de Peña, who later became a judge, after many years, or Jimmy Lawrence, James Lawrence. It could have been both of them because they were working together on the capital murder case. They were both court appointed. And I remember, because of something that they had heard, they came to my office and wanted to look at the file. And looking at this file, I remember them saying, ‘We didn’t get any of this, shit.’”);

    Pl.’s Ex. 4, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988) (showing blood on counter and the spatter behind it);

    Pl.’s Ex. 13, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988) (showing possible bloody footprint outside the store);

    Pl.’s Ex. 22, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988) (showing bloody footprint inside the store );

    Pl.’s Ex. 26, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988) (showing blood spatter behind the counter and a clump of the victim’s hair);

    Pl.’s Ex. 29, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988) (reporting that Sigmor’s “Rules & Regulations For Personnel” prohibited keeping more than $75 in the cash drawer at any one time).

  224. p.190 “‘We didn’t get any of this shit,’ De Peña told Rodriguez.”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (December 8, 2004) at 6:01:42.

  225. p.190 “‘It was a result’…at DeLuna’s trial.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:01:03 at 12:31:00-12:34:37:

    Q.At the trial, the police played a tape of Miss Lopez calling the police about a man inside the store with a knife. But did you subsequently learn that there were additional efforts that Miss Lopez made . . . to have the police—

    A. Apparently, my understanding was, that more than one phone call was made to the dispatcher asking that a police officer be called to the spot. . . .

    Q. And what was the problem, what were they complaining about towards the city?

    A. They [the Corpus Christi Police Department dispatcher and 911 operator] just kept contending they wanted the girl to give them a description rather than send someone out [in a squad car]. I don’t know, I ultimately don’t know if it was whether or not somebody was available, but generally there was always officers patrolling that part of Padre Island Drive. In fact, my understand is, from the record that once they heard her screaming or whatever, you know, a police officer arrived within 4 or 5 minutes or less to the gas station. And I think that’s why the argument was, ultimately, had the officer arrived when she first contacted them, conceivably this would have been prevented.

    Q. Ok. I’m going to read another one of these [passages from notes from a prior interview with De Peña] that we were talking about: “Mr. De Peña remembers that there were two phone calls from Lopez to the police. The first one was when the customer outside by the pump came in and warned Ms. Lopez. The second was when the perpetrator came in. He remembers that this information came out from the civil suit [brought by the Wanda Lopez's family against Diamond Shamrock]. At trial they did not know about the first call, only the second call. We didn’t hear about the first call until the civil suit was litigated. Rene[] Rodriguez handled that suit.” Is that accurate?

    A. To the best of my recollection, that’s accurate. We did not learn about the first phone call until, you know, after the criminal trial had been held. . . . Basically, I think I learned it through the publication that came out in the press as the [civil] case was being, as the case proceeded in the course of its trial. I think it was a result of the newspaper reporting what was transpiring in the courtroom and what the testimony was. And it was, I believe, through the newspapers’ description of some of the testimony that I learned that apparently not just one phone call had been made, which was the copy of the recording we had, but there had been an earlier phone call asking for assistance from the police department.

    Q. What was your reaction when you heard that?

    A. . . . [C]oncern that we didn’t have access to it at the time [of DeLuna's trial].

  226. p.190 “He turned the city…who was to blame.”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (Dec. 8, 2004) at 06:05:11–06:08:40:

    I remember I hired an investigator. I remember getting a lot of criminal records, the calls that were made [about crimes committed] in the whole area for a period of time, I don’t remember if it was two years or three years before [inaudible]. And there were computer pages and pages of calls [about crimes]. And a lot of them at that Wolfies. . . . I’d go to the Police Department and demand stuff . . and I would talk, I mean, I went to the neighborhood. I went knocking up and down on the doors and stuff.

  227. p.190 “He found police records…called 911 for help.”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (December 8, 2004) at 05:45:[05]–05:46:22:

    A. Yeah, I obtained records from the police department, trying to get the criminal activity of the area. There was a lot of crime in that area. Mostly assaultive type crimes too. I mean, there were a lot of shooting[s] in that bar, next to, Wolfies, it was called. There was shootings, I think even one of the Banditos got killed there [at Wolfys] at one time. A lot of stabbings. Just a lot of assaultive type crimes in that whole area.

    Q. Were there any crimes that had affected the Diamond Shamrock?

    A. Yes, there were others. Well, there were basically fights that ended up from the bar, in the Shamrock, you know, those types of things. I don’t remember right now whether there was any robberies or such at the Shamrock. I don’t remember. There may have been.

  228. p.191 “Olivia Escobedo…an investigator years later.”

    Tamara Theiss’s Notes of Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27. 2005) at 2 (“I remember listening to Ms. Lopez screaming on the tape when DeLuna grabbed her. She had called once to say that there was a man outside with a knife, then I remember when she called back, trying to talk in a low voice so DeLuna wouldn’t know who she was talking too. Then you could hear her all of a sudden saying she would give him what he wanted, then her screaming as he attacked her.”).

  229. p.191 “‘I remember listening to Ms. Lopez screaming on the tape,’ Escobedo said.”

    See supra note 228.

  230. p. 191 “On the second call…’screaming as he attacked her.’”

    See supra note 228.

  231. p. 191 “When the private…struggling with someone.”

    See Supplementary Call Card #1, Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (reporting that the “clerk” from Shamrock—Wanda Lopez—called the police department at 8:09 p.m.).

  232. p. 191 “The record…action initiated police contact.”

    Supplementary Call Card, Corpus Christi Police Dep’t (Feb. 4, 1983) at 1.

  233. p. 191 “He said he warned…knife in his pocket…”

    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 (“Aguirre went inside to warn Lopez . . . . She said she would call the police, and Aguirre . . . left. When Lopez did call, a dispatcher said officers could do nothing unless the man came inside. Minutes later, when he did, Lopez redialed police, and dispatcher Jesse Escochea took the call.”); supra Chapter 2, notes 75–86 and accompanying text; infra note 230 and accompanying text. Archived at: http://perma.cc/M5SM-UBN5

  234. p. 191 “…man with the knife was still outside.”

