1. p. 197 “…from the Dahlia Sauceda case…”

    See supra Chapter 7, notes 39–49, 87–96, 134, 199–203 and accompanying text; supra Chapter 9, notes 62–66, 108–112 and accompanying text.

  2. p. 197  “…in the weeks after the Wanda Lopez killing…”

    See supra Chapter 9, notes 7–8, 50–69 and accompanying text.

  3. p. 197 “…Hernandez’s arrest in April 1983 at the 7-Eleven.”

    See supra Chapter 9, notes 72–88, 93–108 and accompanying text.

  4. p. 197 “Nor did Assistant District Attorney…Wanda Lopez was stabbed.”

    See supra Chapter 2, notes 44–48, 75–81, 137–146, 155–175 and accompanying text & Table 2.1.

  5. p. 197 “Instead, Schiwetz…Ernest Wilson.”

    Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 458–459:

    Q. [By Steve Schiwetz] At my request, did you attempt to make some comparisons between the latent fingerprints lifted by Sergeant Infante and some other—some people with another name?

    A. Yes, sir, I did.

    Q. And what was that other name?

    A. Carlos Hernandez.

    Q. And when did you try and make those comparisons?

    A. About four days ago.

    Q. And at that time were you able to pull out any fingerprint cards over at the Corpus Christi Police Department which matched the name Carlos Hernandez.

    A. Yes, sir, I did.

    Q. And between what ages did you pull those cards?

    A. Between the age of 20 and 30.

    Q. And how many cards did you find with the names Carlos—different defendants with the name Carlos Hernandez?

    A. Seven.

    Q. Did you attempt to make comparisons between the fingerprints of the known fingerprints of different Carlos Hernandezes and the fingerprints which were found, those partial fingerprints which were found on the door at the Sigmor Station?

    A. Yes, I did.

    Q. Were you able to make any kind of comparison with them?

    A. No, sir, I was not.

    It is interesting that Schiwetz’s questions and Wilson’s answers indicate that it was Sergeant Wilson, in July 1983, who identified the seven Carlos Hernandezes between the ages of twenty and thirty with criminal records. In fact, it was Detective Olivia Escobedo who first identified the seven Carlos Hernandezes, in May, and immediately turned over their rap sheets to prosecutors Botary and Schiwetz See supra Chapter 9, notes 93–105 and accompanying text; Chapter 11, notes 127–173 and accompanying text.

  6. p. 197 “Judging from…care and professionalism.”

    Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 333–34:

    Q. And how long have you been with the Corpus Christi Police Department itself?

    A. I have been with the department 29 years. . . .

    Q. And how long have you been a fingerprint expert?

    A. Fifteen years.

    Q. Have you had an opportunity to testify in district courts of the State of Texas regarding the examination and comparison of fingerprints?

    A. Yes, sir.

    Q. How many times?

    A. Numerous times, I—I couldn’t say offhand.

    Q. More than a hundred times?

    A. Oh, yes, definitely.

    Q. What kind of training have you received to prepare you for a life’s work in identification of fingerprints?

    A. I studied under the Institute of Applied Science, Federal Bureau of Investigation, Department of Public Safety, on-the-job training under supervision on the job and I am certified as a Latent Print Examiner.

  7. p. 197 “…crime scene were of such poor quality…”

    Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 338–39 (“Q. What are [sic] the quality of these particular fingerprints [from the glass door and beer can] that Officer Infante lifted? A. They’re very bad quality. . . . Q. How about the others, what’s the quality of them? A. They’re very bad quality.”; characterizing the fingerprint taken from the beer can as “very, very bad quality”).

  8. p. 197 “…rap sheets in the D.A.’s file.”

    Steve Schiwetz, Prosecutor, Opening Statement, Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 18 (“[I]n effect there are no fingerprints in this case”);

    see Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 338–39;

    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, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=4 (“Infante said he found three fingerprints inside the station—two on the front door and one on the telephone. But all were of such poor quality that they were worthless.”); see supra Chapter 10, notes 169–171 and accompanying text; infra Chapter 13, notes 17–72, 285–286 and accompanying text. Archived at: http://perma.cc/L9MV-HBJ4.

  9. p. 197 “‘In effect…there are no fingerprints in this case.’”

