HRLR
Los Tocayos Carlos
Chapter 11
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All Chapter 11 Footnotes

Carlos's "mindset," the lawyer recalled, was that because he was innocent, the prosecutors wouldn't be able to come up with evidence of his guilt.81 "They wouldn't find him guilty" because "there wouldn't be enough facts."82

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DeLuna's simple way of thinking was another part of DePeña's problem.

"From a standard education perspective, you might say [Carlos] was retarded," De Peña believed. The young man could survive well enough on the streets, but he was "from [a] clinical point of view, maybe retarded."83

De Peña didn't, however, expect Joel Kutnick, the psychiatrist assigned to look into DeLuna's mental state, to say DeLuna was impaired. "Kutnick always found them competent if they were minimally oriented in time and space," the lawyer recalled.84

De Peña had higher hopes for James Plaisted, the psychologist assigned by the judge. Plaisted was a member of De Peña's Baptist church and active with the youth group. It was only later that De Peña realized Plaisted was no saint. He was "preying on little kids," De Peña said. Their church referred kids to him for counseling, and some got molested.85

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New to big criminal cases, De Peña hadn't bargained for this. A client whose intelligence he doubted. Who insisted he was innocent and refused to take a deal or argue excuses. But who was too scared to name the man he saw committing the crime.

His client, De Peña realized, wanted him to find the guy on his own, or else get the police to do it. Faced with this state of affairs, De Peña stewed for a month without doing anything. Word went around among the experienced criminal lawyers that De Peña was floundering.86

On April 6th, De Peña called for reinforcements. In the first of two requests to Judge Blackmon that day, De Peña asked for a psychiatrist to examine Carlos. His client, he said, had exhibited "symptoms of severe disorder or mental defect for many years" and couldn't help with his defense.87 It was this request that led the judge to assign Kutnick and Plaisted to take a look.88

De Peña's other request was for a second lawyer on the case. Two months in, De Peña realized he couldn't go it alone.89

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On April 15, Judge Blackmon assigned James Lawrence to work with De Peña. He also pushed back the date for trial, to June 20.90

When the trial took place, Lawrence pretty much ran it for the defense. Of the thirty-five witnesses called to testify by the state, Lawrence cross-examined twenty-four. De Peña cross-examined one—a minor witness at that. No one cross-examined the ten remaining witnesses.91 Of the five witnesses the defense presented, Lawrence prepared two—including the single, main witness, Carlos DeLuna himself—and DePeña prepared three minor witnesses.92 De Peña happily took a back seat.93

The two lawyers didn't coordinate their work very well. Years later, De Peña said he was "aghast" at the all-important final argument Lawrence made at the very end of the case. De Peña felt it insulted the jurors.94 During the argument, De Peña remembered exchanging glances with a lawyer friend of his who was sitting with De Peña's wife in the courtroom. His friend made a gesture like hammering a nail; he, too, thought Lawrence was putting the last nail in DeLuna's coffin.95 "But I couldn't control that part of it," De Peña said, explaining why he let it pass. "I didn't know just how [Lawrence] was going to present his final argument."96

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Sources cited supra note 80.

Sources cited supra note 80.

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 5 ("HDP [Hector De Peña] says that, 'from a standard education perspective, you might say CDL [Carlos DeLuna] was retarded; my experience with these guys is that they are street smart; they can survive on streets. From clinical point of view, maybe retarded; but in true to life terms he was ok.'").

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 5 ("Kutnick always pro-state [i.e., pro-prosecution]; always found them competent if they were minimally oriented in time and space.").

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 6 ("Plaisted preying on little kids. His church (HDP's [Hector DePeña's] church), Paradise Baptist, would find Plaisted patients. Baptist church school would refer kids to Plaisted, with some getting molested.").