    George Aguirre, Witness to Events Outside Shamrock Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (“While paying the lady I told her about the man with the knife outside. . . . So I heard her call the police and when she did I started to walk out toward my van and I seen the man I just spoke of in this statement as having a knife . . . .”);

    George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 16–17 (“Q. Let me stop you just for a second there. When you went to talk to the attendant, did you go inside the station . . .? A. I went inside, she was behind the counter. . . . I told her that the guy outside had a knife, and she asked if he was with me, and I said no, he wasn’t. . . . So that’s when she got on the phone and phoned the police while she was writing out my ticket [for gas].”);

    George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 226 (“Yes, I told her that the guy outside had a knife in his pocket and it was open and she asked if he was with me and I told her no and I told her I was going to go down the street and call the police. And she said, ‘For real?’ and I said, ‘Yes.’ And she says, ‘Well, I’ll call them anyway.’ So she got on the phone and she called the police station.”).

  235. p. 191 “The call…already inside the store.”

    Transcript of Wanda Lopez’s Phone Call to Corpus Christi Police Dep’t on Feb. 4, 1983 at 8:09 (Feb. 10, 1983) (“W. Lopez: Yes. Can you have an officer come to 2602 SPID. I have a suspect with a knife inside the store.”).

  236. p. 191 “Although no recording…reconstruct it later on…”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:07:11–3:10:16:

    I remember during the civil suit [brought by the Wanda Lopez's family against Diamond Shamrock], at the filing, that some of the points made were that there were two phone calls that Wanda made to 911. And that the dispatcher, and perhaps the police, failed to respond in a manner or quickly enough or take it seriously. Just telling her, “Call us back if there’s more trouble,” was kind of the answer she got initially. There was, allegedly, some negligence by the police department and the dispatcher. Again, this was the civil suit . . . . The prosecution played the 911 tape[] of Wanda Jean Lopez’s call to police [on] the night she was killed. Of course, that made the headlines, it was such a compelling part of the prosecution’s case. But during the civil suit, that was brought up again, and I remember we got to listen to the tapes again. The initial phone call, I remember Wanda is saying, “There’s a suspicious . . . .” People outside the store told Wanda—and this is what she’s relaying to the police—that there’s a guy out there with a knife, drinking a beer and kind of playing with the knife. “What should I do? I think he might want to come in and rob me. And the people told me, the people outside who saw him said I should call the police.” And they said, “Well, what’s he doing now?” She said, “Well, he’s just still standing outside. He hasn’t come in the store.” And I think I recall they said, the dispatcher tells Wanda, “If he gets closer or something else happens, or if he comes in, or if he threatens you”—I’m not sure of the exact words—”then call us back.” Rather than dispatching a unit to say, “We should check this out for you,” they tell her to call back. So she hangs up and at that point you hear the second call, and the second call says, “He’s in the store, and he’s coming towards me.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:31:20–12:31:40 (“Apparently, my understanding was, that more than one phone call was made to the dispatcher asking that a police officer be called to the spot.”);

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:33:05–12:34:13:

    We did not learn about the first phone call until, you know, after the criminal trial had been held. . . . I believe . . . Basically, I think I learned it through the publication that came out in the press as the [civil] case [brought by the Wanda Lopez's family against Diamond Shamrock] was being, as the case proceeded in the course of its trial. I think it was a result of the newspaper reporting what was transpiring in the courtroom and what the testimony was. And it was, I believe, through the newspapers’ description of some of the testimony that I learned that apparently not just one phone call had been made, which was the copy of the recording we had, but there had been an earlier phone call asking for assistance from the police department.

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:04:44–12:05:10:

    The young lady [Wanda Lopez], having been warned of somebody being out, you know, standing around watching, apparently tried to contact the police. And it was during the course of this, that she kept calling, telling them to send someone out, they kept trying to get the girl to give a description, prior to the time of the arrival of any kind of police unit. And she kept saying, well, “he’s closer,” or, “he’s here,” and finally she said, “He’s inside,” or something along those lines.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 13:14:15–13:16:06:

    Q. And then subsequently, as a result of the civil suit [brought by Wanda Lopez's family against Diamond Shamrock], you learned that there was even an earlier phone call that had also been preserved and was available at that point.

    A. Correct.

    Q. . . . [W]hat did you learn, even after the criminal case, regarding the tape?

    A. . . . that there was apparently more than one phone call that was made to the dispatcher, and my recollection being that I learned this through the publication of [information about] the civil trial that came out in the papers.

    Transcribed Videotape Interview with Richard Louis Vargas, Brother of Wanda Lopez, in Corpus Christi, Texas (Dec. 4, 2004) at 06:57:13–06:57:20 (“I believe there was more than one 911 call.”)

  237. p. 191 “‘Call back…if he comes inside.’”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (Dec. 8, 2004) at 5:48:34–5:49:20:

    [S]he hears from a customer outside that there is a man out there with a knife. . . . She calls up the police and says, ‘Hey, there’s somebody outside . . . a scruffy looking man outside with a knife.’ And then, they say, ‘If he comes inside,’ . . . ‘if he does anything . . . call us back.’ . . . And then she calls . . . back, and she’s trying to hide the fact that she’s on the phone with the police . . . when this scruffy looking man with a knife is there.

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (Dec. 8, 2004) at 5:51:22–5:52:13:

    [A] customer came in to tell her that there was someone outside with a knife, and they looked like [kind] of scruffy. She called the cops, they basically tell her, the dispatcher tells her, ‘just call back, he’s not doing anything to hurt you?’ ‘No, no.’ ‘Call back if you see anything unusual.’ Next thing she knows the guy’s coming in, she sees the knife so she calls, but she can’t really say anything, and they start asking her all these crazy questions, about, you know, describing the fellow. And the next thing you know it, in the middle of all this she starts screaming, and I’m assuming that’s when he’s cutting her, with the knife;

    see also Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas(Feb. 28, 2005) at 03:08:04–3:10:16.

  238. p. 191 “Customers came and went.”