    Steve Schiwetz, Prosecutor, Opening Statement, Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 18 (“[I]n effect there are no fingerprints in this case”);

    see also 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 14 (statement of prosecutor Schiwetz to judge: “The upshot is that there aren’t any fingerprints [in the case].”);

    Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 338–339 (“Q. What are [sic] the quality of these particular fingerprints [from the glass door and beer can] that Officer Infante lifted. A. They’re very bad quality. . . . Q. How about the others, what’s the quality of them? A. They’re very bad quality.”; characterizing the fingerprint taken from the beer can as “very, very bad quality”).

  10. p. 198 “The prosecution team…David Street in Corpus Christi.”

    Application for Subpoena, Texas v. DeLuna, No. 83-CR–194A (Nueces Cty., 28th Dist. Tex. July 6, 1983) at 1.

  11. p. 198 “Unless you send…’worth the paper they’re written on.’”

    Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:30:15–07:32:08:

    And let me bring up, in the DeLuna case, did not the sheriff get a subpoena from the defense asking them to serve Carlos Hernandez? Well, that’s criminal too, but that shows you that the kind of burden that a criminal attorney has. Your subpoenas, despite [what] is said, aren’t worth the paper they’re written on. They don’t go and look for your guy. Carlos Hernandez, I guarantee you, if you went to [Officer] Paul [Rivera]. He’s a man of integrity. Or Eddie [Garza] too. “How long would it take you to find Carlos?” They would have said, “Hernandez? Hancock Street. Two minutes?” Certainly within a half a day. No matter where he was.

  12. p. 198 “That was the sum…locate ‘Carlos Hernandez.’”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:07:55, 12:20:04 (“[T]he correct individual was never found.”; “As far as I know, the prosecutors didn’t give me a whole lot of assistance.”).

  13. p. 198 “…around Staples and Mary near Carrizo Street…”

    See supra Chapter 9, notes 7–8, 50–69 and accompanying text.

  14. p. 198 “…’hurt’ Wanda Lopez with a knife.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:58:51:

    Q. [W]e have been told by a gentleman 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, 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.

  15. p. 198 “…arrest in April at the 7-Eleven…”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 13:00:34 (“Q. . . . Carlos Hernandez was arrested . . . 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 [of Carlos DeLuna] on February 4th to the trial [of DeLuna] 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.”).

  16. p. 198 “…stabbing and beating Dahlia Sauceda to death.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:55:23–12:57:05:

    Q. 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 . . . shorts, his 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 . . . . And I’m just curious what your reaction is to that information.

    A. I wish I had known at that point, 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.

  17. p. 198 “No one mentioned…fondness for lock-blade buck knives.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:21:09–12:22:49 (“Q. Did any of the detectives for the Corpus Christi Police Department or any of the people in the District Attorney’s office indicate that they knew, at that time, knew of a Carlos Hernandez who might be capable of using a knife in this way. A. No.”);

    see Peso Chavez & James S. Liebman’s Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 6–7:

    CH [Carlos Hernandez] was notorious. Well known. . . . When Jack Blackmun asked me to [represent him], his court manager . . . said I should know who CH was. DA [District Attorney] said the same thing. They let me know at the time he was a real slime. I know they let me know that CH was a bad guy. Very notorious. . . . Carlos Hernandez was easy to find at the time. He was a known quantity over on Hancock and Mary. They could find CH. Anyone in homicide w[ou]ld know who CH was. If you worked that area of town, they’d know. That’s BS [that law enforcement couldn't find him]. There was no question he could’ve been found. . . . Re: who “CH” is: They knew it.

    See supra Chapter 6, notes 42–60, 90–105, 111–138, 166–170, 193–197, 203, 206, 220–222 and accompanying text; supra Chapter 7, notes 103–104, 139–140, 151–159, 189–194, 212–228 and accompanying text; supra Chapter 8, notes 25–44, 100–107 and accompanying text; supra Chapter 9, notes 7–27, 52–71; infra notes 20–32 and accompanying text.

  18. p. 198 “‘[T]he prosecutors’…Hector De Peña dryly commented later.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:20:04 (“As far as I know, the prosecutors didn’t give me a whole lot of assistance.”).

  19. p. 198 “‘[T]he correct individual was never found.’”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:07:55, 12:34:56–12:24:05 (“[T]he correct individual was never found.”; “Q. So the state’s view all along was that there was no such person. A. Correct.”).

  20. p. 198 “Jesse Garza’s lawyer…Sauceda murder three years earlier.”

