One other thing Lawrence and De Peña never received from the police before trial was the information Eddie Garza had picked up from his sources on the street,265 that a man named Carlos Hernandez was telling people he killed Wanda Lopez and that Carlos DeLuna had taken the fall.266
"Carlos Hernandez" was the name De Peña and Lawrence were looking for.267 If the two defense lawyers had known that police had picked up a particular, 5'7" tall, 160-pound, wavy-haired Hispanic man named Carlos Hernandez on the evening of April 3rd after he was caught lurking outside a 7-Eleven with a knife,268 that would have given their investigation just the direction it needed in the face of their client's fear and silence.269
So would knowing that Infante, the I.D. tech on DeLuna's case, had shown a lot of interest in this particular Hernandez's fingerprints, back when the man was arrested in April.270 And that, of the seven "Carlos Hernandez" rap sheets Detective Escobedo passed on to prosecutor Schiwetz in May, only the one belonging to this Carlos Hernandez revealed a history of violence and convictions for convenience store robberies.271 And that this Hernandez was well known to Escobedo and prosecutor Botary as the prime suspect in the knifing and beating death of a young Dahlia Saucedo three years before.272
Learning any of those things, De Peña told the investigators, "I mean, that obviously would have been a quantum leap in the defense had we gotten this information." Each piece of information would have made a "great deal of difference," a "tremendous difference," if any of them had been shared before trial. But none were.273
"Leaves a pretty bad taste in my mouth, even now," De Peña said, many years later.
Figure 31. July 1983 TV news images of (from left) prosecutors Steven Schiwetz, and Kenneth Botary, defendant Carlos DeLuna, and defense lawyers James Lawrence and Hector De Peña.
* * * * *
In fact, Lawrence and De Peña did get the name "Carlos Hernandez" before the trial started. What they got, however, was very little and very late.
The lawyers spent July 5th to July 13th selecting a jury to decide DeLuna's case. The judge gave the jurors a day off before the trial started on Friday July 15th.
For months until then, Carlos DeLuna had urged first De Peña, and then Lawrence, to find the unnamed—and frighteningly un-nameable—man he said he'd seen attacking Wanda Lopez. He begged them to ask the judge for more help and more time. He even asked the judge himself, in his awkwardly scribbled missives with their jumble of ill-fitting words. He hoped that any trouble proving a case against him would push the police themselves to look elsewhere.
On July 15th, time ran out. Trial was going to start without anyone calling the name of the man he saw. "We're down to the closing moments of this thing before we went to trial," De Peña recalled, when Carlos finally gave his lawyers the name himself: Carlos Hernandez.274
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—
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.
See supra Chapter 9, notes 73–75 and accompanying text.
See supra Chapter 9, notes 79–85 and accompanying text.
See supra Chapter 9, notes 93–105 and accompanying text.
See supra note 266.
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.").