HRLR
Los Tocayos Carlos
Chapter 11
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De Peña opened his law office in 1978.37 From the start, the bankruptcy papers show, his practice generated too little money to cover his rent, credit card bills, and car payments. For a time, he survived on loans from six different banks and credit unions, but by the early 1980s he began defaulting on the loans, and his creditors were hauling him into court.38 Every cent De Peña earned from assigned cases like DeLuna's went directly to the IRS for unpaid taxes.39 Adding to his problems, De Peña faced a malpractice suit claiming he failed to file a routine mechanic's lien to secure payment on a service contract he negotiated for a mom-and-pop refrigeration company.40

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De Peña himself acknowledged years later that the trial for Carlos DeLuna's life was one of his first jury trials of any sort, civil or criminal, minor or major.41

Because he was a "solo" practitioner, he had no other lawyers in his office to help out.42 "My wife helped me," he volunteered.43 She was a "motivator . . . on a big case."44

Not being a lawyer, however, De Peña's wife got emotionally involved in the case in a way Hector didn't, he recalled with a chuckle. She got mad at the games she thought the prosecutors played—making Hector look bad in front of the jury and that sort of thing. She couldn't believe that her husband would go out for a cup of coffee with the younger of the prosecutors, Steven Schiwetz, during breaks in the trial.45 Hector told her not to take it personally. The prosecutors were just doing their job. Lawyers could advocate inside the courtroom and be friends outside.46

Later on, though, Hector saw some wisdom in his wife's less trustful view. When he was handling DeLuna's case, he thought of prosecutors as "trying to find truth," as colleagues who would tell you whatever they knew about the case on a "handshake and gentlemen's agreement."47 Over time, though, he realized that some of them were simply looking for "notches in their belt" for every conviction they could get.48 "Rambo tactics," he called it. "Ends justify the means."49

De Peña thought he saw that distinction at play between the two prosecutors in Carlos DeLuna's case. "There was Ken Botary," he told the investigators, "the older . . . prosecutor, and then [Steven] Schiwetz, who was his second chair."50 "My opinion was that Mr. Botary was basically trying to make a name for himself"—he "was out to get a conviction."51 Schiwetz, De Peña believed, "was trying to see that justice was done."52

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The difference between the ideal and the reality when it came to prosecutors was one of De Peña's belated discoveries in the DeLuna case.

Another was that, as much as he needed the money, he was in no position to handle a capital case himself, even with his wife's moral support.

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Carlos DeLuna was arrested on Friday, February 4, 1983. De Peña got the assignment to represent DeLuna on February 7.53 The trial was scheduled to start on March 28 (it was later postponed),54 which didn't give him much time to come up with a strategy for both parts of the capital trial, get ready with questions for the state's witnesses, and prepare his own witnesses and physical evidence.

The lawyer's first task was to learn from Carlos himself, other witnesses, and the physical evidence whether the police had arrested the right guy. If there was any chance they did, De Peña also had to figure out if his client had any legal "excuses" (mental problems, say) that might reduce any crime to a less serious one, or at least persuade a jury to impose a sentence other than death. Getting that done required De Peña to interview all the witnesses and file written requests with the judge for at least three things: money for an investigator, a mental examination of his client, and an order telling the prosecutors to share their information in the case, including about other suspects.

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See Statement of Financial Affairs for Debtor Engaged in Business, In re Hector De Pena, Voluntary Case: Debtor's Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984) at 1 (listing 1978 as the year he commenced his law firm).

See Schedule A at 2–7, In re Hector De Pena, Voluntary Case: Debtor's Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984).

Statement of Financial Affairs for Debtor Engaged in Business, In re Hector De Pena, Voluntary Case: Debtor's Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984) at 1.

See Statement of Financial Affairs for Debtor Engaged in Business,In re Hector De Pena, Voluntary Case: Debtor's Petition, No. 84-D2129-C–4 (Bankr. S.D. Tex. Dec. 12, 1984) at 1; Pl.'s Original Petition, Martinez v. De Pena, No. 83–4893-E (Nueces Cty., 148th Dist. Tex. Oct. 14, 1983).

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 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 . . .").

See 15 Martindale-Hubbell Law Directory at TX77P (1994) (listing De Peña as a solo practioner).

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.").

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 6 ("My wife was . . . involved. She listened to the 911 tape with [Hector]; motivator to him on a big case.").

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4, 6 ("My wife helped me. She couldn't understand how I could fight him [prosecutor Steven Schiwetz] on the case inside the court, then go have a cup of coffee with Schiwetz afterwards. She was very mad at him. [JSL asks why?] Because she knew CH [Carlos Hernandez] existed and couldn't believe Schiwetz would argue he didn't exist. For HDP [Hector De Peña], it was just doing a [prosecutor's] job. It wasn't . . . personal with Schiwetz."; "My wife was peeved. That prosecutors said CH was figment of CDL's imagination; the 'phantom' comment. She knew there was a real person.").

See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:24:50–12:26:50:

I had the occasion at the time we tried this case to have my wife in the audience while this case was being tried. And she had a real difficult time understanding that, as lawyers, when one is an advocate for your client, you know, you're an advocate wholeheartedly. And during the course of the trial there was a lot of . . . trying to make the other side look bad, so to speak, in the trial of the case. And at one point, as this matter was reaching a conclusion—I don't know if it was after the jury was out—Steve made an offer to have a cup of coffee or something, and my wife didn't understand how the relationship in court could suddenly change once you walked out the door. And, explaining to her, I said, "You're advocates for your client, but once you walk out of there you can still talk to each other and have a cup of coffee."

See supra note 45 and accompanying text..

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 5 (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 supra note 47.

See supra note 47.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:41:52–12:42:16 ("[T]here was two prosecutors. There was Ken Botary, who was more or less sort of the, the older, lead prosecutor, and then Mr. Schiwetz, who was his second chair. My opinion was that Mr. Botary was basically trying to make a name for himself, and Mr. Schiwetz was trying to see that justice was done.").

See supra note 50.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:41:52–12:42:16 ("Mr. Schiwetz was trying to see that justice was done.");

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 5 ("Steve Schiwetz was the more liberal of the two prosecutors; would help you out some. Ken Botary's view was 'you've got to win it yourself, I'm not going to help you.' Ken was hard to talk to. He was out to get a conviction. Steve was looking for justice; not to win a case.");

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").

Tr. of Pretrial Hr'g, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 10, 1983) at 14 ("[by Judge Moore, addressing Hector De Peña] February the 7th, according to this, was your appointment date.");

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 1 ("On February 7, 1983, this Court appointed the undersigned attorney to represent Carlos De Luna, an indigent.").

See Letter from Hon. Walter Dunham, Jr., Judge, to Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Feb. 28, 1983) (scheduling arraignment on March 18, 1983, pretrial motions hearing on March 18, 1983 and trial to begin on March 28, 1983).

Chapter 11
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