    Transcribed Videotape Interview with Albert Peña, Lawyer for Jesse Garza in Dahlia Sauceda Case, in Corpus Christi, Texas (Feb. 25, 2005) at 18:30:50 (“[Botary] prosecuted Jesse Garza, my client. And he knew Carlos Hernandez also testified in the case, and that’s not a fellow that you’re going to likely forget.”);

    see Transcribed Videotape Interview with Albert Peña, Lawyer for Jesse Garza in Dahlia Sauceda Case, in Corpus Christi, Texas (Feb. 25, 2005) at 18:29:24 (“No question about it. They [Botary and Hernandez] played chess together [in the Dahlia Sauceda case]. If, in 1983, somebody had asked Mr. Botary, or told Mr. Botary, that there was a claim Carlos Hernandez had committed this stabbing at the Shamrock station, what would he have known about a Carlos Hernandez? . . . He prosecuted Jesse Garza, my client. And he knew Carlos Hernandez also testified in the [Sauceda] case”).

  21. p. 198 “Jesse Garza’s lawyer…Sauceda murder three years earlier.”

    Transcribed Videotape Interview with Albert Peña, Lawyer for Jesse Garza in Dahlia Sauceda Case, in Corpus Christi, Texas (Feb. 25, 2005) at 18:29:24 (“No question about it. They [Botary and Hernandez] played chess together [in the Dahlia Sauceda case].”);

    see Steve Mills & Maurice Possley, A Phantom or A Killer?, A Prosecutor Said Carlos Hernandez Didn’t Exist. But He Did, and His MO Fit the Crime, Second of Three Parts,Chi. Trib., June 25, 2006, available at http://www.chicagotribune.com/services/newspaper/eedition/chi-tx-2-story,0,302882.htmlstory:

    When another man [Jesse Garza] was charged with the [Sauceda] murder, his defense lawyer [Albert Peña] asserted that Hernandez was the real killer. Prosecutor Ken Botary—later the co-prosecutor in De Luna’s trial—interviewed Hernandez in his office before the trial. Hernandez was brought to that tape-recorded interview by Detective Olivia Escobedo, who would be the lead investigator in Wanda Lopez’s murder. At trial, Botary cross-examined Hernandez. The defendant [Jesse Garza] was acquitted.

    See supra Chapter 7, notes 39–44, 199–203 and accompanying text. Archived at: http://perma.cc/H9Q6-QBFL

  22. p. 198 “Jesse Garza’s lawyer…Sauceda murder three years earlier.”

    See supra Chapter 7, notes 87–134 and accompanying text.

  23. p. 198 “Unless you…’you’re going to likely forget.’”

    Transcribed Videotape Interview with Albert Peña, Lawyer for Jesse Garza in Dahlia Sauceda Case, in Corpus Christi, Texas (Feb. 25, 2005) at 18:30:50 (“[Botary] prosecuted Jesse Garza, my client. And he knew Carlos Hernandez also testified in the case, and that’s not a fellow that you’re going to likely forget.”).

  24. p. 199 “Peña himself…’not this fellow [De]Luna.’”

    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 (“I heard that Carlos Hernandez had done it, and police were going through the city. (chokes up) Excuse me. Capital murder, there’s no appeal. I’d heard that, through police sources and through people at the courthouse, people in the know, that Carlos Hernandez was suspected of doing it. Not this fellow [De]Luna. But again they took the attitude of putting the blinders on.”).

  25. p. 199 “Hernandez’s lawyer…detective to bring him in.”

    Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 06:35:00–06–06:39:36:

    Q. [W]hat you had heard about Carlos Hernandez from [Detective] Paul Rivera?

    A. Well, I had heard about the [Dahlia Sauceda] incident, obviously, which was the underlying case involving the van and the girl and all of that. That [Detective] Paul [Rivera] would occasionally, initially especially, would say, “This is a real bad guy. He’s been involved in violence for years. He has just an uncontrollable temper, which goes off at times. He’s a very dangerous man.” And it would be followed up by other detectives. I was socially—my wife at the time was very friendly with the wife of a lieutenant in the police department, or a sergeant, I forget. And, so socially it would come up that I was Carlos Hernandez’s lawyer, and it was always lead to comments and talk. In good nature, but always his violent past would come up. . . .