    George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Neuces Cty., 28th Dist. Tex. July 18, 1983) at 231–32 (“Q. When you left, you actually left the station, were three people in that Sigmor Service Station along with the clerk? A. Yes. The two were getting ready to leave, they were paying for gas.”);

    Closing Statement of Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 477 (“[Aguirre] . . . testified there was two other people in the store at the time he started to leave and he saw the man he had seen outside start walking in as he was leaving, which puts three people in the store at the time that Mr. Aguirre is leaving. There were two people standing up by the counter, and then the man who was walking in.”);

    see also George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Neuces Cty., 28th Dist. Tex. June 20, 1983) at 17–18 (“A. And so I signed my ticket and I got it and I started walking out when I was about halfway to my van, I saw him [the man outside] . . . .”).

  239. p. 192 “Finally, Escochea…picked it up.”

    James S. Liebman, Outline of the DeLuna Investigation (Nov. 5, 2005) at 68, 131 n.227 (“As luck would have it, when Lopez did call back, dispatcher Escochea, not the 911 operator, answered the phone (though it was not his job to do so), preventing Lopez from picking where her prior call left off.”; “Escochea told our investigators that he was a dispatcher, not an operator, and was not supposed to answer the phone. He only did so, and took Lopez’s second call, because the light on one of the 911 lines on his phone kept flashing for such a long time without being picked up that he decided to help out.”).

  240. p. 192 “To Escochea…’something had gone wrong.’”

    Cindy Tumiel, Convicted Killer Executed After Courts Reject Appeals, Corpus Christi Caller-Times (Dec. 7, 1989) (quoting Escochea, by then a Los Angeles Police Department dispatcher):

    [Escochea] recalls the event as one of the most memorable in his 13 years as a dispatcher. Lopez had called police to report that a man with a knife was inside the store. “It seemed like a routine call up until the time she started screaming. That’s when I knew something had gone wrong” . . . “It wasn’t until a police unit arrived [that Escochea knew Wanda Lopez was] wounded.” . . . “That’s when we found out she was injured,” he said. :That’s when our adrenalin got pumping. We had every unit in the city looking for him (DeLuna).”

  241. p. 192 “At first…Wanda’s ‘attitude.’”

    See supra Chapter 2, note 118 and accompanying text.

  242. p. 192 “‘But they tell her…it looks serious.’”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (Dec. 8, 2004) at 05:49:53–05:52:13:

    [W]hen she [Wanda] first called . . . . And I remember also that because of where this place [the Sigmor Shamrock] was at, police would come every once and a while and would get off and have coffee and knew Wanda. So, a lot of these cops knew that she was alone. So when she called, telling them where she was at and what she saw, I mean, the dispatcher, the police, everybody know where she was at, because of that two story lady [advertising Wolfy's] that was right, facing Shamrock. Everybody knew. Everyone that uses the freeway sees it everyday, or they used to see it everyday. So they knew where she was. They knew it was a high crime area. They knew there had been a lot of calls. They knew all that! They tell her, call us back if it looks serious. Like it was no big deal. Some little minimum wage girl calling, concerned about something that’s happening at eleven-o-clock at night in front of a topless place. And it was no big deal to them. And then she when she called back, again, they were asking all these crazy questions instead of telling her to do something. Or, you know, I mean, I don’t know where she could have gone because, like I said, she was trapped. There was no place to run. . . . . [A] customer came in to tell her that there was someone outside with a knife, and they [the man outside] looked like [kind] of scruffy. She called the cops, they basically tell her, the dispatcher tells her, “just call back, he’s not doing anything to hurt you?” “No, no.” “Call back if you see anything unusual.” Next thing she knows the guy’s coming in, she sees the knife so she calls, but she can’t really say anything, and they start asking her all these crazy questions, about, you know, describing the fellow. And the next thing you know it, in the middle of all this she starts screaming, and I’m assuming that’s when he’s cutting her, with the knife.

    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 (“Aguirre went inside to warn Lopez . . . . She said she would call the police, and Aguirre . . . left. When Lopez did call, a dispatcher said officers could do nothing unless the man came inside. Minutes later, when he did, Lopez redialed police, and dispatcher Jesse Escochea took the call.”). Archived at: http://perma.cc/M5SM-UBN5

  243. p. 192 “‘Then when she called…[doing] something!’”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (December 8, 2004) at 05:49:53–05:52:13.

  244. p. 192 “When he started …sometimes several at once.”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (Dec. 8, 2004) at 6:01:13–6:03:13:

    I remember during the trial, we started the trial and stuff and they [the police] were coming by a lot which was unusual for them to come and sit down and listen to it. I think they were worried about the bad press. . . . During the civil trial, you know, throughout, I think it lasted about a week, during the course of that trial, police officers or detectives, would come in and watch. And I know that a lot of it was, at some point I knew a lot of these cops. They were concerned about the embarrassment it would cause the police department. And they wanted to make sure that I was going to focus completely on the Shamrock and not too much on them.

  245. p. 192 “Rodriguez knew…message was being sent.”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (December 8, 2004) at 05:49:53–6:03:13.

  246. p. 192 “He’d made a good…brutality cases.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:13:38–03:13:55 (discussing Rodriguez’s ties to the police department and conversations with him at the time of his litigation of the Vargas case against Diamond Shamrock in which he noted concerns that the lawsuit would put the police department in a bad light);

    James S. Liebman, Outline of the DeLuna Investigation (Nov. 5, 2005) at 66 (“Even so, Rodriguez reports that when the trial of the case occurred, many uniformed officers attended, which Rodriguez (who frequently represents the police union and police officers) understood as a show of concern that the Department’s work not be criticized at trial.”).

  247. p. 192 “The police were there…embarrass the department.”

    See supra note 244.

  248. p. 192 “‘They were there…too much on them.’”

    See supra note 244.

  249. p. 192 “Rodriguez did…putting an employee in danger.”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (Dec. 8, 2004) at 05:43:50–05:44:10 (“[T]hey [the Vargas family] got some money. . . . It was substantial, but I remember it was supposed to be a confidential settlement, but I don’t remember. It was a lot. It was a lot.”

  250. p. 192 “The law protects…didn’t sue them.”

    Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (Dec. 8, 2004) at 06:01:42–06:04:03 (“I wanted to [sue the Corpus Christi Police Department], and I thought they were just as culpable as Shamrock. But, in our society, the government has all sort of immunities and protections and they make it almost impossible [to get damages in a lawsuit against the government].”; “I considered suing the Corpus Christi Police Department because I thought they were just as at fault at the time because of their non-reaction to the first telephone call, and even the second telephone call. They didn’t push the button to send the troops in until after she started screaming.”).