Peso Chavez's and James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 1, 9 (recalling that the court "brought Jimmy (Lawrence) in (to the Carlos DeLuna case) to clean up Hector's [De Peña's] mess" and that "[w]ord had gotten out. Matter of some discussion [before trial]. Hector [was not handling it well]. That's why they brought in Jimmy. He was soft spoken so he wouldn't yell at Hector. Could slide into the case without offending Hector.");

James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1 ("When Hector [De Peña] was appointed to that case (DeLuna), we were all aware there were problems in the case; and that's why they appointed Jimmy Lawrence later on. Jimmy Lawrence brought in because Hector was out of his league. . . . Sloppy investigation; should have been 2 people from beginning");

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 not competent to handle a capital case at the time).

Def.'s Mot. for Ct. Appointed Psychiatrist at 1–2, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Apr. 6, 1983):

II. Defendant's court appointed attorney believes that the Defendant is afflicted with some sort of mental disorder that may well have destroyed the Defendant's ability to perceive the wrongfulness of his conduct or his capacity to conform his conduct to the requirements of the law he allegedly violated; that the Defendant is presently in such a state as to render him unable to adequately assist his Court appointed attorney in the preparation of an effective defense to the charge against him. . . . The Defendant's attorney has been advised by friends of the Defendant that he has had symptoms of severe disorder or mental defect for many years.

Order of Examination, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. May 16, 1983) at 1, 3;

see supra Chapter 5, notes 141–150 and accompanying text (discussing and citing reports filed by Drs. Kutnick and Plaisted).

Def.'s Mot. for Ct. Appointed Co-Counsel, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Apr. 5, 1983) at 1–2 ("This attorney feels that it is necessary that additional counsel be appointed in order to aid this attorney in the proper defense of Carlos De Luna, due to the seriousness and complexity of this case in addition to the need for full and proper investigation in this case as the defendant is charged with offense of capital murder.").

Order on Mot. for Ct. Appointed Co-Counsel, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Apr. 15, 1983) at 1;

Arg. of Counsel on Pretrial Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 4, 10 (noting that an April 15, 1983 trial date had been set and then postponed until June 20, 1983).

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

De Peña's later recollection that he and Lawrence "took turns in the cross-examination of the witnesses" is not consistent with the transcription of the trial, which indicates which lawyers conducted the cross-examination of which witnesses. See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:42:40 ("Jim and I probably equally tried to work together in terms of putting a defense together. As I said, it was a very difficult case to put a defense together simply because our client never would come across with a full disclosure when we first started out. . . . And in terms of preparing the case, we pretty much prepared it together. We took turns, in that we took turns in the cross-examination of the witnesses, and we even split up the final arguments.").

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

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:42:40 (describing his own role as "to handle the case as second chair").

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:42:40–12:45:14:

We . . . split up the final arguments [between De Peña and Lawrence, with Lawrence going last]. All I can say is, I had a real tough time with my co-counsel's final closing argument in the case . . . . He basically—part of the problem that I had with it was that he got into admonishing the jury that, you know, they shouldn't even consider the death penalty, you know, because they weren't God. I had a tough time with it, because we spent so much time trying to qualify a jury as to whether or not they could consider the full range of punishment. These were people who would go from zero to death, and then to say, well, you know, "You're not God and you can't give this guy the death penalty." But I couldn't control that part of it, I didn't know just how he was going to present his final argument.

See 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) at 63–65 (calling Texas's death penalty statute—which the jurors selected for the case had all said they believed in and had sworn to apply conscientiously—"ridiculous").

See also James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 4 ("HDP [Hector De Peña] tells story of being 'aghast' during James Lawrence's closing argument. His [lawyer] friend Albert Peña was in the courtroom to watch the closing arguments and made a motion showing a man nailing the last nail into CDL's coffin, because the argument was trying to talk a death qualified jury out of imposing the death penalty.").

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:45:32–12:46:50:

There was another attorney there watching the trial, and he happened to be a friend of mine and was, took time to sit next to my wife. As we got into the final arguments of this case, in the penalty phase, Mr. Lawrence apparently started harrying the jury about the fact that they shouldn't play God in this situation and give the defendant the death penalty, and my wife says at that point that Mr. Peña sort of chuckled and looked at her and sort of made the notation like he [was] hammering down the top of a coffin.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:44:16–12:45:14 ("But I couldn't control that part of it, I didn't know just how he was going to present his final argument.").

Chapter 11
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