    Q. In your interactions with other members of the police department, what did you hear about Carlos Hernandez?

    A. As I said, initially, Paul [Rivera], when I first represented Carlos, Paul made it known to me that Carlos Hernandez was a bad guy. And I would ask around, and maybe one or two lawyers would say, “you know, he’s involved in a case that I had and he’s a bad dude.” My wife at the time was very friendly and close to a detective and the detective’s wife, and so socially we would go over to their house, oh, maybe every other week. And at Christmas time, etc. I remember going to Eddie Garza’s at Christmas. And one of the ways, besides being the asshole, was that I was introduced as Carlos Hernandez’s lawyer. And I was well known to the members of the police department. But usually the mention of Carlos Hernandez would allow other detectives to make comments. And . . . about Carlos and stuff. I blew it off, but I understood that they truly believed that they knew who Carlos was, that Carlos Hernandez was a dangerous man and that he was someone to reckon with. . . .

    Q. [I]f the question had arisen in law enforcement circles in Corpus Christi, Texas in 1983, is there a Carlos Hernandez in this town who was capable of using a knife to hurt a woman, or at least ha[d] a reputation in that direction, if you would just describe what the likelihood is that attention would focus on the Carlos Hernandez that you knew.

    A. . . . Carlos Hernandez was known. If someone said, “knife” and “Carlos Hernandez,” they’d know exactly what you were saying. If you were an active detective. If you were experience[d] in patrol in, not so much on the west side, but more on the Mary Street area, you’d know who Carlos was. I mean, come on! They all knew.

    Q. And that was true throughout the 1980s?

    A. Oh sure.

    Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 06:51:56 (“Q. When there was discussion about Carlos Hernandez, was there any sense of the typical gender of the victims of these crimes that he was reputed to have committed. A. . . . Yeah, usually they involved women, quite often.”);

    Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:30:15–07:32:08:

    [I]in the DeLuna case, did not the sheriff get a subpoena from the defense [sic, it was from the prosecutors] asking them to serve Carlos Hernandez? Well, that’s criminal too, but that shows you that the kind of burden that a criminal attorney has. Your subpoenas, despite what is said, aren’t worth the paper they’re written on. They don’t go and look for your guy. Carlos Hernandez, I guarantee you, if you went to [Detective] Paul [Rivera]. He’s a man of integrity. Or Eddie [Garza] too. “How long would it take you to find Carlos?” They would have said, “Hernandez? Hancock Street. Two minutes?” Certainly within a half a day. No matter where he was.

    Peso Chavez & James S. Liebman’s Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 6–7:

    CH [Carlos Hernandez] was notorious. Well known. . . . When [Judge] Jack Blackmun asked me to [represent him], his court manager . . . said I should know who CH was. DA [District Attorney] said the same thing. They let me know at the time he was a real slime. I know they let me know that CH was a bad guy. Very notorious. . . . Carlos Hernandez was easy to find at the time. He was a know[n] quantity over on Hancock and Mary. They could find CH. Anyone in homicide w[ou]ld know who CH was. If you worked that area of town, they’d know. That’s BS [that law enforcement couldn't find him]. There was no question he could’ve been found. . . . Re: who “CH” is: They knew it.

  26. p. 199 “‘They all knew.’”

    Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 06:38:02–06:39:36:

    Q. [I]f the question had arisen in law enforcement circles in Corpus Christi, Texas in 1983, is there a Carlos Hernandez in this town who was capable of using a knife to hurt a woman, or at least ha[d] a reputation in that direction, if you would just describe what the likelihood is that attention would focus on the Carlos Hernandez that you knew.

    A. . . . Carlos Hernandez was known. If someone said, “knife” and “Carlos Hernandez,” they’d know exactly what you were saying. If you were an active detective. If you were experience[d] in patrol in, not so much on the west side, but more on the Mary Street area, you’d know who Carlos was. I mean, come on! They all knew.

    Q. And that was true throughout the 1980s?

    A. Oh sure.

  27. p. 199 “Famed homicide detective…the Carlos Hernandez.”

    Transcribed Videotape Interview with Eddie Garza, Corpus Christi Police Detective, in Corpus Christi, Texas (Dec. 6, 2004) at 00:17:16–00:19:12:

    Q. [I]f I was to tell you that, in the trial of Carlos DeLuna, a police office[r] testified that they had reviewed or looked at all Carlos Hernandez’s regarding this incident, the homicide of Wanda Lopez, and in trial they said that they had reviewed and looked at all Carlos’s, Carlos Hernandez’s, and there was no Carlos Hernandez that they felt was connected to this case. Would that be surprising to you?

