HRLR
Los Tocayos Carlos
Chapter 13
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All Chapter 13 Footnotes

This time, however, Schiwetz didn't end with the tape recording.303 Instead, he played what he thought was an even better trump card.

The best evidence that Carlos was guilty, he said, was that he was a liar.304 Exhibit A was Mary Ann Perales, who DeLuna said he ran into that night, though she in fact was at her own baby shower.

Then, engaging in some sleight-of-hand himself, Schiwetz turned testimony by DeLuna that Mary Ann did not contradict—that she looked the same in court as four years earlier—into another lie, which DeLuna in fact never told. DeLuna had not been asked and had not said that Mary Ann looked the same on February 4th, when she was seven months pregnant, as she looked in court months after her baby was born, or had looked four years before. But Schiwetz attributed that lie to DeLuna.

"I ran [Mary Ann] out [into the courtroom]," Schiwetz said, and "I asked him a few questions about her."

"She looks the same now as she did that night?" the prosecutor said, claiming to repeat a question he never actually asked DeLuna.

"Yes," he then said, mimicking an answer DeLuna never gave.

"She looked the same that night as she did several years ago when you saw her?"

"Yes."305

But Mary Ann was only a sideshow for Schiwetz as he came to his dramatic conclusion. The lie for which Carlos DeLuna should truly be convicted, he said, his voice rising, was his pathetic fabrication of "this phantom Carlos Hernandez."306 Based on that invention, Schiwetz argued, looking straight at DeLuna, "this man lied under oath."307

"Anyone who would go out and fabricate events like this man did can't be believed in any fashion whatsoever. He's a convicted car thief, he's a convicted attempted rapist, and he murdered Wanda Lopez for no good reason whatsoever."308

"When you go back out there in that jury room and open up the jury forms," he continued, making his final suggestion to the jury, "it shouldn't take you a whole long time to . . . say[] that, 'We, the Jury, find the Defendant, Carlos De Luna, guilty of the offense of capital murder as alleged in the indictment.'"309

* * * * *

Splitting the defense argument between them, Lawrence and De Peña did their best to defuse the drama generated by Schiwetz, whom Lawrence immediately likened to a "frustrated Hollywood would-be actor[]."310

Lawrence's own flourishes tended in the direction of personal attacks. He attacked Schiwetz for his theatrics, particularly for using the 911 tape solely for "dramatic effect."311 He also attacked Mary Ann Perales, suggesting that she had some unexplained vendetta against Carlos DeLuna.312

In the end, however, Lawrence conceded that he couldn't "explain whether" what Carlos said about Mary Ann was "true or not true."313 He didn't acknowledge his own role in failing to dissuade his client from bringing up Mary Ann at all.314

Lawrence was more effective when he attacked the reliability of witness identifications made in moments of "high stress," especially when there's "only one person" to look at.315

But the defense lawyer didn't have the manhunt tape showing that the Arsuagas placed DeLuna, whom they quite accurately described, two blocks east of the location where Baker saw a man wrestling with Wanda Lopez and fleeing north. So Lawrence was reduced to arguing that "we don't know which way that person ran" and to personally attacking John Arsuaga, his client's best alibi,316 as not credible, a man relying on intuitions suited only to the "female gender," someone "out of a soap opera."317

See supra notes 154, 162–164 and accompanying text.

Steve Schiwetz, Prosecutor, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 493–94 ("He tells you that he knew the Perales girls a few years ago and that that's who he ran into that night and he was with them for awhile and Mary Ann Perales, I ran her in here, he got a good look at her and I said, 'Is this the Mary Ann Perales you're talking about?'");

see also Steven Schiwetz, Prosecutor, Rebuttal, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 533–34 ("Let's talk about lying. He [pointing at DeLuna] lied to his parole officer, there's no doubt about that, there's no maybe. He lied about seeing Mary Ann Perales. He lied about how often he went to the Casino Club. He lied about how he lost his shirt. . . . He never did explain how he lost his shoes . . . .").

