HRLR
Los Tocayos Carlos
Chapter 11
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All Chapter 11 Footnotes

There were complaints, as well, about how De Peña delivered his own argument to the jury. He was so anxious about making his first ever "closing statement" to a jury in a big case that he couldn't keep his voice up. The court reporter, whose job it was to take down everything the lawyers and witnesses said, couldn't hear DePeña.97 Neither, it seemed, could the jurors.98

Later, the court reporter joked that the only thing she heard De Peña say clearly during the entire trial was "Oh shit!" That was De Peña's reaction from his seat when the prosecutor brought out some damaging information the defense lawyers hadn't known about, because they'd had failed to interview several people on the witness list the prosecutor had given them before trial.99 The inexperienced lawyer took the court reporter seriously when she twitted him about having to include his profane remark in the official transcript of the case.100

* * * * *

Unlike De Peña, James Lawrence was an experienced criminal defense lawyer, one who prided himself on how many criminal cases he could handle in a year. His cases came mostly on assignment from the courts to represent people who couldn't pay, like DeLuna.

There were some in Corpus who didn't think much of Lawrence as a defense lawyer. Detective Eddie Garza said Lawrence would meet his clients for only a "few minutes," get them to plea bargain, and "collect his fee."101 Others thought his experience counted for a lot, rating him honest and "excellent."102

When the out-of-town investigators first asked Lawrence about DeLuna, he said he didn't remember the capital-murder case at all. It was lost in the shuffle of the hundreds he'd handled that year.103 He showed the investigator a log book listing all of his cases. There indeed were hundreds each year.104

Steven Schiwetz, one of the prosecutors on the case, was able to refresh Lawrence's memory. Schiwetz approached Lawrence because he was "hot under the collar" that investigators were looking into the case so many years later.105

Even after talking to Schiwetz, however, Lawrence said he couldn't remember much.106 The police found his client hiding under a truck, he recalled, which didn't look good.107 DeLuna told him "he ran because he was on parole. He saw what was going on [inside the Sigmor station] and then heard sirens [and ran] away."108

Lawrence also brought up "the money thing": that convenience store clerks don't keep nearly as much money in the cash drawer as DeLuna had on him.109

Lawrence especially remembered that the police had no physical evidence linking DeLuna to the crime, which was odd given all the blood at the scene. The lawyer also recalled that the witness who saw the killer coming out of the store gave a description of another person, not DeLuna.110 "Hell, if that isn't reasonable doubt I don't know what is," he said.111

* * * * *

After Lawrence was assigned the case in April, De Peña breathed a sigh of relief and went on with the rest of his struggling practice. At a hearing on June 10 at which the judge considered DeLuna's request for a postponement of the trial because his lawyers weren't ready, the judge asked De Peña why he hadn't worked on Carlos's case or met with his client since early March.112 De Peña admitted knowing "there was leg work that needed to be done" on the case but said he hadn't done it "because of trying to maintain my own practice and my own cases."113 No one asked De Peña why his appointment to represent DeLuna on capital murder charges didn't count as one of the lawyer's "own" cases.114

See supra note 99.

Bruce Whitman's Notes on Interview with Eddie Garza, Corpus Christi Police Detective (Aug. 23, 2004) at 1 (offering opinion critical of Lawrence's competence, diligence, and track record as a criminal defense attorney, and stating that he is "court appointed, collects his fees, and forces his clients to plea bargain without regard to guilt or innocence");

James S. Liebman's and Bruce Whitman's Notes on Interview with Eddie Garza, Corpus Christi Police Detective (Aug. 25, 2004) at 1 (offering opinion critical of Lawrence's diligence as a criminal defense attorney, and stating that he is "Paid $2000/case. Meets with client a few minutes before they go to court. $2000/case x 5 cases a week, and it's a lot of money. Even murder cases, big cases . . . .").

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, 10 (discussing "better lawyers" who typically handled capital cases, including "James Lawrence. Excellent attorney"; "as honest as the day is long");

James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 24, 2004) at 1 ("Jimmy Lawrence brought in [to DeLuna case] because Hector was out of his league.").

James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (July 12, 2004) at 1 ("No memory of case. . . . Claims not to [remember it]. [Investigator] Let[s] him [Lawrence] read news coverage [on case]. . . . Claimed he didn't remember a thing.");

see James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1 ("[O]f all the cases I tried, I remember the DeLuna case the least. Whole damn case and I can't remember it. Schiwetz approached JL [James Lawrence] because S[chiwetz] was hot under collar . . . about investigation [into DeLuna case then being conducted]. But JL cannot remember. He asked S to describe case. Still can't remember much.").