    A. Well, I don’t remember a police office[r] testifying in court to this case, but there was a Carlos Hernandez, and I knew Carlos Hernandez ever since he was a juvenile because I arrested him many times. And he lived around the Carrizo-Laredo Street area. And he was always involved in some type of crime, theft, in shoplifting, and several other assaults that he was involved in. He was always getting involved in fights within the area. So I knew there was a Carlos Hernandez. If somebody got up and testified that there was no Carlos Hernandez, there sure was, and I can testify to that because I arrested him several times.

    Transcribed Videotape Interview with Eddie Garza, Corpus Christi Police Detective, in Corpus Christi, Texas (Dec. 6, 2004) at 00:23:42–00:25:00:

    Q. Was Carlos Hernandez familiar to most policemen in the police department?

    A. Well, the policemen that actually were involved in investigating some of the crimes that he had committed, yes there were several officers that knew him. The patrol division knew who he was, knew his hangouts, and the people that he hung out with.

    Q. Did the criminal investigation division, were they aware of Carlos Hernandez?

    A. Myself and my partners, we were well aware of Carlos Hernandez and what he was capable of doing.

    Q. In 1983, did the officers in the criminal investigation division know of, know who Carlos Hernandez was?

    A. In regards to being a suspect in [the Wanda Lopez] crime, yes, we were aware that Carlos Hernandez might be a possible suspect.

    Q. But it’s safe to say that he was familiar to the C.I.D. division within the Corpus Christi police department. Is that correct?

    A. Definitely. Most of the detectives in the criminal investigation division knew of Carlos Hernandez.

    See also Transcribed Videotape Interview with Janie Adrian, Neighbor of Carlos Hernandez, in Corpus Christi (Dec. 5, 2004) at 08:00:00–08:00:46:

    Q. [I]f people came around the neighborhood and said, ever heard of a person named Carlos Hernandez, what would people have said? . . .

    A. Everybody knew Carlos Hernandez around there. . . . Everybody knew Carlos Hernandez around there, everybody. If you asked the dogs, the dogs would probably tell you. . . .

    Q. But the police, did they ask [about Hernandez and the Wanda Lopez killing]? Nope, they never did.

  28. p. 199 “‘If somebody…I arrested him several times.’”

    Transcribed Videotape Interview with Eddie Garza, Corpus Christi Police Detective, in Corpus Christi, Texas (Dec. 6, 2004) at 00:17:16–00:19:12.

  29. p. 199 “‘Most of the detectives…knew of Carlos Hernandez.’”

    Transcribed Videotape Interview with Eddie Garza, Corpus Christi Police Detective, in Corpus Christi, Texas (Dec. 6, 2004) at 00:23:42–00:25:00.

  30. p. 199 “Hernandez’s reputation extended…Kelly explained.”

    Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:24:52–07:26:39:

    Q. How would you react to the fact that during the course of preparation for trial, and at trial, Mr. DeLuna testified and he told his attorneys that he had seen a man named Carlos Hernandez there at the scene, struggling with the victim, and committing that crime, and the prosecutor gave an argument to the jury and also spoke to the press saying that Carlos Hernandez is a phantom. . . . .

    A. People in the D.A.’s office at that time knew who Carlos Hernandez was. Period. [pause] I know those people personally. I consider them friends. But I can say that without much hesitation. Anybody with any period of time and services in the Nueces County District Attorney’s office in that period of time, they knew who Carlos Hernandez was. Period. [pause] So, you take that for what it says, what it means.

  31. p. 199 “‘Period.’”

    Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:24:52–07:26:39 (quoted supra note 30).

  32. p. 199 “‘Period.’”

    Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) (quoted supra note 30).

  33. p. 199 “‘I know they hated him.’”

    Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:34:40–20:35:50:

    Q. When Carlos said, as he did from the beginning, that he didn’t do it, somebody else did it, and then the name Carlos Hernandez was given to his lawyers, to the district attorney, to the police, the press, why do you think that the authorities didn’t go look for Carlos Hernandez?

    A. Because they hated my brother, they hated Carlos. I know they hated him. They hated him. And they knew that my mom was sick, they knew that she died. They didn’t care. This was a chance to get rid of my brother.

  34. p. 199 “He’d been a cocky nuisance…for years.”

