HRLR
Los Tocayos Carlos
Chapter 11
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All Chapter 11 Footnotes

But those two very common proper names were the only thing he would give his lawyers.275

"'I gave you the name,'" De Peña remembered DeLuna saying, "and that was as far as he was going to go." He was a "dead" man, he said, whether the jury condemned him or not, if Hernandez found out that DeLuna "put the bite on" him.276

De Peña believed Carlos Hernandez existed, but he also could tell that "Carlos DeLuna was not going to assist me in actually pinpointing who the real Carlos Hernandez was."277

"We didn't have doodly," Lawrence confirmed, "no height, weight, date of birth."278

If he'd just had a date of birth, Lawrence lamented, "I could've found [him]. We never got that far because we just had a name."279 With their client again putting the burden on them to prove his defense, Lawrence and De Peña did what they had done earlier with their lead about Mary Ann Perales. They immediately passed the name on to Escobedo, Botary, and Schiwetz, still relying on the police and prosecutors to prove the defendant's case and blow up their own.280

The prosecutors had another lesson in store for Hector De Peña.

Sources

Court Decisions

  1. Brady v. Maryland, 373 U.S. 83 (1963);

  2. Francis v. Franklin, 471 U.S. 307 (1985);

  3. Gregg v. Georgia, 428 U.S. 153 (1976);

  4. Jurek v. Texas, 428 U.S. 262 (1976);

  5. Kyles v. Whitley, 514 U.S. 419 (1995);

  6. Lockett v. Ohio, 438 U.S. 586 (1978);

  7. Sandstrom v. Montana, 442 U.S. 510 (1979);

  8. Zant v. Stephens, 462 U.S. 862 (1983);

Testimony in Court and Depositions

  1. George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., June 20, 1983);

  2. George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., July 18, 1983);

  3. John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., June 20, 1983);

  4. John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., July 18, 1983);

  5. Julie Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., July 18, 1983);

  6. Blas Avalos, Stepfather of Carlos DeLuna, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983);

  7. Carlos DeLuna, Defendant in Killing of Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983);

  8. Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983);

  9. 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);

  10. James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983);

  11. James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983);

  12. James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Penalty Phase Closing Arg., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);

  13. Mary Ann Perales, Witness Against Carlos DeLuna, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983);

  14. Joseph Rupp, Nueces County Medical Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);

  15. Mark Schauer, Corpus Christi Police Officer, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983);

  16. Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);

  17. Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist., July 15, 1983);

  18. Tr. of Pretrial Hr’g, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983);

  19. Tr. of Pretrial Hr’g, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 10, 1983);

  20. Trial Tr.—Alphabetical List of Witnesses, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983);

  21. Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983);

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:

Q. I also took down these notes [from a prior interview with DePeña] . . . "Carlos DeLuna was very definitely scared of Carlos Hernandez. He said, 'I'm dead whether I'm out or in if I identify him,'" meaning—

A. Carlos Hernandez.

Q. Carlos Hernandez. "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.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:18:14–12:19:26:

A. I worked with a fellow by the name of Ray Flores, who was then the I.D. technician, identification person for the Nueces County Sheriff's Department. And we culled through the records trying to find all of the Carlos Hernandezes that had at any time been booked in an attempt in an effort to try and locate our Carlos Hernandez. In fact, we got pictures. If I'm not mistaken, I think I even managed to put together a photo lineup of some of the Carlos Hernandez[es] that had been through the system and took it to Mr. DeLuna to see if he would identify the correct Carlos. But it was at that time that he 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 and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 3 ("He gave me a name. We didn't have doodly, no height, weight, DOB. If I'd had a DOB I could've found [him]. We never got that far because we just had a name.").

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.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:23:05–12:23:22 ("I believed that he existed, I just felt like Carlos DeLuna was not going to assist me in actually pinpointing who the real Carlos Hernandez was.").

James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 3 ("He gave me 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.").

James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 3 ("He gave me 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.").

Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 458–59 (testifying that prosecutor Schiwetz asked him "four days" before he testified (he testified on July 19, 1983) to compare scene prints to prints of every "Carlos Hernandez" between ages 20 and 30 for whom CCPD had fingerprints]);

Linda Carrico, DeLuna Is Scheduled To Be Executed Tomorrow, Corpus Christi Caller Times, Oct. 14, 1986, at B1 ("It was on the first day of the trial, Schiewtz said, that DeLuna told his court-appointed attorney, Jon [sic—Jim] Lawrence, about Hernandez.");

Steve Mills & Maurice Possley, 'I Didn't Do It. But I Know Who Did,' Chi. Trib., June 25, 2006, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=5 ("De Luna's attorneys passed on Hernandez's name to the prosecution. But Lawrence and DePena can't recall whether they or their investigator pursued the possibility that Hernandez killed Lopez—apparently leaving it to the state to check out their own client's alibi").

Chapter 11
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