HRLR
Los Tocayos Carlos
Chapter 12
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All Chapter 12 Footnotes

News reporters later asked prosecutor Steve Schiwetz why he didn't do more to help the defense find Carlos Hernandez.36 Schiwetz said he didn't know any Carlos Hernandez himself and was never told of one by Ken Botary or anyone else besides DeLuna.37 He believed DeLuna made the name up.38

As Schiwetz recalled it years later, DeLuna told his lawyers that he met Hernandez in jail.39 "When [records] showed that the men were never in jail at the same time, Schiwetz didn't pursue De Luna's claim further."40 To this day, he is convinced that DeLuna was a woman-hater, a predator, and a liar, and that he killed Wanda Lopez.41

Neither Lawrence nor De Peña remembers DeLuna saying he knew Hernandez from jail.42 And Schiwetz himself never used the point against DeLuna at his trial,43 even as the prosecutor worked hard to discredit the defendant in the eyes of the jury by bringing up every fib he could show that DeLuna had ever told.44

In any event, Corpus Christi police and parole records show that Carlos DeLuna and Carlos Hernandez evidently were both in police custody at the same time on at least three occasions—around January 15, 1979 and May 23, 1980,45 as well as on April 3rd through 5th, 1983, after DeLuna was arrested for the Lopez murder and Hernandez was arrested behind a 7-Eleven with a knife.46

Detective Eddie Garza, investigator Eddie Cruz, Hernandez's former girlfriend Margie Tapia, and others recall seeing the two Carloses together at the Casino Club and on the streets of Corpus Christi in the late 1970s.47 When DeLuna testified at trial, that's where and when he said he met Hernandez.48

* * * * *

Because of Ken Botary's close association with Hernandez in the Dahlia Sauceda case, he had more to explain when news reporters asked him the same question.

The Chicago Tribune described Botary's predicament and his response:

Three years [before the Wanda Lopez killing], Botary had prosecuted another murder [Dahlia Sauceda's] case and lost after defense lawyers argued that Hernandez was the real killer. Botary interviewed Hernandez before that trial and cross-examined him on the witness stand. Botary was even called to testify about his interview of Hernandez.

Just before trial, Carlos De Luna's lawyers identified Hernandez as Lopez's real killer. From that point on, any information about Hernandez was critical to the defense. Botary knew that a prosecutor has a duty to disclose evidence favorable to the defense, and that failure to do so can be cause for an appeals court to set aside a conviction and order a new trial.

Schiwetz said Botary never told him about Hernandez. By remaining silent, Botary allowed Schiwetz to misinform De Luna's jury.

In a series of interviews, Botary offered changing explanations of how he handled the information about Hernandez.

"I got the name right off the bat," Botary said. "I knew Carlos Hernandez was a dangerous man."

But Botary, now a criminal defense lawyer in Corpus Christi, says he may not have associated the Hernandez mentioned by De Luna's lawyers with the man he had interviewed and cross-examined in the earlier murder case.

He acknowledged that had he been De Luna's lawyer at the time, he would have wanted to know the information. "I think I should have told Schiwetz," Botary said.

In Botary's defense, Schiwetz noted that at the time of De Luna's trial, prosecutors in Corpus Christi carried heavy caseloads, so his colleague simply may not have made the connection.

But, Schiwetz added, if Botary had told him, he would have alerted the defense.49

Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times, Oct. 14, 1986, at B1:

DeLuna claims he is a victim of mistaken identity. He said a friend, Carlos Hernandez, killed the clerk but authorities refuse to believe him.

"That's a lie," Schiwetz said. "He lied throughout the trial, and he's lying now."

It was on the first day of the trial, Schiwetz said, that DeLuna told his court-appointed attorney, Jim Lawrence, about Hernandez whom he said he met while both were in the Nueces County Jail. . . .

"Further checks showed that DeLuna had never been in jail the same time as a Carlos Hernandez," the former prosecutor added.

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, at 6, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=6:

While De Luna would later testify that he had first met Hernandez when they were teenagers [sic—when Carlos DeLuna was a teenager and Carlos Hernandez was in his twenties], the exact nature of their relationship—whether they were good friends or just acquaintances—is difficult to sort out.

