Los Tocayos Carlos
Chapter 14
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Chapter 14


The second stage of Carlos DeLuna's capital murder trial decided whether his sentence would be life in prison or death. It began the next morning, Thursday, July 21, 1983, in front of the same jury.1

The fact that a unanimous jury had found the defendant guilty of cold-blooded murder just the day before was a bad sign for anyone facing the death penalty, but it was especially bad for DeLuna.

In most capital trials, the defendant hedges his bets by offering an excuse—mental defect or disease, for example—that may be strong enough to avoid a conviction for capital murder by convincing the jury that he is not guilty by reason of insanity or is guilty only of a lesser crime such as manslaughter. If that fails, the same defense may still lay the groundwork for a sentence less severe than death. Even if the defendant wasn't so mentally impaired that he must be excused entirely, the jury might still decide that he was impaired enough that he didn't deserve to die.2

But DeLuna and his lawyers offered no reason to doubt that he was fully responsible for his actions, and instead argued for acquittal at the first stage of trial by claiming someone else committed the crime. When the jury promptly decided "beyond a reasonable doubt" that he did commit the offense—a very bad one at that—only a single, dubious option remained open to DeLuna at the sentencing stage.

Lawyers have a name for this defense to the death penalty, which reveals just how desperate the ploy is. "Whimsical doubt," they call it.3 The hope is that, even after all twelve jurors have found the defendant guilty of a very bad crime beyond any "reasonable" doubt, at least one juror will still have a tiny inkling left over that someone else may have committed the crime, and will vote against a death sentence because of it.

Reducing even this slim chance of escaping a death verdict was another strike against DeLuna: The sentencing jurors almost certainly believed he lied to them at an earlier stage of the trial. That made three strikes. The jurors had found him guilty beyond a reasonable doubt. They believed he disrespected them by trying to deceive them. And they probably thought he was convinced of his own guilt, because only a guilty person or a fool would tell a lie under oath, especially a lie that's easy to expose or so obviously false that no reasonable person would believe it.

The day before, prosecutor Schiwetz had ended his dramatic argument in favor of guilt on "lies" of both sorts—the easily exposed Mary Ann Perales detail in DeLuna's testimony, and the defendant's seemingly ridiculous claim that "some other dude named Carlos did it." By emphasizing those "lies," Schiwetz had cleverly set the stage for a death verdict even before the sentencing trial began.4

Carlos's lawyers did their part to seal his fate. They didn't impress upon their client the idiocy of bringing up Mary Ann Perales when they knew she would dispute it and that the prosecutors would find her because the defense lawyers had alerted law enforcement to go talk to her. Far worse, they gave no bodily reality to "the phantom Carlos Hernandez."5

The sentencing stage went forward in about the same way as the guilt stage had gone. Schiwetz and Botary did their job capably. The defense lawyers did little—even less at this stage than at the prior one. And by declining Schiwetz's second offer of a plea bargain while the jury was still deliberating on his guilt, Carlos DeLuna burned the best remaining bridge he had to a life sentence, rather than death. Now, he had nothing to offer the prosecutors in return for a deal. They already had their murder conviction and a life sentence at least.

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Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 2 ("On the 21st day of July, 1983, the above entitled and numbered cause came on for hearing before said Honorable Court, Wallace C. Moore, Judge presiding . . .").

See Gary Goodpaster, Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 329–33 (1983) (describing guilt phase defenses and their effect on the penalty phase).

See, e.g., Lockhart v. McCree, 476 U.S. 162, 181 (1986) ("[A]s several courts have observed, jurors who decide both guilt and penalty are likely to form residual doubts or 'whimsical' doubts . . . about the evidence so as to bend them to decide against the death penalty.") (citation omitted); Elizabeth R. Jungman, Beyond All Doubt, 91 Geo. L.J. 1065, 1083 (2003) (claiming that "even when jurors are convinced of a defendant's guilt 'beyond a reasonable doubt,' they may have some doubt remaining"); Jennifer R. Treadway, 'Residual Doubt' In Capital Sentencing: No Doubt It Is an Appropriate Mitigating Factor, 43 Case W. Res. L. Rev. 215, 216 (1992) (arguing that residual doubt—the absent of certainty as to guilt—should be treated as a mitigating factor in capital sentencing proceedings).

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

See supra Chapter 11, notes 182–187, 274–280 and accompanying text; supra Chapter 12, notes 1–19 and accompanying text; supra Chapter 13, notes 190–231, 263–271, 277–284, 304–309 and accompanying text.

Chapter 14
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