HRLR
Los Tocayos Carlos
Chapter 12
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Chapter 12

No Defense

When DeLuna coughed up the name "Carlos Hernandez" on July 15, the person assigned by the prosecution team to look for the man was not senior prosecutor Ken Botary, chief detective Olivia Escobedo or I.D. tech Joel Infante. All three of them had more than a passing familiarity with the Carlos Hernandez, from the Dahlia Sauceda case,1 Eddie Garza's informants in the weeks after the Wanda Lopez killing,2 and Hernandez's April 1983 arrest at the 7-Eleven.3

Nor did prosecutor Schiwetz try himself to locate and question "Carlos Hernandez," even though the D.A.'s file in the Lopez case contained the rap sheet of a man by that name whose criminal history and physical traits matched the offense and knife-wielding assailant described by witnesses Baker and Aguirre moments after Wanda Lopez was stabbed.4 That, too, was the Carlos Hernandez.

Instead, Schiwetz assigned the task to Corpus Christi police sergeant Ernest Wilson.5 Wilson performed one job for the police department: matching fingerprints found in the field to ones on file with the police. Judging from his testimony in the DeLuna case, he did it with care and professionalism.6

Right off the bat, however, Wilson hit a snag. The fingerprints Infante had collected from the Sigmor crime scene were of such poor quality—"very bad" and "very, very bad," Wilson rated them7—that they couldn't be used to make comparisons with the prints of the seven Carlos Hernandezes with rap sheets in the D.A.'s file.8

"In effect," as Schiwetz later told the jury, "there are no fingerprints in this case."9 As a result, there were no matches to anyone named Carlos Hernandez—or to Carlos DeLuna, for that matter.

* * * * *

The prosecution team also issued a couple of subpoenas to a "Carlos Hernandez" who lived on David Street in Corpus Christi.10 But as Jon Kelly later explained to the private investigators, getting a subpoena just meant that a constable would leave a paper summons at an address. Unless you send out a cop to wait at the address and bring the witness in, "[y]our subpoenas, despite what is said, aren't worth the paper they're written on."11

Whoever he was, the David Street Carlos Hernandez never appeared in court.

* * * * *

That was the sum total of the efforts by law enforcement and defense lawyers to locate "Carlos Hernandez."12

No one on the police force or in the prosecutors' office told the defense lawyers about (and they made no independent efforts to locate) Eddie Garza's informants who overheard a Carlos Hernandez from the area around Staples and Mary near Carrizo Street13 say he was the one who "hurt" Wanda Lopez with a knife.14 No one disclosed Hernandez's April arrest at the 7-Eleven,15 or his suspected role in stabbing and beating Dahlia Sauceda to death.16 No one mentioned that Hernandez was notorious in the Mary Street area for his violence against women and his fondness for lock-blade buck knives.17

"[T]he prosecutors didn't give me a whole lot of assistance," DeLuna's lawyer Hector De Peña dryly commented later.18 "[T]he correct individual was never found."19 Carlos DeLuna had no defense.

* * * * *

See supra Chapter 7, notes 39–49, 87–96, 134, 199–203 and accompanying text; supra Chapter 9, notes 62–66, 108–112 and accompanying text.

Application for Subpoena, Texas v. DeLuna, No. 83-CR–194A (Nueces Cty., 28th Dist. Tex. July 6, 1983) at 1.

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:30:15–07:32:08:

And let me bring up, in the DeLuna case, did not the sheriff get a subpoena from the defense asking them to serve Carlos Hernandez? Well, that's criminal too, but that shows you that the kind of burden that a criminal attorney has. Your subpoenas, despite [what] is said, aren't worth the paper they're written on. They don't go and look for your guy. Carlos Hernandez, I guarantee you, if you went to [Officer] Paul [Rivera]. He's a man of integrity. Or Eddie [Garza] too. "How long would it take you to find Carlos?" They would have said, "Hernandez? Hancock Street. Two minutes?" Certainly within a half a day. No matter where he was.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:07:55, 12:20:04 ("[T]he correct individual was never found."; "As far as I know, the prosecutors didn't give me a whole lot of assistance.").