What the lead prosecutor, Schiwetz, recalls is that De Luna's lawyers told him their client had met Hernandez in jail. Nueces County records were pulled and sent to lead detective Escobedo. When [law enforcement concluded] that the men were never in jail at the same time, Schiwetz didn't pursue De Luna's claim further. [Schiwetz was c]onvinced that De Luna was a liar . . . .

But cf. supra Chapter 9, notes 91–92 and accompanying text (identifying multiple occasions on which it appears that Carlos Hernandez and Carlos DeLuna were in Corpus Christi police custody at the same time).

Steve Mills & Maurice Possley, Sidebar: Co-Prosecutor Knew of Hernandez, Chi. Trib., June 26, 2006, available at http://articles.chicagotribune.com/2006-06-26/news/0606260190_1_new-trial-murder-case-real-killer ("Schiwetz said Botary never told him about Hernandez. By remaining silent, Botary allowed Schiwetz to misinform De Luna's jury.").

See Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times Times, Oct. 14, 1986, at B1;

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, at 6, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=6 (quoted supra note 36).

See Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times, Oct. 14, 1986, at B1 (quoted supra note 36);

Steve Mills & Maurice Possley, Sidebar: Co-Prosecutor Knew of Hernandez, Chi. Trib., June 26, 2006, available at http://articles.chicagotribune.com/2006-06-26/news/0606260190_1_new-trial-murder-case-real-killer (quoted supra note 36).

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, at 6, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=6, (quoted in full supra note 36); see Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times Times, Oct. 14, 1986, at B1 (quoted supra note 36).

Linda Carrico, DeLuna Is Scheduled to Be Executed Tomorrow, Corpus Christi Caller-Times, Oct. 14, 1986, at B1;

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 ("[P]resented with the results of the newspaper's inquiry, DeLuna's prosecutors still believe they convicted the right man. But the lead prosecutor [Schiwetz] acknowledged he is troubled by some of the new information."); Steve Mills & Maurice Possley, The Secret that Wasn't, Violent Felon Bragged that He was Real Killer, Last of Three Parts, Chi. Trib., June 27, 2006, available at http://www.chicagotribune.com/services/newspaper/eedition/chi-tx-3-story,0,761635.htmlstory:

Ultimately, Schiwetz points to several elements of the case that still persuade him the jury convicted the right man. De Luna, he said, lied when he claimed to have talked to two women at a skating rink on the night of the crime and lied when he apparently said he first met Hernandez in jail. De Luna had lost all credibility, Schiwetz said.

"He's lying about the most important story he's ever going to tell in his entire life," he said.

In addition, while De Luna said he lost his shirt while scaling a fence, he gave no explanation for how he lost his shoes, Schiwetz noted.

Though the crime lab found no blood or other evidence on them, Schiwetz told the jury that De Luna could have stabbed Lopez without getting blood on his shirt and that any blood on his shoes washed off when he ran through wet grass.

As for Hernandez's history of knife crimes, he said, "Every man in this town has carried a knife. And most of us still do. I carry a knife. I did not kill Wanda Lopez or anybody else."

Schiwetz's co-prosecutor on the De Luna case, Ken Botary, also remains confident the verdict was correct. "I'm not ready to concede Carlos De Luna was innocent," Botary said.

See also Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 1:41:22–1:43:40, describing conversations with her neighbor Steve Schiwetz in the years after the DeLuna trial:

Years later, [I] ended up living next door to the prosecutor, Steve Schiwetz. He was my next door neighbor. . . . . Steve Schiwetz and I would go round and round about it [the DeLuna case]. We'd talk about it. He'd tell me Carlos was a predator, he was a woman-hater. He was so convinced and convincing that Carlos was this evil person that we had put to death. He was so convinced, and I liked Steve and I thought Steve was a good prosecutor. At that time I had nothing to compare it by. But he was impressive.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 02:14:47–02:15:38 ("Steve Schiwetz [some years after the trial] was talking about Carlos DeLuna and saying that he was a predator. He was violent towards woman and that he, Carlos DeLuna, would continue, it was in his blood, and he was simply going to continue to harm women. Of course, that was part of what the prosecution portrayed him as in the punishment phase, that this would continue if we didn't put him to death.").

