Any time you try to convince a jury that your client is innocent, the most natural question the jurors will have is why in the world the police would go after someone who didn't commit the crime, especially when they're seeking the death penalty.
When De Peña asked himself why the police hid Wanda's earlier call, he thought he had the answer to the jury's question: "C.Y.A". Cover your ass.253 If you're law enforcement, you're supposed to protect hard-working people like Wanda Lopez from knife-wielding attackers. If instead you screw up and let her get stabbed to death, the first thing you might want to do is nab someone and put the focus on him, as quickly and dramatically as possible.
"I think that when Carlos was arrested," De Peña reflected in retrospect, "basically, they were just, they were out to find their goat."254
That was another lesson De Peña learned too late to help Carlos DeLuna: You have to know when to trust law enforcement to help you make your case and when to prove it yourself, the way Rene Rodriguez had.
* * * * *
"The sooner the better" was one more lesson the case taught. One of the biggest mysteries the out-of-town investigators failed to solve in 2004 was what happened to the physical evidence in the case over the preceding two decades.
DNA analysis didn't exist in 1983 when DeLuna was being prosecuted.255 But even today, the bloody murder knife, beer cans, cigarette butt, and cash, among other things that Escobedo and Infante picked up at the Sigmor store,256 could still have traces of genetic material that modern forensic analysis can detect and link to a human being.257
In 2004, when the investigators looked in the courthouse vault for the evidence, they found evidence boxes indexed to cases from long before 1983. The boxes were chock full of guns, knives, clothing, and all other manner of evidence. But there was no box for the DeLuna case there.258
They soon found a court document explaining why: Assistant District Attorney Ken Botary had checked out all the materials right after the trial in July 1983 and never returned them.259
Three times the investigators asked the D.A.'s office for all of its materials in the Carlos DeLuna/Wanda Lopez case, relying on Texas's broad Public Records Act. In response to the first request, Assistant District Attorney Lance Kutnick (son of psychiatrist Joel Kutnick) said the office had no records.260 A second request netted about thirty pages of police reports.261 A third request made in person by a respected local attorney prompted a phone call from the D.A.'s office saying there were some "boxes" waiting for the investigators to review. They'd better come look at them soon, because the office was planning to discard them.262
When the investigators arrived two hours later, they received a lot more pages of documents than they'd received before—about two hundred, including a stack of rap sheets for men named Carlos Hernandez with Escobedo's notes indicating that she passed them on to the prosecutors in early May 1983.263 But there were no boxes containing the physical evidence in the case. Those items were nowhere to be found.264
Any DNA from the case remains at large.
* * * * *
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.
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.
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.").
See Chapter 10, notes 140–167 and accompanying text.
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).").
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.
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. . . .
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);
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.).
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);
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.