  251. p. 192 “Still, it galled…to intimidate him.”

    See supra notes 244–248.

  252. p. 192 “He ddin’t represent cops much after that.”

    See James S. Liebman, Outline of the DeLuna Investigation (Nov. 5, 2005) at 66:

    [A] year after DeLuna was convicted, the Vargas family successfully sued the Shamrock station for negligence—and their attorney, Rene Rodriguez, believes that the police were at least as negligent (though laws immunizing police agencies and officers from damages kept him from suing them). Even so, Rodriguez reports that when the trial of the case occurred, many uniformed officers attended, which Rodriguez (who [had] frequently represent[ed] the police union and police officers) understood as a show of concern that the Department’s work not be criticized at trial—as it reportedly had been criticized in the press.

  253. p. 193 “Cover your ass.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 13:14:15–13:19:38:

    Q. And then subsequently, as a result of the civil suit [by Wanda Lopez's family against Diamond Shamrock], you learned that there was even an earlier phone call that had also been preserved and was available at that point.

    A. Correct. . . . [W]e learned that there was apparently more than one phone call that was made to the dispatcher, and my recollection being that I learned this through the publication of [information about] the civil trial that came out in the papers.

    Q. Do you think there was any possibility the police were concerned about their own image, given that she called earlier and asked for a car to be dispatched?

    A. In all honesty, I’m sure there probably was. In all candor, I believe, I’m sure that the police department was trying to, as we say, C.Y.A.

  254. p. 193 “‘I think…out to find their goat.’”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 13:08:04–13:09:37:

    A. I think it was just because of the heinous manner in which this occurred. I think that when Carlos was arrested, basically, they were just, they were out to find their goat.

    Q. What is your impression about how lengthy or comprehensive an investigation was conducted in this case by the police? In view of what you just said, they found Carlos DeLuna under a truck, and then what happened?

    A. I think that just because of his proximity to the scene, considering the time frame. . . . And ultimately, you know, they found him about a block and a half, hiding underneath the car, and so I think that, just—In light of those flight facts that they assumed that this was the guy they were looking for.

  255. p. 193 “Although DNA analysis…being prosecuted…”

    See, e.g., John M. Butler, Fundamentals of Forensic DNA Typing 4 (2010) (“‘DNA fingerprinting,’ or DNA typing (profiling) as it is now known, was first described in 1985 by an English geneticist . . . [who] found that certain regions of DNA contained DNA sequences that were repeated over and over again next to each other.”).

  256. p. 193 “The bloody murder…Sigmor Shamrock store…”

    See Chapter 10, notes 140–167 and accompanying text.

  257. p. 193 “…detect and link to a human being.”

    See, e.g., John M. Butler, Fundamentals of Forensic DNA Typing 89 (2010) (“DNA results have been successfully obtained from properly preserved biological samples that may even be thousands of years old (e.g., Egyptian mummies and Neanderthal skeletons).”).

  258. p. 194 “The boxes…manner of evidence.”

    The action described in this sentence in text is the only aspect of the investigation relied upon in this monograph that was not contemporaneously documented in writing. The action described were undertaken by the senior author of this narrative, who has a firm recollection of the events.

  259. p. 194 “They soon found…never returned them.”

    See infra Chapter 15, notes 1–9 and accompanying text & Figure 15.1.

  260. p. 194 “In response…had no records.

    See James S. Liebman, Memorandum to File 22 and 23—District Attorney Records (Feb. 22, 2005) at 1 (emphasis in original):

    Originally, NCDA [Nueces County District Attorney's Office] answered LEO [Law Enforcement Office] request [under the Texas Public Records Act for Lopez/CDL documents saying they had nothing. See William Belford's memo in "New Investigation Folder"— . . . NCDA originally said it had no LEOs.doc." That was on 7/13/04 with contact being through [Assistant District Attorney] Lance Kutnick. Then, [Corpus Christi defense lawyer Doug] Tinker’s office contacted the DA [District Attorney] and he [District Attorney] sent them some materials saying that was responsive to . . . Tinker’s LEO request. Those dox [documents] (received by Tinker on 2/24/05) are in File 23. Then JSL [James S. Liebman], Tinker and [Rick] Perez went to the D.A.’s office and met with Kutnick as described below, and found many more dox than had been [previously] provided to Tinker by Kutnick.

    Rick Perez, JSL & Doug Tinker visited Nueces County District Attorney’s office on 2/25/05 [at 1:30–3:40, indicated at the top of this memorandum]. Lance Kutnick showed us a single redwell [folder] of paper documents and let us photocopy everything other than work product.

    He insisted that there was no physical evidence that he knew of in this or any other case. There was no storage area. Doug [Tinker] brought in an old DA investigator still with the office who recognized his own handwriting on some of the documents in CDL’s [Carlos DeLuna's] case to say that they had destroyed all physical evidence previously archived in all prior cases including CDL’s. I showed them [Kutnick and the DA investigator] a document in their own file showing they had checked the evidence out from the district court and thus were obliged not to destroy it and instead to give it back to the court. They joked about someone getting in trouble for this but continued to insist that they had destroyed the [court] exhibits [from DeLuna's case].

    Eventually Doug determined from someone in the DA’s office that a small archive of old exhibit boxes remained on the 5th floor and we were escorted up there. We found evidence mainly from capital and non-capital homicide cases going as far back as 1975 and certainly to 1983, but there were no DeLuna files there.

    I was troubled by the discrepancy between the report of Doug Tinker’s assistant Tina [who had made the records requests for Tinker], earlier in the day, that she had been told [that day] by Kutnick that he had “boxes” of [DeLuna] material in his office that he wanted her to come look at as a follow-up to Doug’s request (on our behalf but not necessarily mentioning our name) to see the record in CDL’s case, because they were preparing to destroy the material. I am sure she [Tina] referred to multiple boxes, not a single redwell. . . . A “decision” to withhold the evidence (if such a decision was made) may have been encouraged by Tinker’s statements to Kutnick while I was there that I was looking for DNA. . . .