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:15:05–12:16:53, 12:18:14–12:19:26 ("Q. I also took down these notes [from a prior interview, quoting statements by De Peña] . . . 'I pleaded with Carlos DeLuna to give me something to go on. He said he knew but he wouldn't give us the name. I prevailed upon him to give us the name but nothing else.' Is that, did I get that correct? A. Yes, that's correct."; "[I]t was at that time that he [DeLuna] said, 'I gave you the name,' and that was as far as he was going to go. Q. And, again, would you tell me why you felt that he took that position? A. Basically, because he felt that he was dead, in or out, if he put the bite on Mr. Hernandez.");

James S. Liebman's Notes on Interview with James Lawrence, Trial Lawyer for Carlos DeLuna (Feb. 25, 2005) at 2 (noting that all DeLuna would disclose was "a name. We didn't have doodly, no height, weight, DOB. If I'd had a DOB I could've found. We never got that far because we just had a name.");

see supra Chapter 11, notes 273–280 and accompanying text.

See Carlos DeLuna, Defendant in Killing of Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 433–34:

Q. [on cross-examination by Schiwetz] What were the circumstances under which you originally met Carlos Hernandez?

A. You mean back then, back when I knew him, first knew him?

Q. Yes, sir.

A. Well, we used to—oh, I met him with my brother at a dance and we started meeting each other a little better.

Q. So you're pretty good friends?

A. Well, not too good a friends, we're just friends. . . .

Q. Do you know if Carlos Hernandez has ever been arrested in the city of Corpus Christi?

A. I'm not too sure, I thought he had but I'm not too sure.

Q. If he had been arrested, would it be fair to say that they would have fingerprinted him?

A. It's fair to say, not all the time [i.e., not all arrestees are fingerprinted], but it's fair to say.

The colloquy just quoted is the sum total of Schiwetz's questions to DeLuna about how and where he met Carlos Hernandez. Although Schiwetz confronted DeLuna with other statements the defendant had previously made that the prosecutor contended inconsistent with his testimony, Schiwetz never claimed at the trial or in his cross-examination questions that DeLuna had told either his own lawyers or Schiwetz anything inconsistent with his testimony at trial about how and where he met Hernandez. DeLuna's reference to having met Hernandez at a "dance" is consistent with the way young Hispanics in Corpus Christi at the time referred to the Casino Club—as if it held a "dance" every night that it was open. See, e.g., supra Chapter 7, note 57 and accompanying text (using the phrase "[w]hen the dance was finished" to refer to the Casino Club's closing time).

See infra Chapter 13, notes 253–284, 303–309 and accompanying text.

See supra Chapter 9, notes 91–92 and accompanying text.

See supra Chapter 9, notes 73–90 and accompanying text.

See supra Chapter 6, notes 26, 199–207 and accompanying text; supra Chapter 8, notes 46, 50–52 and accompanying text; supra Chapter 9, notes 52–54 and accompanying text.

See infra Chapter 13, notes 194–195, 267–270 and accompanying text.

Steve Mills & Maurice Possley, Sidebar: Co-Prosecutor Knew of Hernandez, Chi. Trib., June 26, 2006, available at http://articles.chicagotribune.com/2006-06-26/news/0606260190_1_new-trial-murder-case-real-killer see also Steve Mills & Maurice Possley, The Secret that Wasn't, Violent Felon Bragged that He was Real Killer, Last of Three Parts, Chi. Trib., June 27, 2006, available at http://www.chicagotribune.com/services/newspaper/eedition/chi-tx-3-story,0,761635.htmlstory:

Schiwetz labeled Hernandez a "phantom" at trial, but said he would not have done so if he'd been informed by a fellow prosecutor that Hernandez had been a suspect in the murder of another woman.

Schiwetz also said that if he had been told of reports that Carlos Hernandez was claiming to be Lopez's killer, he would have investigated them.

"Anytime somebody's going around saying they killed somebody, I think it's worth looking at," he said. "But I've heard a lot of people make claims for stuff they did or didn't do that weren't true."

Chapter 12
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