    See Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:35:03–20:35:50 (“You have to understand, going back from the early ages when my brother was going in and out of jail constantly. My mom was always bailing him out. He would always say, ‘I’ll be out of here in an hour, you watch.’ Because I would go with my mom to bail him out. He would just go out laughing, ‘I told you I’d be out.’”);

    supra Chapter 5, notes 193–198 and accompanying text.

  35. p. 199 “‘This was their chance’…underneath that truck.”

    Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 19:59:44–20:02:58 (“And I believe that Carlos pissed off a lot of people in Corpus. He just, burned a lot of bridges. I believe strongly that a lot of those officers would say, ‘give him enough rope and one of these days he’s going to hang himself.’ That’s what I believe.”);

    Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:34:40–20:35:50 (“This was their chance to get rid of my brother . . . .”);

    see supra Chapter 5, notes 197–198 and accompanying text.

  36. p. 200 “News reporters later…find Carlos Hernandez.”

    Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times, Oct. 14, 1986, at B1:

    DeLuna claims he is a victim of mistaken identity. He said a friend, Carlos Hernandez, killed the clerk but authorities refuse to believe him.

    “That’s a lie,” Schiwetz said. “He lied throughout the trial, and he’s lying now.”

    It was on the first day of the trial, Schiwetz said, that DeLuna told his court-appointed attorney, Jim Lawrence, about Hernandez whom he said he met while both were in the Nueces County Jail. . . .

    “Further checks showed that DeLuna had never been in jail the same time as a Carlos Hernandez,” the former prosecutor added.

    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, at 6, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=6:

    While De Luna would later testify that he had first met Hernandez when they were teenagers [sic—when Carlos DeLuna was a teenager and Carlos Hernandez was in his twenties], the exact nature of their relationship—whether they were good friends or just acquaintances—is difficult to sort out.

    What the lead prosecutor, Schiwetz, recalls is that De Luna’s lawyers told him their client had met Hernandez in jail. Nueces County records were pulled and sent to lead detective Escobedo. When [law enforcement concluded] that the men were never in jail at the same time, Schiwetz didn’t pursue De Luna’s claim further. [Schiwetz was c]onvinced that De Luna was a liar . . . .

    But cf. supra Chapter 9, notes 91–92 and accompanying text (identifying multiple occasions on which it appears that Carlos Hernandez and Carlos DeLuna were in Corpus Christi police custody at the same time). Archived at: http://perma.cc/M5SM-UBN5

  37. p. 200 “Schiwetz said…anyone else besides DeLuna.”

    Steve Mills & Maurice Possley, Sidebar: Co-Prosecutor Knew of Hernandez, Chi. Trib., June 26, 2006, available at http://articles.chicagotribune.com/2006-06-26/news/0606260190_1_new-trial-murder-case-real-killer (“Schiwetz said Botary never told him about Hernandez. By remaining silent, Botary allowed Schiwetz to misinform De Luna’s jury.”). Archived at: http://perma.cc/PM9Z-9TV3

  38. p. 200 “He believed…made the name up.”

    See Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times Times, Oct. 14, 1986, at B1;

    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, at 6, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=6 (quoted supra note 36). Archived at: http://perma.cc/3E57-JAZJ.

  39. p. 200 “As Schiwetz recalled…met Hernandez in jail.”

    See Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times, Oct. 14, 1986, at B1 (quoted supra note 36);

    Steve Mills & Maurice Possley, Sidebar: Co-Prosecutor Knew of Hernandez, Chi. Trib., June 26, 2006, available at http://articles.chicagotribune.com/2006-06-26/news/0606260190_1_new-trial-murder-case-real-killer (quoted supra note 36). Archived at: http://perma.cc/PM9Z-9TV3.

  40. p. 200 “‘When [records] showed…De Luna’s claim further.’”

    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, at 6, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=6, (quoted in full supra note 36); see Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times Times, Oct. 14, 1986, at B1 (quoted supra note 36). Archived at: http://perma.cc/M5SM-UBN5

  41. p. 200 “To this day…killed Wanda Lopez.”

    Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times, Oct. 14, 1986, at B1;

    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, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story (“[P]resented with the results of the newspaper’s inquiry, DeLuna’s prosecutors still believe they convicted the right man. But the lead prosecutor [Schiwetz] acknowledged he is troubled by some of the new information.”). Archived at: http://perma.cc/M5SM-UBN5. Steve Mills & Maurice Possley, The Secret that Wasn’t, Violent Felon Bragged that He was Real Killer, Last of Three Parts, Chi. Trib., June 27, 2006, available at http://www.chicagotribune.com/services/newspaper/eedition/chi-tx-3-story,0,761635.htmlstory:

    Ultimately, Schiwetz points to several elements of the case that still persuade him the jury convicted the right man. De Luna, he said, lied when he claimed to have talked to two women at a skating rink on the night of the crime and lied when he apparently said he first met Hernandez in jail. De Luna had lost all credibility, Schiwetz said.

    “He’s lying about the most important story he’s ever going to tell in his entire life,” he said.

    In addition, while De Luna said he lost his shirt while scaling a fence, he gave no explanation for how he lost his shoes, Schiwetz noted.

    Though the crime lab found no blood or other evidence on them, Schiwetz told the jury that De Luna could have stabbed Lopez without getting blood on his shirt and that any blood on his shoes washed off when he ran through wet grass.

    As for Hernandez’s history of knife crimes, he said, “Every man in this town has carried a knife. And most of us still do. I carry a knife. I did not kill Wanda Lopez or anybody else.”

    Schiwetz’s co-prosecutor on the De Luna case, Ken Botary, also remains confident the verdict was correct. “I’m not ready to concede Carlos De Luna was innocent,” Botary said.

    See also Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 1:41:22–1:43:40, describing conversations with her neighbor Steve Schiwetz in the years after the DeLuna trial:

    Years later, [I] ended up living next door to the prosecutor, Steve Schiwetz. He was my next door neighbor. . . . . Steve Schiwetz and I would go round and round about it [the DeLuna case]. We’d talk about it. He’d tell me Carlos was a predator, he was a woman-hater. He was so convinced and convincing that Carlos was this evil person that we had put to death. He was so convinced, and I liked Steve and I thought Steve was a good prosecutor. At that time I had nothing to compare it by. But he was impressive. Archived at: http://perma.cc/WZT7-3WYM.

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 02:14:47–02:15:38 (“Steve Schiwetz [some years after the trial] was talking about Carlos DeLuna and saying that he was a predator. He was violent towards woman and that he, Carlos DeLuna, would continue, it was in his blood, and he was simply going to continue to harm women. Of course, that was part of what the prosecution portrayed him as in the punishment phase, that this would continue if we didn’t put him to death.”).

  42. p. 200 “Neither James Lawrence…knew Hernandez from jail.”

    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 (“Q. I also took down these notes [from a prior interview, quoting statements by De Peña] . . . ‘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]t was at that time that he [DeLuna] 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 Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2 (noting that all DeLuna would disclose was “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.”);

    see supra Chapter 11, notes 274–281 and accompanying text.

  43. p. 200 “…point against DeLuna at his trial…”

    See Carlos DeLuna, Defendant in Killing of Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 433–34:

    Q. [on cross-examination by Schiwetz] What were the circumstances under which you originally met Carlos Hernandez?

    A. You mean back then, back when I knew him, first knew him?

    Q. Yes, sir.

    A. Well, we used to—oh, I met him with my brother at a dance and we started meeting each other a little better.

    Q. So you’re pretty good friends?

    A. Well, not too good a friends, we’re just friends. . . .

    Q. Do you know if Carlos Hernandez has ever been arrested in the city of Corpus Christi?

    A. I’m not too sure, I thought he had but I’m not too sure.

    Q. If he had been arrested, would it be fair to say that they would have fingerprinted him?

    A. It’s fair to say, not all the time [i.e., not all arrestees are fingerprinted], but it’s fair to say.

    The colloquy just quoted is the sum total of Schiwetz’s questions to DeLuna about how and where he met Carlos Hernandez. Although Schiwetz confronted DeLuna with other statements the defendant had previously made that the prosecutor contended inconsistent with his testimony, Schiwetz never claimed at the trial or in his cross-examination questions that DeLuna had told either his own lawyers or Schiwetz anything inconsistent with his testimony at trial about how and where he met Hernandez. DeLuna’s reference to having met Hernandez at a “dance” is consistent with the way young Hispanics in Corpus Christi at the time referred to the Casino Club—as if it held a “dance” every night that it was open. See, e.g., supra Chapter 7, note 57 and accompanying text (using the phrase “[w]hen the dance was finished” to refer to the Casino Club’s closing time).

  44. p. 200 “…show that DeLuna had ever told.”