  261. p. 194 “A second request…pages of police reports.”

    See Records of the Nueces County District Attorney’s Office Regarding Prosecution of Carlos DeLuna for Murder of Wanda Lopez (Set A Provided by NCDA to Douglas Tinker, Esq. Feb. 24, 2005);

  262. p. 194 “They’d better come look…discard them.”

    See James S. Liebman, Memorandum to File 22 and 23—District Attorney Records at 1 (Feb. 22, 2005);

    James S. Liebman, Outline of the DeLuna Investigation (Nov. 5, 2005) at 96 n.34:

    The day we were permitted to look at the D.A.’s file, the secretary for the Corpus Christi lawyer who was helping us (Douglas Tinker) received a call from A.D.A. Lance Kutnick telling her that he had ‘the boxes’ of DeLuna materials in his office and that we should come review the materials soon because he was planning to discard them. When we arrived later that day, we were presented with a single redwell folder which Mr. Kutnick represented to be the entirety of the D.A.’s file in the case (The D.A.’s office stores physical exhibits in boxes; it stores court filings and other paper records in redwell files.).

  263. p. 194 “When the investigators arrived…early May 1983.”

    See Records of the Nueces County District Attorney’s Office Regarding Prosecution of Carlos DeLuna for Murder of Wanda Lopez (Part 1 of Set B Provided by NCDA to James S. Liebman Feb. 25, 2005);

    17 Records of the Nueces County District Attorney’s Office Regarding Prosecution of Carlos DeLuna for Murder of Wanda Lopez (Part 2 of Set B Provided by NCDA to James S. Liebman Feb. 25, 2005);

    Records of the Nueces County District Attorney’s Office Regarding Prosecution of Carlos DeLuna for Murder of Wanda Lopez (Part 3 of Set B Provided by NCDA to James S. Liebman Feb. 25, 2005);

    Records of the Nueces County District Attorney’s Office Regarding Prosecution of Carlos DeLuna for Murder of Wanda Lopez (Part 4 of Set B Provided by NCDA to James S. Liebman Feb. 25, 2005) (together containing over 200 pages of material, including rap sheets for Carlos Hernandez);

  264. p. 194 “Those items were nowhere to be found.”

    See James S. Liebman, Memorandum to File 22 and 23—District Attorney Records at 1 (Feb. 22, 2005);

    James S. Liebman, Outline of the DeLuna Investigation (Nov. 5, 2005) at 96 n.34.

  265. p. 194 “One other thing…sources on the street…”

    See supra Chapter 9, notes 8–9, 50, 56, 61, 72 and accompanying text.

  266. p. 194 “…Carlos DeLuna had taken the fall.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:55:23–13:08:04:

    Q. [Describing findings of the 2004–05 investigation:] Carlos Hernandez was suspected of the murder of Dahlia Sauceda in 1979. . . . At the time, 1979, early 1980, there were two suspects for that killing, one was Jesse Garza, who was represented by Albert Peña and acquitted for that crime. The other was Carlos Hernandez. Carlos Hernandez’s . . . undershorts were found with her [the victim Dahlia Sauceda], his fingerprint was found in her van. The prosecutor who made the decision as between Jesse Garza and Carlos Hernandez, as to who to prosecute was Ken Botary. The lead detective on the case was Olivia Escobedo . . . I’m just curious what your reaction is to that information.

    A. I wish I had known at that point [when preparing for DeLuna's trial], but I didn’t. I certainly think I could have made for a better case if I could have proved that he wasn’t a phantom, that there was in fact a Carlos Hernandez that existed.

    Q. One of the things that we have also learned is that Carlos Hernandez was also a maestro with a knife. He prided himself on the use of a knife. He always carried a knife. It was a lock blade, eight-inch lock blade knife, that he threatened people, scared people with that knife. And it was with that knife that he was actually arrested with by two other detectives, Paul Rivera and Eddie—

    A. Garza.

    Q. —Garza back in 1979. The victim in that case, the 1979 case, had an “X” carved in her back, and the little toe was essentially cut off with that knife. Would that have been relevant to you in trying to decide whether perhaps that was the right Carlos Hernandez? . . .

    A. Yeah, I think it would have been real important. Because, as you’ll recall, the testimony from the concerned citizen [witness George Aguirre] was the fact that he could see this knife that apparently this guy kept kind of fondling in his pocket. And, obviously, if it was just a tiny little pocket knife or something I don’t think that it would have drawn too much attention. But obviously this was big enough for him to have caught his attention, that he had, appeared to have a knife in his pocket, or was fondling this knife.

    Q. . . . [W]e have been told by a gentleman [Eddie Garza] who was another Corpus Christi homicide, Corpus Christi police department homicide detective in 1983, not assigned to the Shamrock killing, that he was informed by informants in the Hispanic community here in Corpus Christi, that a man by the name of . . . Carlos Hernandez, was stating in the community at that time that he had been the one who killed Wanda Lopez. And that he, this had been reported to the homicide detective, who then reported it to Olivia Escobedo in case she wanted to use it in her investigation of this case. Were you ever informed about that?

    A. No. Neither I nor Jim [Lawrence]. I mean, that obviously would have been a quantum leap in the defense had we gotten this information.

    Q. What’s your reaction to hearing that?

    A. I’m just really sorry we didn’t have it. I think it would have probably had a tremendous difference in the outcome of Carlos’s trial. Because to sit there and perpetuate the idea that this [man named Carlos Hernandez] was just a phantom, that this was just a nonexistent person, by the state, when, in fact, they had information which would have indicated that there really was a Carlos [Hernandez] out there. Leaves a pretty bad taste in my mouth, even now. . . .

    Q. [W]hat is your reaction to an additional piece of information . . . that Carlos Hernandez was arrested on a parole violation on, at the beginning of April, well, I should say, in April of 1983. That is, mid-way through the process of getting from the arrest on February 4th to the trial in July, 1983, and, indeed, Joel Infante took his fingerprint—for some reason, took major case prints of Carlos Hernandez at that point. Did you hear anything about that?