Steve Schiwetz, Prosecutor, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 494;

cf. 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 431 ("Q. How long had it been since the last time you had seen her? A. Sir? Q. How long had it been since the last time you had seen her? A. Back in '78, '79, I would say. Q. Has she changed much? A. No, she hasn't. Q. Sir? A. No, she hasn't . . . Q. Just the same? A. Just the same.").

Steve Schiwetz, Prosecutor, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 494;

see James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 496:

I sometimes look at criminal trials and look at the attorneys involved [referring to Schiwetz's closing argument that had just concluded], and I think to myself, "My gosh, look at these frustrated Hollywood would-be actors, never got there." And they come into the courtroom and use that as a stage, a stage to come before you and point, the dramatic effect point, look straight at the person accused and drive home the point that all of their evidence is believable, and that he's a cold-blooded killer and none of his evidence is any good.

Steve Schiwetz, Prosecutor, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 494–95:

I submit to you that this man lied under oath, that he is not entitled to belief on anything. That anyone who would go out and fabricate events like this man did can't be believed in any fashion whatsoever. He's a convicted car thief, he's a convicted attempted rapist and he murdered Wanda Lopez for no good reason whatsoever. He's a cold-blooded murderer, he killed her in the course of a robbery and I suggest that when you go back out there in that jury room and you open up the jury forms, it shouldn't take you a whole long time to pick the appropriate place for the foreperson to sign and that should be the top one where it says that, "We, the Jury, find the Defendant, Carlos De Luna, guilty of the offense of capital murder as alleged in the indictment."

See James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 496 (stating that Schiwetz was "look[ing] straight at the person accused" when he ended his closing argument).

Steve Schiwetz, Prosecutor, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 494.

Steve Schiwetz, Prosecutor, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 494.

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 496:

I sometimes look at criminal trials and look at the attorneys involved and I think to myself, "My gosh, look at those frustrated Hollywood would-be actors, never got there." And they come into the courtroom and they use that as a stage. A stage to come before you and point the dramatic effect point, look straight at the person accused and drive home the point that all of their evidence is believable and that he's a cold-blooded killer and none of his evidence is any good. That's why I say, "we," we go through all this. I'm not going to persuade you on anything. You heard the evidence, you probably heard it better than we did. Don't get caught up in this stage production because we're dealing with two lives, certainly Wanda Lopez'[s] life has a bearing on this case for our society, for our community, certainly my client's life also has a bearing. Just as important, a life's a life and all lives are important. He's charged with capital murder. What evidence has been brought before you that would warrant, actually warrant, the removal—the removal of all reasonable doubt for you to go back into that jury room and to do what the prosecutor has just told you to do, to just take that first form right here and sign it and go back . . . .

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 496–97 ("On the converse, you can argue, 'Look how long he gave her to live. Listen to the tape. Count the seconds, how long did he give her to live?' That's what [the prosecution] tried to say because that would bring about the dramatic effect.");

see supra notes 269–303; see also James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 515 ("This is your decision and your sole decision, based upon the evidence and not sympathy, not dramatic effect that we put on as attorneys . . .").

The "theatrics" criticism of Schiwetz may have hit a sensitive nerve. In his rebuttal argument, in perhaps the skilled prosecutor's only misstep, he said in his defense that, "I didn't get up here and start waving bloody clothes around"—inadvertently emphasizing the biggest weakness in the state's case, that there were no bloody clothes from DeLuna to wave. Steven Schiwetz, Prosecutor, Rebuttal, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 528–29.

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 510–11:

I did notice one thing, though, and I think that it might prove to be a little interesting, that when they—Mary Ann came in here and testified and she brought her little shower book and they took pictures of her and she had [not] written on there February 4th, that we were to take her word for it. . . . So, I think in a situation like that when you have one person—and then she said, 'I've got people out there to testify,' and no one else came in here and said, "Yeah, we were at her shower." I think when you have a situation like that you can say: Well, okay. I don't know who to believe on that. It's not necessarily wrong, maybe she's covering up something, I don't know . . . I didn't hear nobody come in and say that was the day. All right?

