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Los Tocayos Carlos
Chapter 11
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Chapter 11

Defense

Hector De Peña was the first lawyer assigned to defend Carlos DeLuna against charges that he killed Wanda Lopez. Long afterwards, De Peña recalled the case as a series of disturbing discoveries, each coming a little later than he would have hoped.

* * * * *

Carlos DeLuna and his family couldn't afford a lawyer, so Judge Jack Blackmon assigned DeLuna a lawyer paid for by the state. Blackmon was the same judge who three years later would free Carlos Hernandez in the Dahlia Sauceda case.1

Why Judge Blackmon picked Hector De Peña for the job was a matter of some discussion at the time. As is true for police detectives and prosecutors,2 murder cases are at the top of the food chain for criminal defense lawyers. And murder cases where the prosecutor asks for the death penalty are the most noteworthy of all.3

Fighting murder charges is tough work. Jurors feel responsible for providing some kind of payback or justice to the deceased victim and the surviving family. This is especially so, when the victim, like Wanda Lopez, didn't "have it coming" in any way—and most especially when the jurors didn't have to imagine the victim's hellish suffering because it was recorded on a 911 tape.4 Albert Peña, the lawyer who got Jesse Garza acquitted in the 1980 Sauceda murder trial, understood this well. When he decided to go all out for a not-guilty verdict for Garza, he knew the jurors would never let his client off unless they were darned sure of two things: that Garza didn't do it, and that they knew exactly who did.5

Fighting capital murder charges is even more difficult. With the defendant's life at stake, the case is sure to be in the papers and on TV,6 and anything short of a conviction and death sentence is an embarrassing loss for the D.A.'s office.7 Prosecutors fight capital cases hard,8 using every weapon at their disposal, including an entire police department to chase down witnesses and leads.9

Defense lawyers are also on display in capital cases. Every move they make is analyzed and second-guessed by other lawyers and the press.10 If their client has no money, they're sure to be outgunned by the D.A. and police department. Courts don't have to agree to fund even a single defense investigator, and when they do, the amounts provided can be laughably low. In Corpus at the time, the most you could get for a defense investigator was $500—enough for twenty-five hours total from someone willing to work at rock-bottom rates.11

One reason capital murder cases are so demanding is that they're actually two trials in one. In other cases, there's one full-blown trial in front of a jury, to decide if the defendant is guilty. If the jury finds him guilty, the judge decides on a sentence after a short hearing. But in a capital case, if the jury finds the defendant guilty, there's a second full trial, at which the same jury decides whether to sentence the defendant to death or life in prison.12 At that trial, the prosecutors get to put on more evidence—of "aggravating" factors, or every reason they can find why the crime or the criminal is especially bad.13 Then, the defendant is allowed to put on "mitigating" evidence—reasons why the crime wasn't as bad as some others, or why the defendant is a better person than the crime suggests or has good excuses for why he is the way he is.14

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 Blackmon, 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.").

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).

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).

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).

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

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

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

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.").

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 14, notes xx 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).

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

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.").

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).

See supra note 7.

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).

Chapter 11
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