HRLR
Los Tocayos Carlos
Chapter 11
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All Chapter 11 Footnotes

On June 9, with the trial set to begin eleven days later, Lawrence finally obtained permission from the court to spend the maximum $500 on an investigator.138 The next day, Lawrence asked Judge Moore to postpone the start of the trial because he hadn't had time to investigate or prepare.139 In an unusual move, his type-written motion asked the judge to kick De Peña off the case for not doing enough work and to assign a new lawyer to replace De Peña.140

Somewhere along the way, the sentence asking for De Peña to be replaced was crossed out in ink, and the judge never ruled on it.141 But Lawrence's statements criticizing De Peña's lack of diligence remained in the document as a reason for a postponement.142 That's what caused the judge to ask De Peña why he'd dropped out of the case between March and June.

Lawrence then explained his own failure to get going on the case143—and why he hadn't yet talked to De Peña to find out what his co-counsel knew. Still displaying an unusual amount of public candor about a fellow lawyer, Lawrence excused his failure to talk to his co-counsel by saying that he was pretty sure that De Peña, after months on the case, knew "even less" about it than Lawrence did after only a few weeks.144

The judge refused to postpone the trial.145

A week later, DeLuna tried to take matters into his own hands, scribbling a statement entitled "Ineffective Counsel" and sending it to the judge. The words Carlos strung together were gibberish: "Conflict and the relationship of client and attorney can not be reached, therefore, the Defendant cannot go safely to trial and have this said attorney [De Peña] prepare his defense."146 But the gist, and DeLuna's desperation, were clear enough. He couldn't safely rest his life in De Peña's hands. Or, as he wrote in another letter to the court, "Mr. De Pena Jr. was not doing nothing [sic] to help me so I filed a motion to have Mr. De Pena remove [sic]. . . ."147

DeLuna's second handwritten document requested a delay in the start of the trial because his mother was in the hospital and couldn't testify for him on June 20th.148

Judge Moore ignored DeLuna's "Ineffective Counsel" statement and rejected his plea for a delay. On June 20th, however, the day trial was supposed to start, Moore "reset" the trial for July 5th "at request of Defense."149

* * * * *

Lawrence was finally able to begin investigating what happened to Wanda Lopez on Friday June 9th, the same day the judge gave him $500 for an investigator. On Tuesday July 5th, the lawyers began selecting a jury.

Between those dates, Lawrence had three weeks and the July Fourth weekend to figure out what happened to Wanda Lopez and how to defend Carlos DeLuna against murder charges and the death penalty.

* * * * *

After quickly settling on a culprit, police and prosecutors had worked steadily from February to July to prepare a case against him.

It took law enforcement only about a half hour on the evening of February 4th to decide who had killed Wanda Lopez. Everything became clear to them between 8:50 p.m., when they pulled DeLuna out from under a pick-up truck,150 and 9:20 p.m. or so, when they got Kevan Baker and George Aguirre to identify DeLuna in the back of the police cruiser at the gas station.151

Carlos DeLuna, they concluded, had robbed, knifed, and wrestled with Wanda Lopez before throwing her to the ground, rushing out of the store, and hiding in neighboring yards until he was found underneath the truck.152 Thirty or forty minutes later, Detective Escobedo shut down her investigation at the store and let Robert Stange wash down the crime scene.153

See Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 5–6:

[By James Lawrence] One of the motions that I filed [in early June] for a—an appointment of an investigator, since my counsel—since my client was an indigent, we went ahead and filed the motion. There was nothing done because of the fact that the case was under Judge Dunham's Court, the 28th District Court, and at the time we were asking for a visiting judge and so no one took any action on our motion, and it wasn't until the beginning of this week [of June 10] that I contacted Mr. Schiwetz [the prosecutor] and I asked him if he could some how or another help us in trying to get this investigation or investigator appointed for our client, and he helped and we talked to Judge Dunham. . . . [I]t wasn't until yesterday morning that I talked to Judge Dunham, and he approved the—I don't think he signed the order as such, but he did tell us orally and did tell me orally as of yesterday on June the 9th [that he would authorize a court-funded investigator].