    A. No. . . . I never got any information from the city [police department]. . . . I think, quite frankly, had any of these other sources of information come to us concerning Carlos Hernandez, I think, as I sit here, even today, I think would have made a tremendous difference in the outcome of the case. Had we known that, in fact, there was a Carlos Hernandez who had the propen[sit]y and the tendencies that we know now, in terms of being able to wield a knife and so forth, I think it would have made a great deal of difference in the outcome of the case.

  267. p. 194 “‘Carlos Hernandez’…were looking for.”

    See supra notes 263–66 and accompanying text.

  268. p. 194 “If the defense…7-Eleven with a knife…”

    See supra Chapter 9, notes 73–75 and accompanying text.

  269. p. 194 “…client’s fear and silence.”

    See supra notes 263–66 and accompanying text.

  270. p. 194 “So would knowing…arrested in April.”

    See supra Chapter 9, notes 79–85 and accompanying text.

  271. p. 195 “And that…convenience store robberies.”

    See supra Chapter 9, notes 93–105 and accompanying text.

  272. p. 195 “And that this Hernandez…three years before.”

    See supra Chapter 7, notes 39–43, 88, 109–132, 164, 198–203 and accompanying text; supra Chapter 9, notes 105, 108 and accompanying text.

  273. p. 195 “But none was.”

    See supra note 266.

  274. p. 195 “‘We’re down’…Carlos Hernandez.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:23:29–12:34:56 (“[W]e’re down to the closing moments of this thing before we went to trial that I was able to persuade him to at least give me a name.”).

  275. p. 195 “But those two…would give his lawyers.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:15:05–12:16:53:

    Q. I also took down these notes [from a prior interview with DePeña] . . . “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.

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:18:14–12:19:26:

    A. I worked with a fellow by the name of Ray Flores, who was then the I.D. technician, identification person for the Nueces County Sheriff’s Department. And we culled through the records trying to find all of the Carlos Hernandezes that had at any time been booked in an attempt in an effort to try and locate our Carlos Hernandez. In fact, we got pictures. If I’m not mistaken, I think I even managed to put together a photo lineup of some of the Carlos Hernandez[es] that had been through the system and took it to Mr. DeLuna to see if he would identify the correct Carlos. But it was at that time that he said, “I gave you the name,” and that was as far as he was going to go.

    Q. And, again, would 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 James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 3 (“He gave me a name. We didn’t have doodly, no height, weight, DOB. If I’d had a DOB I could’ve found [him]. We never got that far because we just had a name.”).

  276. p. 195 “He was a ‘dead’ man…’put the bite on’ him.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:15:05–12:16:53, 12:18:14–12:19:26.

  277. p. 196 “De Peña believed…Carlos Hernandez was.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:23:05–12:23:22 (“I believed that he existed, I just felt like Carlos DeLuna was not going to assist me in actually pinpointing who the real Carlos Hernandez was.”).

  278. p. 196 “‘We didn’t have…date of birth.’”

    James S. Liebman’s Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 3 (“He gave me a name. We didn’t have doodly, no height, weight, DOB. If I’d had a DOB I could’ve found. We never got that far because we just had a name.”).

  279. p. 196 “If he had…’could’ve found [him].’”

    James S. Liebman’s Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 3 (“He gave me a name. We didn’t have doodly, no height, weight, DOB. If I’d had a DOB I could’ve found. We never got that far because we just had a name.”).

  280. p. 196 “With their client…blow up their own.”

    Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 458–59 (testifying that prosecutor Schiwetz asked him “four days” before he testified (he testified on July 19, 1983) to compare scene prints to prints of every “Carlos Hernandez” between ages 20 and 30 for whom CCPD had fingerprints]);

    Linda Carrico, DeLuna Is Scheduled To Be Executed Tomorrow, Corpus Christi Caller Times, Oct. 14, 1986, at B1 (“It was on the first day of the trial, Schiewtz said, that DeLuna told his court-appointed attorney, Jon [sic—Jim] Lawrence, about Hernandez.”);

    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’s attorneys passed on Hernandez’s name to the prosecution. But Lawrence and DePena can’t recall whether they or their investigator pursued the possibility that Hernandez killed Lopez—apparently leaving it to the state to check out their own client’s alibi”). Archived at: http://perma.cc/M5SM-UBN5

Court Decisions

  1. Brady v. Maryland, 373 U.S. 83 (1963);
  2. Francis v. Franklin, 471 U.S. 307 (1985);
  3. Gregg v. Georgia, 428 U.S. 153 (1976);
  4. Jurek v. Texas, 428 U.S. 262 (1976);
  5. Kyles v. Whitley, 514 U.S. 419 (1995);
  6. Lockett v. Ohio, 438 U.S. 586 (1978);
  7. Sandstrom v. Montana, 442 U.S. 510 (1979);
  8. Zant v. Stephens, 462 U.S. 862 (1983);

Testimony in Court and Depositions

  1. George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., June 20, 1983);
  2. George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., July 18, 1983);
  3. John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., June 20, 1983);
  4. John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., July 18, 1983);
  5. Julie Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., July 18, 1983);
  6. Blas Avalos, Stepfather of Carlos DeLuna, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983);
  7. Carlos DeLuna, Defendant in Killing of Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983);
  8. Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983);
  9. Robert Klemp, Corpus Christi Police Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983);
  10. James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983);
  11. James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983);
  12. 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);
  13. Mary Ann Perales, Witness Against Carlos DeLuna, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983);
  14. Joseph Rupp, Nueces County Medical Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);
  15. Mark Schauer, Corpus Christi Police Officer, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983);
  16. Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);
  17. Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., July 15, 1983);
  18. Tr. of Pretrial Hr’g, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983);
  19. Tr. of Pretrial Hr’g, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 10, 1983);
  20. Trial Tr.—Alphabetical List of Witnesses, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);
  21. Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983);