See supra Chapter 9, notes 7–8, 50–69 and accompanying text.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:58:51:

Q. [W]e have been told by a gentleman who was another Corpus Christi homicide, Corpus Christi police department homicide detective in 1983, not assigned to the Shamrock killing, that he was informed by informants in the Hispanic community here in Corpus Christi, that a man by the name of . . . Carlos Hernandez, Carlos Hernandez, was stating in the community at that time that he had been the one who killed Wanda Lopez. And that he, this had been reported to the homicide detective, who then reported it to Olivia Escobedo in case she wanted to use it in her investigation of this case. Were you ever informed about that?

A. No. Neither I nor Jim [Lawrence]. I mean, that obviously would have been a quantum leap in the defense had we gotten this information.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 13:00:34 ("Q. . . . Carlos Hernandez was arrested . . . at the beginning of April, well, I should say, in April of 1983. That is, mid-way through the process of getting from the arrest [of Carlos DeLuna] on February 4th to the trial [of DeLuna] in July, 1983, and, indeed, Joel Infante took his fingerprint — for some reason, took major case prints of Carlos Hernandez at that point. Did you hear anything about that? A. No.").

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:55:23–12:57:05:

Q. Carlos Hernandez was suspected of the murder of Dahlia Sauceda in 1979. . . . At the time, 1979, early 1980, there were two suspects for that killing, one was Jesse Garza, who was represented by Albert Peña and acquitted for that crime. The other was Carlos Hernandez. Carlos Hernandez's . . . shorts, his undershorts were found with her [the victim Dahlia Sauceda], his fingerprint was found in her van. The prosecutor who made the decision as between Jesse Garza and Carlos Hernandez, as to who to prosecute was Ken Botary. The lead detective on the case was Olivia Escobedo . . . . And I'm just curious what your reaction is to that information.

A. I wish I had known at that point, but I didn't. I certainly think I could have made for a better case if I could have proved that he wasn't a phantom, that there was in fact a Carlos Hernandez that existed.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:21:09–12:22:49 ("Q. Did any of the detectives for the Corpus Christi Police Department or any of the people in the District Attorney's office indicate that they knew, at that time, knew of a Carlos Hernandez who might be capable of using a knife in this way. A. No.");

see Peso Chavez & James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 6–7:

CH [Carlos Hernandez] was notorious. Well known. . . . When Jack Blackmon asked me to [represent him], his court manager . . . said I should know who CH was. DA [District Attorney] said the same thing. They let me know at the time he was a real slime. I know they let me know that CH was a bad guy. Very notorious. . . . Carlos Hernandez was easy to find at the time. He was a known quantity over on Hancock and Mary. They could find CH. Anyone in homicide w[ou]ld know who CH was. If you worked that area of town, they'd know. That's BS [that law enforcement couldn't find him]. There was no question he could've been found. . . . Re: who "CH" is: They knew it.

See supra Chapter 6, notes 42–60, 90–105, 111–138, 166–170, 193–197, 203, 206, 220–222 and accompanying text; supra Chapter 7, notes 103–104, 139–140, 151–159, 189–194, 212–228 and accompanying text; supra Chapter 8, notes 25–44, 100–107 and accompanying text; supra Chapter 9, notes 7–27, 52–71; infra notes 20–32 and accompanying text.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:20:04 ("As far as I know, the prosecutors didn't give me a whole lot of assistance.").

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:07:55, 12:34:56–12:24:05 ("[T]he correct individual was never found."; "Q. So the state's view all along was that there was no such person. A. Correct.").

See supra Chapter 9, notes 7–8, 50–69 and accompanying text.

See supra Chapter 9, notes 72–88, 93–108 and accompanying text.