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:01:48–12:03:00, 12:39:15 ("And, eventually, we were able to convince the district judge to allow us to hire an investigator, which was like pulling teeth at the time."; "We were able to persuade the court to allow us an allowance of 500 dollars for the investigation.");

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 ("It wasn't until five weeks before trial [early June] that Lawrence met with De Luna to hear his account of what happened. Lawrence then requested that the court pay $500 for a private investigator."); see supra note 11 and accompanying text.

Def.'s First Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 1:

James Lawrence, attorney of record, [as of June 10, 1983] has not had a sufficient amount of time to prepare for Defendant, for the following reasons: Counsel was appointed in late April, 1983 [sic, April 15], as co-counsel and has been engaged in the trial of the following matters, namely, State of Texas vs. Robert DeLa Rosa, which has prevented counsel from devoting time to investigate and prepare for the trial of this case.

Arg. on Pretrial Continuance Mot., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 5–6, 7 (by James Lawrence: explaining why "[t]here was nothing done" on a factual investigation because of the inability to get a judge to rule on the motion for an investigator; "it wasn't until yesterday morning [June 9] that I talked to Judge Dunham, and he approved the—I don't think he signed the order as such, but he did tell us orally and did tell me orally as of yesterday on June the 9th [that he would authorize a court-funded investigator]."; "We feel there are about four or five witnesses that we have been unable to get ahold of, and I feel the names provided by Mr. De Luna to us and with the investigator working on it, and that it's going to take a short period of time in which we can either locate these witnesses or not."; "Q. [by Judge Wallace C. Moore] Mr. Lawrence, when did you—when did your client first tell you of the alibi witnesses? A. [by James Lawrence] I was told of several of these witnesses beginning—It would have to have been after—certainly after May the 15th, and it would have to have been either the beginning of—of June or the latter part of May. I have got—Saturday, this past Saturday [June 4, 1983] when I visited him at the jail, in getting a complete statement from the Defendant which could cover that aspect of it. Up until that point I didn't have any [information about the names].").

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.")

Def.'s First Mot. for Continuance, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983) at 1 (text crossed out by hand stated "I would ask the court to have another attorney appointed instead of Hector De Pena, Jr.").

Def.'s 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 by to see [DeLuna] since March 1, 1983, the only time he ever came, nor has he filed any motions in [DeLuna's] behalf.").

See supra notes 115, 118, 139 and accompanying text.

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 11 ("I discussed with co-counsel [De Peña] what [Carlos DeLuna] had provided, and he had provided co-counsel even less than what he had provided me.").

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 22 ("Well, the docket here actually doesn't permit [a continuation]. Of course, that's not paramount as far as Constitutional questions are concerned, but I'm going to overrule the motion.");

Order Denying Defendant's Mot. for Continuance at 1–3, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 10, 1983).

Def.'s Statement on Ineffective Counsel, Texas v. DeLuna, No. 83-CR–193-A (Nueces Cty., 28th Dist. Tex. June 17, 1983) ("Conflict of interest and the relationship of client and attorney can not be reached, therefore, the Defendant cannot go safely to trial and have this said attorney prepare his defense.").

Letter from Carlos De Luna to Judge Dunham (Nov. 17, 1983), Nueces County Court records at 10 of 73 ("I had two Attorneys But The Other Attorney Mr. De Pena Jr. was not Doing Nothing to help me so I Filed A motion to have Mr. De Pena Remove From handling my Appeal.").

Def.'s Mot. for a Continuance (handwritten), Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 17, 1983) ("The Defendant is now filing this said motion Because one of the Defendant[']s witness[es] is now in the hospital.");

Tr. of Pretrial Hr'g, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 3 ("[By Lawrence] To further enlighten the Court, she [De Luna's mother] underwent an operation, she had complications, she had a heart attack . . . . [S]he's now in Intensive Care.").

Order Denying Mot. for a Continuance (handwritten), Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 17, 1983) at 1 ("Motion for Continuance denied; Case reset to 5 July 1983 at request of Defense.").

See supra Chapter 2, notes 249–255 and accompanying text.

See supra Chapter 3, notes 65–100 and accompanying text.

See supra Chapter 4, notes 10–12, 93, 115–116 and accompanying text.

See supra Chapter 4, notes 111–116 and accompanying text; supra Chapter 10 notes 197–204 and accompanying text.

Chapter 11
Page: 8 of 19