Los Tocayos Carlos
Chapter 14
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All Chapter 14 Footnotes

Lawrence and De Peña also failed to look for the case file on the incident, which explains why it was treated as a minor misdemeanor, not a serious crime. One of Botary's and Schiwetz's colleagues in the D.A.'s office had investigated the complaint and talked to Ms. Garcia and "determined that there was no rape or attempted rape that was prosecutable in this case."26 The explanation at least would have prevented the prosecutors at DeLuna's trial from referring to the incident—as Schiwetz repeatedly did—as an attempted rape.

Lawrence and De Peña, however, never saw that record until after Ms. Garcia testified, when the prosecutors showed them the file in the case. At that point, the only thing the defense lawyers could think to do was object to all the records, which the jury never saw.27

De Peña later chalked up the incident to more prosecutorial sharp practice. Gentlemen, he believed, would have shared the entire Juanita Garcia file with the defense before trial, tipping them off to what was coming. Instead, the prosecutors gave them only one page in the file, which indicated that the incident was minor.28

* * * * *

After showing other court records to the jury, which described DeLuna's Dallas convictions for attempted rape and car theft, the state rested its case for the death penalty.29

Now it was the time for the defense lawyers to present their client's evidence of "mitigating" factors—everything about Carlos DeLuna's life, background, age, poverty, mental problems, family relationships and good deeds that might, singly or together, give at least one juror a reason to grant mercy. Because death verdicts have to be unanimous, one juror's vote for mercy would spare DeLuna's life.30

Incredibly, in a step that today would be an almost automatic reason for an appeals court to throw out a death sentence,31 Lawrence and De Peña immediately rested DeLuna's case as well. They didn't call a single witness or put on any mitigating evidence.32

The jury heard nothing about Carlos's limited intelligence, "specific learning disabilities," and inability to handle the mental rigors of the seventh grade. His lawyers presented no testimony from his former teachers, the school psychologist who discovered his reading and memory problems, or a family member who'd watched him struggle with his school work. They didn't even offer a school or juvenile court record.33

Although Carlos's sisters were in the courtroom,34 his lawyers called none of them to testify to his sweetness as a child, or that one of them had to raise him when she was still a girl because his father had abandoned the family and his mother was too exhausted to bring him up. His younger sister Rose never got a chance to describe his suggestibility and manipulation by their older brother, or Carlos's generosity with his paltry Whataburger wages so Rose didn't have to stand in the paupers' line in the school cafeteria.35

His lawyers didn't chase down records showing that Carlos had stayed out of trouble while in prison on the Dallas convictions and had provided information to prison officials and testimony leading to the conviction of four inmates for killing a fifth.36

They called no one to say she believed in Carlos's basic goodness and redeemability and to beg for the twenty-one-year-old's life.

Summarizing DeLuna's defense to the death penalty, the local newspaper reported the next morning that "Defense attorneys neither called witnesses nor presented evidence in yesterday's punishment phase of the trial."37

* * * * *

Schiwetz's closing argument in favor of a sentence of death was shorter and less dramatic than his argument that DeLuna was guilty.

State's Ex. 42, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 3:

Upon investigating this complaint it was determined that there was no rape or attempted rape that was prosecutable in this case, however, there was a class A assault that could be prosecuted. Upon discussing this with the victim a copy of the report was furnished for victim to file a restraint order on the individual being Carlos De Luna and also I took the complaint to the Municipal Court [which handles misdemeanor charges] where charges of assault were filed on this same individual in connection with this complaint. Case Closed: Filed Municipal Court.

James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Trial Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 27 – 28, 48 ("Your Honor, we're going to object to the whole series of testimony from Lucinda Garcia, Connie Campos, and Juanita Garcia based upon the fact that there is no final conviction; in fact, no charges have ever been filed in this particular offense . . . and we think it should be inadmissible and would only go to prejudice and bias the jury against my client."; objecting to admission of State's Exhibit 42, an offense report about Juanita Garcia);

see also DeLuna v. State, 711 S.W.2d 44, 46 – 47 (Tex. Crim. App. 1986) (upholding the trial court's decision to prohibit the jury at Carlos DeLuna's trial from seeing the offense report, which stated that no rape or attempted rape of Juanita Garcia occurred, because the officer who made the report did not testify and the report was therefore inadmissible hearsay, and because defense counsel had objected to the admission of the report).

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005), at 12:52:39 ("But from the records that we got from the state, there was never any indication that . . . there had been nothing more than a possible criminal trespass.").

Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 46 ("Mr. Schiwetz: I will pass the witness; Mr. Lawrence: No questions.");

Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 49 – 51 (reporting that both sides rest).

Penry v. Johnson, 532 U.S. 782, 784 (2001) ("[T]he key . . . is that the jury be able to 'consider and give effect to [a defendant's mitigating] evidence in imposing sentence.'") (citations omitted); Eddings v. Oklahoma, 455 U.S 104, 117 (1982) ("[T]he state courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances."); Lockett v. Ohio, 438 U.S 586, 604 (1978) ("[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.").

See Rompilla v. Beard, 545 U.S. 374, 377 (2005) (holding that "even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial"; absent those steps a death sentence violates the Sixth Amendment to the Constitution if there is a probability that the evidence the lawyers could have presented but did not present would have affected the jury's verdict); Wiggins v. Smith, 539 U.S. 510, 523 (2003) (similar); Williams v. Taylor, 529 U.S. 362, 392 (2000) (reversing death sentence because the defendant's attorneys failed to investigate and present substantial mitigating evidence at the sentencing phase of trial that might have influenced the jury's appraisal of the defendant's moral culpability).

See Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 49 – 51.

See supra Chapter 5, notes 68–75, 108–126, 141–142 and accompanying text.

See Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 1A ("At first undisturbed by the jury's decision, DeLuna became agitated when Nueces County sheriff's deputies attempted to escort him back to jail before he could say good-bye to his sister. 'Let me hold my sister, man!' a sobbing DeLuna screamed.");

see supra Chapter 5, note 5 and accompanying text; supra Chapter 13, note 17 and accompanying text.

See supra Chapter 5, notes 35–36, 58–60, 63–64, 104–108, 132, 199–202 and accompanying text; see also infra Chapter 15, notes 206–207 and accompanying text (discussing papers filed by appellate lawyers for Carlos DeLuna listing 17 witnesses who could have testified in Carlos' favor and laying out what each would have said in DeLuna's behalf).

Unit Classification Review Form for Carlos DeLuna, Tex. Dep't of Corrections (Apr. 3, 1983);

Additional Information, Tex. Dep't of Corrections (Mar. 13, 1986) ("The subject claims while confined with Joe Dominques and Robert Lopez on the Ferguson Unit in 1980, they murdered a fellow inmate. He claims he appeared in court as a State witness against these inmates in Sept. of 1981.").

Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 16A.

Chapter 14
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