HRLR
Los Tocayos Carlos
Chapter 11
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Making things even more difficult, that second, sentencing trial was a new concept back in 1983. Courts had only started using the procedure a few years before Carlos DeLuna was arrested,15 and Texas had carried out its first execution under the new procedure only two months before.16 Even experienced capital murder lawyers were still getting used to the new rules in 1983.17

"Let's be honest," Carlos Hernandez's lawyer Jon Kelly said, explaining to the private investigators how things went in capital cases in 1983. Most capital murder verdicts were challenged—and more than a few were overturned by appeals courts—because of "incompetence" of defense lawyers trying to deal with all the complications and difficulties of a capital trial with few resources to draw on.18

It was understood that lawyers assigned to represent "indigents" in capital murder cases were "going to be under pressure" from prosecutors, the court, the client, and the press and had to be able "to handle a myriad of things."19 That's why, Kelly said, the assumption in Corpus Christi at the time was that you'd only get assigned to represent someone threatened with death if the judge thought you had "enough brains" and experience to "make sure that basic rights are protected" despite all the difficulties you faced.20

"In those days, it was an honor to be an attorney in a capital murder case,"21 Kelly explained—a sign that the judge "thinks you're good," that you're in the highest echelon.22

* * * * *

When Judge Blackmon appointed Hector De Peña to represent Carlos DeLuna,23 the criminal defense lawyers in town were shocked and a little resentful.24 It wasn't just that De Peña wasn't of the caliber of criminal defense attorneys usually tapped for that kind of assignment.25 It was that De Peña wasn't a criminal defense lawyer at all.26 He was a small-time general practitioner,27 the kind of lawyer who takes whatever comes in the door: wills, bankruptcies, contracts for the sale of a home, speeding tickets, you name it.

Lawyers like that didn't usually handle a lot of major criminal cases, let alone ones that ended up in actual trials in court in front of a jury. De Peña was no exception. When he was assigned the DeLuna case, he had never represented a criminal defendant in front of a jury on any kind of serious criminal charge, let alone a capital murder charge.28 As Jon Kelly told the investigators, with all due respect for a Corpus colleague who later became a pretty good judge,29 Hector De Peña, Jr., wasn't on anyone's mental list of lawyers you'd consider for a capital murder case.30

Other opinions were blunter: De Peña was incompetent to handle a capital case.31 He was out of his league.32 He may not have been "up to a capital murder [case]."33

No one knew for sure why Blackmon appointed De Peña to represent DeLuna, but there was talk. It was rumored that De Peña was having trouble making ends meet. His father, Hector, Sr., was a long-time local judge who had some clout with voters (judges are elected in Texas) and other judges. Lawyers in town speculated that Blackmon's assignment was a favor to Hector, Sr. on behalf of a son who was short on cash.34 "You could make $15–20,000 in a month on a capital case," Kelly pointed out. "That was a nice piece of change."35

At least part of the speculation was true. In 1984, a year after representing Carlos DeLuna for capital murder, De Peña represented himself in a bankruptcy filing. His papers said he had almost $50,000 in unpaid debts going back as far as 1969, with only $8,000 in assets consisting mainly of a 1982 Saab.36

See, e.g., Jurek v. Texas, 428 U.S. at 270; Gregg v. Georgia, 428 U.S. 153, 179–80.

Death Penalty Information Center, Charlie Brooks, http://www.deathpenaltyinfo.org/charlie-brooks (last visited Mar. 6, 2012) (describing the State of Texas' execution of Charles Brooks on December 7, 1982, the State's first execution under its modern death-sentencing procedures and the first execution under legal authority ever carried out by lethal injection).

See, e.g., Gary Goodpaster, Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 328–34 (1983) (describing the importance and difficulty, even for experienced lawyers, of adapting strategies and styles to the demands of bifurcated guilt-innocence and capital-sentencing procedures and encouraging lawyers to consider ways to unify their strategies at two stages, where the outcomes sought and reasons for them—for example, "acquit me because I am innocent" versus "lessen my punishment because I have good excuses for committing the crime"—will often be confusing and appear contradictory to the jury).

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).

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 supra note 19.

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21–07:16:59 ("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.").