Other Primary Records

  1. George Aguirre, Witness to Events Outside Shamrock Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983);
  2. Application for Subpoena Duces Tecum to Dr. Arringdale, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 28, 1983);
  3. Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 8, 1983);
  4. Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 9, 1983);
  5. Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 10, 1983);
  6. Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. May 26, 1983);
  7. Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983);
  8. Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 9, 1983);
  9. Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 16, 1983);
  10. Application for Subpoena, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983);
  11. Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983);
  12. Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983);
  13. Compl., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 7, 1983) (Nueces County Court records compendium at 17–21);
  14. Crime Scene Photograph 25500007, Corpus Christi Police Dep’t (Feb. 4, 1983);
  15. Crime Scene Photograph 25500008, Corpus Christi Police Dep’t (Feb. 4, 1983);
  16. Crime Scene Photograph 25500019, Corpus Christi Police Dep’t (Feb. 4, 1983);
  17. Crime Scene Photograph 25500028, Corpus Christi Police Dep’t (Feb. 4, 1983);
  18. Crime Scene Photograph 25500030, Corpus Christi Police Dep’t (Feb. 4, 1983);
  19. Crime Scene Photograph 25500031, Corpus Christi Police Dep’t (Feb. 4, 1983);
  20. Crime Scene Photograph 25500033, Corpus Christi Police Dep’t (Feb. 4, 1983);
  21. Crime Scene Photograph 25500037, Corpus Christi Police Dep’t (Feb. 4, 1983);
  22. Def.’s First Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983);
  23. Def.’s Mot. for a Continuance (handwritten), Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 17, 1983);
  24. Def.’s Mot. for Court Appointed Co-Counsel, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Apr. 5, 1983);
  25. Def.’s Mot. for Court Appointed Psychiatrist, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Apr. 6, 1983);
  26. 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);
  27. Def.’s Mot. to Quash Indictment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983):
  28. Def.’s Request That the State Elect, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983);
  29. Def.’s Statement on Ineffective Counsel, Texas v. DeLuna, No. 83-CR–193-A (Nueces Cty., 28th Dist. Tex. June 17, 1983);
  30. Demand for Individual Voir Dire, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983);
  31. 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);
  32. Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 5, 1983);
  33. Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Memorandum on Elimination Prints from Wanda Vargas Lopez (Feb. 8, 1983);
  34. Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 10, 1983);
  35. Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report , Corpus Christi Police Dep’t (Feb. 12, 1983);
  36. Steven Fowler, Corpus Christi Police Sergeant, Supplementary Report (Feb. 4, 1983);
  37. Grand Jury Indictment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 17, 1983);
  38. Dr. Joel Kutnick, Psychiatrist, Psychiatric Evaluation of Carlos DeLuna (June 14, 1983);
  39. 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);
  40. Letter from Jack Hunter, Acting District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 28, 1983);
  41. Letter from Jack Hunter, Acting District Attorney, to Hector De Pena, Jr., Trial Lawyer for Carlos DeLuna, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 4, 1983);
  42. Letter from Jack Hunter, Acting District Attorney, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Mar. 16, 1983);
  43. Letter from Carlos DeLuna to Judge Dunham, Nueces County Court records at 10 of 73 (Nov. 17, 1983);
  44. Letter from Judge Walter Dunham, Jr. to Judge Robert Barnes (Sep. 27, 1983);
  45. Letter from Judge Walter Dunham, Jr. to Hector De Peña, Jr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 28, 1983);
  46. James S. Liebman, Memorandum to File 22 and 23—District Attorney Records (Feb. 22, 2005);
  47. James S. Liebman, Outline of the DeLuna Investigation (Nov. 5, 2005);
  48. Bruno Mejia, Corpus Christi Police Officer, Supplementary Report (Feb. 4, 1983);
  49. Mot. for Discovery and Inspection of Evidence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 25, 1983);
  50. Mot. for Discovery and Inspection of Evidence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. May 6, 1983);
  51. 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);
  52. Mot. for Identification Hearing, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 3, 1983);
  53. Mot. for Jury List, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983):
  54. Mot. to Produce Exculpatory and Mitigating Evidence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 25, 1983);
  55. Mot. to Suppress Identification, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 2, 1983);
  56. Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983);
  57. Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Undated);
  58. Order Denying Defendant’s Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983);
  59. Order Denying Mot. for a Continuance (handwritten), Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 17, 1983);
  60. Order of Assignment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. May 26, 1983);
  61. Order of Assignment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 1, 1983);
  62. Order of Assignment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 27, 1983);
  63. Order of Examination, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. May 16, 1983);
  64. Order on Mot. for Ct. Appointed Co-Counsel, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Apr. 15, 1983);
  65. Pl.’s Ex. 4, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988);
  66. Pl.’s Ex. 13, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988);
  67. Pl.’s Ex. 22, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988);
  68. Pl.’s Ex. 26, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988);
  69. Pl.’s Ex. 29, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988);
  70. Pl.’s Original Petition, Martinez v. De Pena, No. 83–4893-E (Nueces Cty., 148th Dist. Tex. Oct. 14, 1983);
  71. Pl’.s Second Request for Production, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. Mar. 25, 1987);
  72. Records of the Nueces County District Attorney’s Office Regarding Prosecution of Carlos DeLuna for Murder of Wanda Lopez (Part 1 of Set B Provided by NCDA to James S. Liebman Feb. 25, 2005);
  73. Records of the Nueces County District Attorney’s Office Regarding Prosecution of Carlos DeLuna for Murder of Wanda Lopez (Part 2 of Set B Provided by NCDA to James S. Liebman Feb. 25, 2005);
  74. Records of the Nueces County District Attorney’s Office Regarding Prosecution of Carlos DeLuna for Murder of Wanda Lopez (Part 3 of Set B Provided by NCDA to James S. Liebman Feb. 25, 2005);
  75. Records of the Nueces County District Attorney’s Office Regarding Prosecution of Carlos DeLuna for Murder of Wanda Lopez (Part 4 of Set B Provided by NCDA to James S. Liebman Feb. 25, 2005);
  76. Records of the Nueces County District Attorney’s Office Regarding Prosecution of Carlos DeLuna for Murder of Wanda Lopez (Set A Provided by NCDA to Douglas Tinker, Esq. Feb. 24, 2005);
  77. Ruben Rivera, Nueces County Deputy Constable, Supplementary Report (Feb. 7, 1983);
  78. Ruben Rivera, Nueces County Deputy Constable, Supplementary Report (Feb. 8, 1983);
  79. Mark Schauer, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) ;
  80. Mark Schauer, Corpus Christi Police Officer, Supplementary Report (Undated);
  81. Schedule A, In re Hector De Pena, Voluntary Case: Debtor’s Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984);
  82. M. Shedd, Corpus Christi Police Sergeant, Supplementary Report (Feb. 6, 1983);
  83. State’s Ex. 4, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);
  84. 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);
  85. 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);
  86. Supplementary Call Card, Corpus Christi Police Dep’t (Feb. 4, 1983);
  87. Texas Dep’t of Criminal Justice, Crime Summary for Carlos DeLuna (July 26, 1983);
  88. Texas v. DeLuna Docket, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Feb. 17, 1983);
  89. Transcript of Wanda Lopez’s Phone Call to Corpus Christi Police Dep’t on Feb. 4, 1983 (Feb. 10, 1983);