    See infra Chapter 13, notes 253–284, 303–309 and accompanying text.

  45. p. 200 “…January 15, 1979, and May 23, 1980…”

    See supra Chapter 9, notes 91–92 and accompanying text.

  46. p. 200 “…arrested behind a 7-Eleven with a knife.”

    See supra Chapter 9, notes 73–90 and accompanying text.

  47. p. 200 “Detective Eddie Garza…late 1970s.”

    See supra Chapter 6, notes 26, 199–207 and accompanying text; supra Chapter 8, notes 46, 50–52 and accompanying text; supra Chapter 9, notes 52–54 and accompanying text.

  48. p. 200 “When DeLuna testified…had met Hernandez.”

    See infra Chapter 13, notes 194–195, 267–270 and accompanying text.

  49. p. 201 “But Schiwetz added…alerted the defense.”

    Steve Mills & Maurice Possley, Sidebar: Co-Prosecutor Knew of Hernandez, Chi. Trib., June 26, 2006, available at http://articles.chicagotribune.com/2006-06-26/news/0606260190_1_new-trial-murder-case-real-killer. Archived at: http://perma.cc/PM9Z-9TV3 see also Steve Mills & Maurice Possley, The Secret that Wasn’t, Violent Felon Bragged that He was Real Killer, Last of Three Parts, Chi. Trib., June 27, 2006, available at http://www.chicagotribune.com/services/newspaper/eedition/chi-tx-3-story,0,761635.htmlstory:

    Schiwetz labeled Hernandez a “phantom” at trial, but said he would not have done so if he’d been informed by a fellow prosecutor that Hernandez had been a suspect in the murder of another woman.

    Schiwetz also said that if he had been told of reports that Carlos Hernandez was claiming to be Lopez’s killer, he would have investigated them.

    “Anytime somebody’s going around saying they killed somebody, I think it’s worth looking at,” he said. “But I’ve heard a lot of people make claims for stuff they did or didn’t do that weren’t true.” Archived at: http://perma.cc/WZT7-3WYM

Testimony in Court and Depositions

  1. Carlos DeLuna, Defendant in Killing of Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);
  2. Steve Schiwetz, Prosecutor, Opening Statement, Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);
  3. Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);

Other Primary Records

  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);
  2. Application for Subpoena, Texas v. DeLuna, No. 83-CR–194A (Nueces Cty., 28th Dist. Tex. July 6, 1983);

Transcribed Videotape Interviews

  1. Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005);
  2. Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005);
  3. Transcribed Videotape Interview with Eddie Garza, Corpus Christi Police Detective, in Corpus Christi, Texas (Dec. 6, 2004);
  4. Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004);
  5. Transcribed Videotape Interview with Albert Peña, Lawyer for Jesse Garza in Dahlia Sauceda Case, in Corpus Christi, Texas (Feb. 25, 2005);
  6. Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Texas (Feb. 26, 2005);

Notes from Other Interviews

  1. Peso Chavez & James Liebman’s Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004);
  2. James Liebman’s Notes on Interview with James Lawrence, Trial Lawyer for Carlos DeLuna (Feb. 25, 2005);

News Reports

  1. Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times Times, Oct. 14, 1986;
  2. 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, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=6. Archived at: http://perma.cc/L9MV-HBJ4.
  3. Steve Mills & Maurice Possley, A Phantom or A Killer?, A Prosecutor Said Carlos Hernandez Didn’t Exist. But He Did, and His MO Fit the Crime, Second of Three Parts, Chi. Trib., June 25, 2006, available at http://www.chicagotribune.com/services/newspaper/eedition/chi-tx-2-story,0,302882.htmlstory. Archived at: http://perma.cc/H9Q6-QBFL.
  4. Steve Mills & Maurice Possley, The Secret that Wasn’t, Violent Felon Bragged that He was Real Killer, Last of Three Parts, Chi. Trib., June 27, 2006, available at http://www.chicagotribune.com/services/newspaper/eedition/chi-tx-3-story,0,761635.htmlstory. Archived at: http://perma.cc/K5QZ-JJUC.
  5. Steve Mills & Maurice Possley, Sidebar: Co-Prosecutor Knew of Hernandez, Chi. Trib., June 26, 2006, available at http://articles.chicagotribune.com/2006-06-26/news/0606260190_1_new-trial-murder-case-real-killer. Archived at: http://perma.cc/PM9Z-9TV3.