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21–07:16:59, 07:17:24 ("[I]f you've been named to do capital murder, you think you're, you know at least one judge thinks you're good. Probably more.").

See 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 07:13:01–07:17:24:

Q. Do you remember any discussion around the courthouse about the situation with Carlos DeLuna's representation at the beginning of that case, and what that discussion was? . . . .

A. Well, the person that was appointed was a competent attorney. Not a real criminal attorney. He was in general practice. He was the son of a judge. He was having some difficulty making ends meet. But, you know, hey, we all do in private practice. But the kind of, what I . . . intimated was that Hector [De Peña] needed some help [financially] and they appointed him to the case. We all kind of went [makes skeptical eye-rolling motion], you know. . . . You have to understand, 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. Let's be honest, most capital murder cases are overturned because of incompetence of counsel. It [being appointed to represent a capital defendant] means that the judge thinks you've got enough brains to at least get through it, 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. Hector was not a bad lawyer at all. He later became a very good judge. But none of us thought that Hector was of that caliber as a criminal attorney. Good judge later, but [shakes head] no.

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:17:24 ("There's always a little . . . resentment [by other lawyers about De Peña's appointment to represent DeLuna], because if you've been named to do capital murder, you think you're, you know at least one judge thinks you're good. Probably more. And if someone that you don't think is at your level is appointed, it's kind of an affront, isn't it? It's pride.");

James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1:

He [De Peña] wasn't even on the (judges' mental) list of decent criminal defense lawyers to appoint to homicide or capital cases. His dad was a judge and maybe his dad let it be known that his son needed money. You could make 15–20,000 in a month on a capital case. That was a nice piece of change. When Hector was appointed to that case (DeLuna), we were all aware there were problems in the case . . . Hector was out of his league. Hector didn't make money as a lawyer. . . . We were shocked when Hector got appointed (to DeLuna). Only reason we could think of was that he needed the money. . . . Hector . . . was probably in financial trouble; he undoubtedly was in financial trouble. Hector . . . had no business doing a capital case . . . .

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59, 07:17:24 ("Hector [De Peña] was not a bad lawyer at all. He later became a very good judge. But none of us thought that Hector was of that caliber as a criminal attorney [to be appointed to a capital case]. Good judge later, but [shakes head] no."; "There's always a little . . . . . . resentment [by other lawyers about De Peña's appointment to represent DeLuna], because if you've been named to do capital murder, you think you're, you know at least one judge thinks you're good. Probably more. And if someone that you don't think is at your level is appointed, it's kind of an affront, isn't it? It's pride.");

James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1:

He [De Peña] wasn't even on the (judges' mental) list of decent criminal defense lawyers to appoint to homicide or capital cases. His dad was a judge and maybe his dad let it be known that his son needed money. You could make 15–20,000 in a month on a capital case. That was a nice piece of change. When Hector was appointed to that case (DeLuna), we were all aware there were problems in the case . . . Hector was out of his league. Hector didn't make money as a lawyer. . . . We were shocked when Hector got appointed (to DeLuna). Only reason we could think of was that he needed the money.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 11:59:06–12:00:00 (describing his law practice at the time he was appointed to represent Carlos DeLuna as "basically, private practice . . . as a general practitioner, both in state court and federal court");

see Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21 ("[T]he person that was appointed [to represent DeLuna] was . . . [n]ot a real criminal attorney. He was in general practice. He was the son of a judge. He was having some difficulty making ends meet. But, you know, hey, we all do in private practice.").

See supra note 26 and accompanying text.

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4 ("This was one of my first trials. My wife helped me.");

see Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21 ("[T]he person that was appointed [to represent DeLuna] was . . . [n]ot a real criminal attorney. He was in general practice. He was the son of a judge. He was having some difficulty making ends meet. But, you know, hey, we all do in private practice.");

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 ("After authorities charged De Luna with the slaying, the court appointed Corpus Christi attorney Hector De Pena Jr. to defend him. . . . [T] his was De Pena's first capital case . . .").