Cf. Steven Schiwetz, Prosecutor, Rebuttal, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 533–34:

He [Lawrence] said Mary Ann Perales, she could be lying. . . . That's the best he can do, maybe she's lying. Yeah, well, you now maybe this girl wasn't killed with this knife, too. . . . Maybe somebody wheeled a Howitzer in there and blew a hole in her lung. Maybe, maybe, maybe. I suggest to you this is the knife that killed her. Maybe Mary Ann Perales is lying. Let's talk about lying. He [DeLuna] lied to his parole officer, there's no doubt about that, there's no maybe. He lied about seeing Mary Ann Perales. He lied about how often he went to the Casino Club. He lied about how he lost his shirt . . . . He never did explain how he lost his shoes . . . ."

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 510 ("My client testified to the events that evening. Told you about Mary Ann Perales. I cannot explain whether that's true or not true.").

See supra Chapter 11, notes 181–187 and accompanying text.

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 497, 498 ("What do you really have? You have in effect eyewitness testimony . . . . Whenever we have situations like this, it's a high stress situation. People react differently, can't remember what they saw."; "But what did they do? What did Mr. Schiwetz just argue to you? He said, 'Well, they brought him back, he did it through a police officer or what-not through George,' yet when they brought him back to the scene, when they brought my client back to the scene that he identified him there. Well, is that the best place to identify him? You have been through a high stress situation. They bring only one person back: 'Yes, that is.' You're convinced.");

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 500:

And I point these things out to you because I want to show you that there are also some discrepancies as to way—as to the way even the State's witnesses testified. They're not all sure what happened. It's very difficult and I'm not trying to say that they should be unbelieved because they happen to be the witness, but I'm saying—what I'm asking you to do is to take that into account, that just because you're an eyewitness, just because you're there, that your eyes do play tricks with you, that you're in a high stress situation and that a lot of what you think you saw or what you did could be reinforced, could be suggested to you and that's the way you have to picture it into your mind and that's the way you're going to resay it. And it may not necessarily be completely correct.

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 503, 501 ("I submit to you that [John Arsuaga] was not sure. Then he comes into this courtroom and tells you in a very dramatic fashion, 'Oh, yes, I'm sure that's him. I'm sure. For a whole week all I could see was his face.' What does that sound—that sounds like something out of a soap opera. I would maybe believe it had a woman said that . . .");

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 505 ("Eyewitness testimony I think leaves a lot to be desired and I think you all would agree. It's not the best evidence in the world. Our eyes play foolish things on us, high stress, all these things come together . . ."; "And yet we're relying on flimsy, to say the least, flimsy eyewitness evidence and everything else by innuendo.").

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 501–02 ("[W]hen I said, 'Where did this person run that you saw in the store when he came out?' He said, 'Well, he ran over there,' (indicating) and his original statement, remember when we talked about it, that he ran behind the store. He said, 'Well, he ran that way.' And I said, "Well, you said he ran behind the store, didn't you?' And he said, 'Yes,' and then he said, 'well, when he got over there to the corner of the store, I—I didn't know where he ran after that.'").

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 503:

He [John Arsuaga] said that he was scared to view the suspect when they brought him back [to the Shamrock]. He didn't seem scared in here, I don't understand that. Was he scared or was he just not sure. What seems more believable? A bunch of cops there, a bunch of witnesses there, they went over and looked, several other witnesses went over and looked. What's his problem? I submit to you that he was not sure. Then he comes into this courtroom and tells you in a very dramatic fashion, "Oh, yes, I'm sure that's him. I'm sure. For a whole week all I could see was his face." What does that sound—that sounds like something out of a soap opera. I would maybe believe it had a woman said that, that would have seemed more along those lines, female gender would have said something like that, "I could see his face. I've got it implanted on my mind," but to have a male come in here and say that for the few seconds that he saw him that—that has nothing to do with anything but to gang up, and to do this dramatic effect . . . .

Chapter 13
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