See James S. Liebman, Outline of the DeLuna Investigation (Nov. 5, 2005) at 70 ("When we first asked [James Lawrence during the 2004–05 investigation] about DeLuna's conviction leading to his execution, Lawrence told us the volume of his work was such that he had [no] recollection of representing DeLuna at trial or on direct appeal (he was [also] DeLuna's only lawyer on direct appeal).")

James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1, 2 (stating that "1 month ago, JL [James Lawrence] ran into Schiwetz in court. Schiwetz brought [up] DeLuna. JL said to Schiwetz, of all the cases I tried, I remember the DeLuna case the least. Whole damn case and I can't remember it. Schiwetz approached JL because S was hot under collar by about investigation. But JL cannot remember. He asked S[chiwetz] to describe case. Still can't remember much.").

See supra note 105.

James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1 ("JL [James Lawrence] remembers CDL [Carlos DeLuna being discovered] under car; money found on him. . . . The problem was he was found under the truck so close to the station.").

James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1 ("I remember him telling me he ran because he was on parole. He saw what was going on in there (inside [the gas] station) and then heard sirens running [i.e., and ran] away. . . . He (CDL [Carlos DeLuna]) told me I saw the cops and I just took off running because I knew they were going to blame me. I saw him (someone else [committing the crime]) and I ran away. When I heard the cops.")

James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2 ("Today I would use the money thing; they don't keep that much money in their drawer.").

James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2:

Everything pointed at CDL, but no physical evidence against him. No blood on him, knife; close [contact with victim during struggle] and no blood on clothes; raining that night; it was wet. That was their out. My client wasn't going to take a deal because he said "I am innocent." He [DeLuna] told me from the beginning that [he] saw something, heard sirens and cops wouldn't believe him, so he ran. You almost have to believe him because no physical evidence. . . . Fact of physical evidence (none) bothered me. . . . [Investigator] asks are you 100% sure he [DeLuna] did do it. JL [James Lawrence]: "Hell no. Don't know what percentage I'd put on it." Things that bothered him were no physical evidence and that his guy saw a man coming out of that store who described another person. Hell if that isn't reasonable doubt I don't know what is.

James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2 ("Hell if that isn't reasonable doubt I don't know what is.");

see also James S. Liebman's Notes on Interview with James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna (Feb. 25, 2005) at 1 ("I prejudge my clients. They lie to you and say didn't do it. Worry about perjury. But, says JL [James Lawrence], I don't recall my pre-judgment about this case.").

Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 18 ("Q. [by Judge Wallace C. Moore] Is it correct when the Defendant asserts that you didn't visit him between March the 1st and the present time? [De Peña:] That is correct.").

Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 17–18:

I [Hector De Peña] was trying to do—work up part of the case and—and—and work on this matter at the same time, which is why in April I requested that the Court provide co-counsel in the case to assist me with it because I felt like the—that there was some leg work that needed to be done that I could not do because of trying to maintain my own practice and my own cases and case load scheduled that I had, as well as trying to work on this case at the same time.

See Def.'s First Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 1 ("Hector DePena, Jr., has not come to see [DeLuna] since March 1, 1983, the only time he ever came, nor has he filed any motions in [DeLuna's] behalf.").

Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 17–18:

I [Hector De Peña] was trying to do—work up part of the case and—and—and work on this matter at the same time, which is why in April I requested that the Court provide co-counsel in the case to assist me with it because I felt like the—that there was some leg work that needed to be done that I could not do because of trying to maintain my own practice and my own cases and case load scheduled that I had, as well as trying to work on this case at the same time.

See Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, Closing Arg., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 517

("One of the things that apparently seems to be—a point that stuck out in my mind and I felt like might—I felt like would be beneficial to you—[The Court Reporter]: I'm sorry, Hector, I can't hear you. [De Peña]: I'm sorry.").

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:52:39–12:53:11 ("I had been accused the whole time we were [in] trial of speaking too quietly, and the court reporter said she had trouble hearing me.").

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:52:39–12:53:11:

I had been accused the whole time we were [in] trial of speaking too quietly, and the court reporter said she had trouble hearing me. And I think I turned to Jim [Lawrence] at that point [when the prosecution produced unexpected evidence from a witness the defense had known about but did not interview] and said something like "Oh, shit." She [the court reporter] later informed me she had heard that and she was going to have to put it in the transcript. To this day I don't know if it's in the transcript or not. [It is not in fact in the transcript.]

Chapter 11
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