Transcribed Videotape Interviews

  1. Transcribed Videotape Interview with Mary Ann Perales Benavides, Witness Against Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005);
  2. Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005);
  3. Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005);
  4. Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005);
  5. Transcribed Videotape Interview with Eddie Garza, Corpus Christi Police Detective (Retired), in Corpus Christi, Texas (Dec. 6, 2004);
  6. Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna, in Garland, Texas (Feb. 27, 2005);
  7. Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004);
  8. Transcribed Videotape Interview with Albert Peña, Lawyer for Jesse Garza in Dahlia Sauceda Case, in Corpus Christi, Texas (Feb. 25, 2005);
  9. Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Texas (Feb. 26, 2005);
  10. Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez’s Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (Dec. 8, 2005);
  11. Transcribed Videotape Interview of Louis Richard Vargas, Brother of Wanda Lopez, in Corpus Christi, Texas (Dec. 4, 2004);

Notes from Other Interviews

  1. Peso Chavez’s Notes on Interviews with Linda Perales Ayala, Step-Mother of Pricilla Hernandez Jaramillo and Ex-Wife of Manuel DeLuna (Feb. 22–26, 2004);
  2. Peso Chavez’s Notes on Interviews with Mary Ann Perales Benavides, Witness Against Carlos DeLuna (Feb. 22–26, 2004);
  3. Sita Sovin &

    Lauren Eskenazi’s Notes on Interview with Mary Ann Perales Benavides, Witness Against Carlos DeLuna, and Ruben Benavides, Mary Ann’s Husband (Sep. 16, 2004);

  4. James S. Liebman’s Notes on Interview with Linda Carrico, Corpus Christi Newspaper Reporter (Sep. 2004);
  5. James S. Liebman’s Notes on Interview with Hector De Peña, Trial Lawyer for Carlos DeLuna (Dec. 3, 2004);
  6. Tamara Theiss’s Notes on Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27. 2005);
  7. Peso Chavez’s Notes on Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row (Aug. 18, 2004);
  8. Bruce Whitman’s Notes on Interview with Eddie Garza, Corpus Christi Police Detective (Aug. 23, 2004);
  9. James S. Liebman &

    Bruce Whitman’s Notes on Interview with Eddie Garza, Corpus Christi Police Detective (Aug. 25, 2004);

  10. Peso Chavez &

    James Liebman’s Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004);

  11. James S. Liebman’s Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004);
  12. James S. Liebman’s Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (July 12, 2004);
  13. James S. Liebman’s Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005);
  14. James S. Liebman’s Notes on Interview with Bill May, Corpus Christi Criminal Defense Lawyer and Former Assistant District Attorney (July 13, 2004);

News Reports

  1. Karen Boudrie, Report (NewsWatch 10 broadcast);
  2. Linda Carrico, City Man Gets Execution Date for ’83 Slaying, Corpus Christi Caller-Times, July 24, 1986;
  3. Linda Carrico, Death Row Inmate Misses Appointment with Death, Corpus Christi Caller-Times, Oct. 15, 1986 (on file with author);
  4. Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times, Oct. 14, 1986;
  5. Kathy Fair, DeLuna Waits for Execution in ‘83 Murder, Hous. Chron., Dec. 6, 1989, 36A;
  6. Kathy Fair, Executed Murderer Asks Forgiveness, Chaplain Says, Hous. Chron., Dec. 8, 1989;
  7. Full Court Denies Stay of Execution: DeLuna Scheduled to Die, UPI, Oct. 10, 1986;
  8. Frank Klimko, State Appeals Court Refuses to Block Texan’s Execution, Hous. Chron., Oct. 14, 1986;
  9. Steve Mills &

    Maurice Possley, ‘I Didn’t Do It But I Know Who Did,’ New Evidence Suggests a 1989 Execution in Texas Was a Case of Mistaken Identity, First of Three Parts, Chi. Trib., June 25, 2006, http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story;

  10. David Teece, Judge Lifts Stay of Execution for DeLuna, Corpus Christi Caller-Times, July 20, 1988;
  11. Cindy Tumiel, Convicted Killer Executed After Court Rejects Appeals, Corpus Christi Caller-Times, Dec. 7, 1989;

Other Secondary Sources

  1. John M. Butler, Fundamentals of Forensic DNA Typing (2010);
  2. Death Penalty Information Center, Charlie Brooks, http://www.deathpenaltyinfo.org/charlie-brooks (last visited Sep. 5, 2011). Archived at: http://perma.cc/S82Z-YLRG.
  3. Andrew Gelman et al., A Broken System: The Persistent Pattern of Reversals of Death Sentences in the United States, 209 J. Empirical Legal Stud. 209 (2004);
  4. Irwin A. Horowitz et al., Chaos in the Courtroom Reconsidered: Emotional Bias and Juror Nullification,30Law &

    Hum. Behav. 163 (2006);

  5. James S. Liebman, Overproduction of Death, 100 Colum. L. Rev. 2030 (2000);
  6. Martindale-Hubbell Law Directory (1994);
  7. Terry Moran, The Wrong Carlos: Did Texas Execute an Innocent Man?, ABC Nightline, July 18, 2013, at 7:18-7:44, available at http://abcnews.go.com/Nightline/video/wrong-carlos-texas-execute-innocent-man-19708635. Archived at: http://perma.cc/8GLA-868F.
  8. 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);

  9. 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);

Figure 11.1:

image

Images from television newscasts in July 1983 of (top, from left) prosecutors Steven Schiwetz and Kenneth Botary, (bottom, from left) defendant Carlos DeLuna, and defense lawyers James Lawrence and Hector De Peña.