See supra Chapter 2, notes 44–48, 75–81, 137–146, 155–175 and accompanying text & Figure 3.

Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 458–459:

Q. [By Steve Schiwetz] At my request, did you attempt to make some comparisons between the latent fingerprints lifted by Sergeant Infante and some other—some people with another name?

A. Yes, sir, I did.

Q. And what was that other name?

A. Carlos Hernandez.

Q. And when did you try and make those comparisons?

A. About four days ago.

Q. And at that time were you able to pull out any fingerprint cards over at the Corpus Christi Police Department which matched the name Carlos Hernandez.

A. Yes, sir, I did.

Q. And between what ages did you pull those cards?

A. Between the age of 20 and 30.

Q. And how many cards did you find with the names Carlos—different defendants with the name Carlos Hernandez?

A. Seven.

Q. Did you attempt to make comparisons between the fingerprints of the known fingerprints of different Carlos Hernandezes and the fingerprints which were found, those partial fingerprints which were found on the door at the Sigmor Station?

A. Yes, I did.

Q. Were you able to make any kind of comparison with them?

A. No, sir, I was not.

It is interesting that Schiwetz's questions and Wilson's answers indicate that it was Sergeant Wilson, in July 1983, who identified the seven Carlos Hernandezes between the ages of twenty and thirty with criminal records. In fact, it was Detective Olivia Escobedo who first identified the seven Carlos Hernandezes, in May, and immediately turned over their rap sheets to prosecutors Botary and Schiwetz See supra Chapter 9, notes 93–105 and accompanying text; Chapter 11, notes 127–173 and accompanying text.

Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 333–34:

Q. And how long have you been with the Corpus Christi Police Department itself?

A. I have been with the department 29 years. . . .

Q. And how long have you been a fingerprint expert?

A. Fifteen years.

Q. Have you had an opportunity to testify in district courts of the State of Texas regarding the examination and comparison of fingerprints?

A. Yes, sir.

Q. How many times?

A. Numerous times, I—I couldn't say offhand.

Q. More than a hundred times?

A. Oh, yes, definitely.

Q. What kind of training have you received to prepare you for a life's work in identification of fingerprints?

A. I studied under the Institute of Applied Science, Federal Bureau of Investigation, Department of Public Safety, on-the-job training under supervision on the job and I am certified as a Latent Print Examiner.

Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 338–39 ("Q. What are [sic] the quality of these particular fingerprints [from the glass door and beer can] that Officer Infante lifted? A. They're very bad quality. . . . Q. How about the others, what's the quality of them? A. They're very bad quality."; characterizing the fingerprint taken from the beer can as "very, very bad quality").

Steve Schiwetz, Prosecutor, Opening Statement, Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 18 ("[I]n effect there are no fingerprints in this case");

see Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 338–39;

Steve Mills & Maurice Possley, 'I Didn't Do It But I Know Who Did,' New Evidence Suggests a 1989 Execution in Texas Was a Case of Mistaken Identity, First of Three Parts, Chi. Trib., June 25, 2006, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=4 ("Infante said he found three fingerprints inside the station—two on the front door and one on the telephone. But all were of such poor quality that they were worthless."); see supra Chapter 10, notes 169–171 and accompanying text; infra Chapter 13, notes 17–72, 285–286 and accompanying text.

Steve Schiwetz, Prosecutor, Opening Statement, Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 18 ("[I]n effect there are no fingerprints in this case");

see also 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 14 (statement of prosecutor Schiwetz to judge: "The upshot is that there aren't any fingerprints [in the case].");

Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 338–339 ("Q. What are [sic] the quality of these particular fingerprints [from the glass door and beer can] that Officer Infante lifted. A. They're very bad quality. . . . Q. How about the others, what's the quality of them? A. They're very bad quality."; characterizing the fingerprint taken from the beer can as "very, very bad quality").

Chapter 12
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