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59 ("He later became a very good judge.");

see Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 11:59:06 ("And basically, private practice for about 14 years, as a general practitioner, both in state court and federal court. And I ran for a judicial seat once before . . . [and] I lost that one and then I ran again in 1986, and I took the bench in January of '87.");

Transcribed Videotape Interview with Albert Peña, Lawyer for Jesse Garza in Dahlia Sauceda Case, in Corpus Christi, Texas (Feb. 25, 2005) at 18:25:07 (referring to "Hector de Peña Junior, who later became judge").

James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 23, 2004) at 1 ("He [De Peña] wasn't even on the (judges' mental) list of decent criminal defense lawyers to appoint to homicide or capital cases. . . . Hector was out of his league. . . . We were shocked when Hector got appointed (to DeLuna).");

see Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59, 07:18:27 ("Hector was not a bad lawyer at all. He later became a very good judge. But none of us thought that Hector was of that caliber as a criminal attorney [to be appointed to a capital case]. Good judge later, but [shakes head] no."; "Q. Who was in that upper echelon [of lawyers qualified to handle a capital case] at that time? A. Oh, jeez—Probably about ten guys. [Names some lawyers] . . . There were a number. He was not amongst them. Q. And when you say 'he,' you mean—A. I mean Hector, Hector DePeña. He was a good judge, and a competent attorney. I'm not saying he was a turkey. But I don't know if Hector was up to a capital murder.");

James S. Liebman & Bruce Whitman's Notes on Interview with Eddie Garza, Corpus Christi Police Detective (Aug. 25, 2004) at 1 ("Hector [De Peña] as attorney: not good, but fair. Same category as Jim Lawrence; hung around courthouse and got appointments. . . . His list of best '1st chair' appointments . . . [does] 'not [include] Hector dePena;' he wasn't on the list.").

James S. Liebman's Notes on Interview with Bill May, Corpus Christi Criminal Defense Lawyer and Former Assistant District Attorney, in Corpus Christi (July 13, 2004) at 1 (opining that De Peña was "totally incompetent" to handle a capital case at the time).

James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1 ("Hector was out of his league" in the DeLuna case. . . . We were shocked when Hector got appointed (to DeLuna) . . . . Hector . . . had no business doing a capital case . . . .");

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:16:59, 07:17:24 ("[N]one of us thought that Hector was of that caliber as a criminal attorney [to be appointed to a capital case]."; describing De Peña as not at the level of the top criminal defense lawyers in Corpus);

Peso Chavez & James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 1 ("Hector de Peña was not a good lawyer [to handle the DeLuna case].").

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 17:18:57 ("Hector DePeña. He was a good judge, and a competent attorney. I'm not saying he was a turkey. But I don't know if Hector was up to a capital murder.").

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21 ("He was in general practice. He was the son of a judge. He was having some difficulty making ends meet. But, you know, hey, we all do in private practice.");

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:17:24–07:18:27:

Q. Was there an explanation discussed about how he [Hector De Peña] might have come to be appointed to that case at that time though he was not in that upper echelon [of criminal defense lawyers qualified for a capital case].

A. He might have needed the money. His dad was a judge, a sitting judge at that point. He might have needed the money. Hector had been having a hard time. . . . It was just strange. There's always a little—In those days, not later, but in those days, a little resentment, because if you've been named to do capital murder, you think you're, you know at least one judge thinks you're good. Probably more. And if someone that you don't think is at your level is appointed, it's kind of an affront, isn't it?

James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1 ("His dad was a judge and maybe his dad let it be known that his son needed money. You could make 15–20,000 in a month on a capital case. That was a nice piece of change. . . . Hector didn't make money as a lawyer. . . . He was probably in financial trouble; he undoubtedly was in financial trouble [at the time he was appointed in DeLuna's case]. Hector . . . had no business doing a capital case . . . .").

James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1 ("You could make 15–20,000 in a month on a capital case. That was a nice piece of change. . . . Hector didn't make money as a lawyer. . . . We were shocked when Hector got appointed (to DeLuna). Only reason we could think of was that he needed the money.");

see 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 2 (granting a fee of $4,500 for 105 hours of representation in the DeLuna case);

James R. Lawrence's Application for Payment of Statutory Fee and Order Granting Application, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 26, 1983) at 2 (granting a fee of $5,000 for 310 hours of representation of DeLuna).

See Summary of Debts and Property, In re Hector De Pena, Voluntary Case: Debtor's Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984).

Chapter 11
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