HRLR
Los Tocayos Carlos
Chapter 13
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All Chapter 13 Footnotes

Looking back on it years later, prosecutor Schiwetz also pointed to things Carlos DeLuna did and didn't say in his own testimony—and not the evidence that Schiwetz and Botary themselves had presented—as the main reason to think they had the right guy.236

By then a respected lawyer in private practice in Corpus Christi, Schiwetz no longer put much stock in the eyewitness identifications.237 Speaking to Chicago Tribune reporters, "Schiwetz acknowledged that the case relied heavily on eyewitness testimony," but he was ambivalent about its strength. "'Sometimes it's reliable. Sometimes it isn't reliable,' he said in an interview. 'And sometimes, in cases like this, you're not entirely sure how reliable it is.'"238

Although Schiwetz argued to the jury that DeLuna might have stabbed and struggled with the profusely bleeding Lopez without getting blood on his shirt and pant legs, and that the blood on his shoes might have washed off as he ran through the yards,239 the former prosecutor certainly knew it was a problem for his case that the crime lab found no blood or other evidence on his clothes.

And in hindsight Schiwetz realized there was a Carlos Hernandez who claimed he had killed Wanda Lopez, and that his partner Botary knew the man and should've helped Schiwetz investigate him. "Anytime somebody's going around saying they killed somebody, I think it's worth looking at," Schiwetz told the Tribune. "But," he added, "I've heard a lot of people make claims for stuff they did or didn't do that weren't true."240

"As for Hernandez's history of knife crimes," the Tribune reported Schiwetz saying, "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." 241

But what convinced the former prosecutor that DeLuna was the killer were what he believed to be DeLuna's lies.242 DeLuna "lied when he claimed to have talked to two women at a skating rink on the night of the crime," Schiwetz said.243 "In addition, while De Luna said he lost his shirt while scaling a fence, he gave no explanation for how he lost his shoes." 244

Finally, Schiwetz told the Chicago Tribune reporters years after the trial, DeLuna "lied when he apparently said he first met Hernandez in jail."245 Schiwetz based this last claim on two recollections. He remembered the defense lawyers telling him that DeLuna had said he met Hernandez in jail.246 Defense lawyer De Peña's memory is different. He recalls DeLuna telling him nothing other than what he said at trial, that he had hung out with Hernandez on the streets of Corpus Christi in 1978 and 1979.247 That also is where Detective Eddie Garza, private investigator Eddie Cruz, and others remember seeing the two Carloses together.248

Schiwetz also recollects that, before trial, Olivia Escobedo compared the jail records of DeLuna and Hernandez's and found no overlap.249 But because, at the point in the trial, Escobedo and Schiwetz were saying they had no idea which Carlos Hernandez, if any, was the "right" one,250 it's not clear when and how the comparison Schiwetz recalls would have taken place.

Regardless, any comparison made was incomplete, because Hernandez and DeLuna appear to have been in police custody on the same dates on two occasions, in January 1979 and May 1980—as well as in April 1983.251

"De Luna had lost all credibility," Schiwetz concluded. "He's lying about the most important story he's ever going to tell in his entire life."252

* * * * *

After Lawrence sat down, Schiwetz approached Carlos DeLuna on the witness stand.253

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:

After the Tribune began its investigation, the lead prosecutor in De Luna's trial, Steve Schiwetz, decided to examine the case file.

Troubled by some of the questions being raised, he spent hours at the Nueces County district attorney's office with a reporter poring over the trial exhibits, police reports and other documents in the case, as well as studying documents the Tribune provided.

Now a lawyer in private practice, Schiwetz acknowledged that the case relied heavily on eyewitness testimony. "Sometimes it's reliable. Sometimes it isn't reliable," he said in an interview. "And sometimes, in cases like this, you're not entirely sure how reliable it is."

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."

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.

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.

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.

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 534–35:

Finally they say that there's no blood on the clothing. That's got to tell you something. What it tells you is that if it's been raining all day [sic] and you run away and you get mud all over your shoes and you get water all over your shoes, that it's not going to leave a trace for the police or the DPS lab to pick up. That's what it tells you. . . . Now, why is he shucking his shirt? He's been lying in the water out there at night, 8:00 o'clock at night, it's dark, you're running along and you're scared because you just killed somebody and the neighborhood is flooded with cops, you're trying to get away and you're wearing a shirt this color. . . . Keeping in mind there may never have been any [blood] to begin with because he's pulling her like this (indicating), she's bent over, she's got a dripping wound and he's pulling her like this.

But see supra notes 45, 169–170 and accompanying text; supra Chapter 3, notes 35–36 and accompanying text; supra Chapter 10, notes 77–78 & Figure 24 (noting that it rained only an eighth of an inch in Corpus Christi that day, starting in the morning; that the rain had passed and that it was clear at the time of the killing; that there was only modest moisture on the ground by then; and that the amount of moisture present was unlikely to have washed away all, even microscopic, traces of blood that the assailant likely had on the bottoms, sides and laces of his shoes, pant cuffs and elsewhere on his pants, shirt, hands and elsewhere on his body).

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.

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.

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.

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.

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.

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.

See supra Chapter 12, notes 39–40 and accompanying text.

See supra Chapter 11, notes 274–278 and accompanying text.

See supra Chapter 6, notes 26, 188, 197–201 and accompanying text; supra Chapter 8, notes 63–64 and accompanying text.

Steve Mills and 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 http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=6 ("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 they showed that the men were never in jail at the same time, Schiwetz didn't pursue De Luna's claim further."); see supra Chapter 12, notes 39–40 and accompanying text.

See supra Chapter 12, notes 36–38 and accompanying text.

See supra Chapter 9, notes 91–92 and accompanying text; Chapter 12, notes 45–46 and accompanying text.

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.

Carlos DeLuna, Defendant in Killing of Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 424 (cross-examination by Steve Schiwetz).

Chapter 13
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