HRLR
Los Tocayos Carlos
Chapter 11
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All Chapter 11 Footnotes

It's unclear whether Lawrence or De Peña told Carlos that Mary Ann disputed his recollection, that the prosecutors knew that, and that it would be foolish for him to claim otherwise at the trial. There was no reason for DeLuna to testify about the Perales sisters, in any event. He only claimed to have seen them earlier in the evening, not later, when he saw a man attacking Wanda Lopez. So he wasn't claiming them as an alibi, and they weren't important to his story.

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By telling the prosecutors about the Perales sisters, De Peña and Lawrence had gone out of their way to give the state information they knew could damage their client's case. They expected law enforcement to respond in kind.187 Unlike the defendant, who has a right not to tell the state anything, prosecutors have a moral and legal duty to tell the defendant about any evidence they have that helps him.188 But this was another lesson De Peña would learn from the DeLuna case. Prosecutors and police aren't always diligent in finding evidence that helps the defense, or in disclosing it to the other side when they do.189

An example of this lesson lay in psychiatrist Kutnick's report concluding that DeLuna's low IQ score was either a fluke or malingering. The doctor said he might change his mind if there was any information about "how far this defendant got in school, and whether there was a question of his being retarded."190 Kutnick asked prosecutors to look for the information in DeLuna's school records.191 But as he said in his report, he never "heard back from Mr. Schiwetz," so he assumed the information was "not obtainable."192 Judge Moore, as well as Lawrence and De Peña, read Kutnick's caveat and evidently joined the doctor in assuming Schiwetz had followed up and found no relevant school records. They didn't look for themselves.

All that happened in 1983. In 2004, the out-of-town investigators did look. Within hours the investigators were handed a sheaf of school records showing that, from the elementary grades on, teachers and psychologists alike had diagnosed Carlos DeLuna as a slow learner with a low IQ and learning problems that required special education classes and led him to drop out before finishing middle school.193 DeLuna's juvenile records showed the same thing.194

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Another example of evidence that law enforcement didn't produce was the audiotape of the manhunt. Within a month of the crime, De Peña and prosecutor Hunter had discussed the police tapes in the case, and Hunter offered to let De Peña listen to the portion of the tape that recorded Wanda Lopez's 911 call to the police.195 The defense lawyers had asked in writing for much more, however, including records of "all incoming calls and outgoing broadcast made concerning the reports and whereabouts of any suspect or suspicious persons reported via the Corpus Christ Police Department arising out of the" incident at the Sigmor Shamrock on February 4.196

"[W]e originally tried to get those tapes," De Peña explained in 2005, but law enforcement officials said everything had been erased, "the explanation being that the master tape was only kept for thirty days and then it was erased and reused."197 In the end, all De Peña and Lawrence received was a cassette of Wanda's ninety-second 911 call.198

A police communications technician explained at trial that the February 4th master tape had been preserved for months after the point when it normally would have been reused, and that on June 29, 1983, he had spliced the ninety-second 911 call out of the master tape and preserved it.199 The technician testified that the only portion of the tape his law enforcement superiors had asked him to preserve, even as of late June, was "the call made in reporting a man with a knife at 2602 SPID" up to "the point where that call ends" when the attacker hung up the phone.200

In the meantime, police dispatcher Jesse Escochea had made his own copy of the master tape, which turned up in 2004. His copy includes not only the 911 part of the call, but the forty-minute manhunt as well.201 When prosecutor Schiwetz was asking Escochea questions during the trial, the dispatcher mentioned in passing that he and Schiwetz had gone over the manhunt part of the tape together in preparing for trial.202 But police and prosecutors never gave the manhunt part of the tape to De Peña or Lawrence,203 and the jury never learned about it. That part of the master tape recording was evidently destroyed a few days before the trial began.

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").

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).

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

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.").

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

See supra note 190.

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

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

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.").

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").

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.

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).

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).

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.").

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

See supra Chapter 2, note 111 and accompanying text.

See supra notes 195–200 and accompanying text.

Chapter 11
Page: 11 of 19