HRLR
Los Tocayos Carlos
Chapter 14
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He began by reminding the jurors that they all had "promised" the judge that they were willing to impose death.38 People with a problem imposing a death sentence are excluded from juries in capital murder cases.39

Schiwetz then explained that, to impose a death sentence in Texas, the jury had to find that the killing was deliberate and that the defendant would be a danger to other people if he wasn't executed.40

To help the jurors decide whether the murder of Wanda Lopez was deliberate, Schiwetz invited them to take the buck knife used to kill Wanda into the jury room with them "and look at it, open it up and try to imagine what effect that would have sticking it in the lungs or the heart and . . . decide whether that was all done deliberately."41

"Listen to the tape again," Schiwetz recommended. "Listen to her begging for mercy. Listen to that scream."42

On "future dangerousness," Schiwetz referred the jurors to DeLuna's criminal record.43 Carlos had "become mentally a convict,"44 Schiwetz said, coining a phrase the newspapers quoted the next day.45 The prosecutor noted that within days of being paroled in 1982, DeLuna "went over and tried, I submit to you, tried to rape his best friend's mother. That says about everything you need to say about Carlos DeLuna."46

Rejecting the idea that life in prison was punishment enough, Schiwetz claimed that DeLuna "doesn't mind the penitentiary. He kind of likes it, he . . . would just as soon kill to get back in there."47

The prosecutor ended by reminding the jury of Wanda Lopez's six-year-old daughter, who was gaily seated in her smiling mother's lap in the photograph that Wanda's father had shown the jury on the first day of the trial.48

* * * * *

Lawrence and De Peña again split the defense argument, but they didn't coordinate their statements to the jury. De Peña had no idea what his co-counsel would say until he listened to Lawrence along with the jury.49

De Peña, for his part, argued that the killing was not deliberate50 and that DeLuna would not be a danger in the future if he was imprisoned instead of executed.51 The jury, he reminded them, had to find both things to be true in order to come back with a death sentence.

Bizarrely, and perhaps disastrously for Carlos DeLuna, Lawrence argued the exact opposite. He said that the way Texas law was written, everyone found guilty of murder at the first stage of a capital trial (which required a finding that the killing was "intentional") also was guilty of "deliberate" killing.52 He then argued that only someone who was entirely without sin could avoid a "yes" answer to the second question, whether he might be a danger in the future.53 Lawrence criticized both legal rules as silly and unfair. The first, he said, was "ridiculous," the second was "impossible."54

Having in this way told the jurors that, if they followed the law, they had to impose death on his client, Lawrence then indulged his fondness for personal attacks by insulting the jurors. As Schiwetz had already reminded them,55 the jurors had all promised the judge that they would follow the law and consider the death penalty. Lawrence now argued that they would be "absurd" and "selfish" "destroyers of life" who put themselves "above God" if they imposed the penalty.56

Even in arguing that enough doubt about DeLuna's guilt existed to justify a life sentence, Lawrence put the matter in personal terms, telling the jury that it was his right to "disagree" with them about DeLuna's guilt.57

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 54 ("But you promised us, everyone of us, and you took an oath that you would answer these questions based upon what you thought the answers should truly be, not on whether or not you wanted to see Carlos DeLuna die; not on whether you are for or against the death penalty or what-have-you; simply on the basis of what the evidence showed. You swore an oath, and you promised us all that, and now you're going to be asked to answer two pretty simple questions.").

Until 1991, Texas excluded prospective jurors unwilling to apply the death penalty from sitting on capital cases as a matter of law. See Tex. Penal Code Ann. § 12.31(b) (1974), amended by Tex. Penal Code Ann. § 12.31(b) (1991) ("A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact."). Current law permits prosecutors to remove such jurors "for cause." See Tex. Code Crim. Proc. Ann. Art. 35.16(b)(1) (2005) (allowing the State to use for-cause challenges if "the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty");" see also Adams v. Texas, 448 U.S. 38, 50 (1980) ("We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths.").

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 55, 56 ("Deliberately basically means the same thing as intentional. You were charged yesterday, you had to find this Defendant intentionally caused the death of Wanda Lopez."; "The second question, as we told you, is the gist of the whole matter . . . . Is there a possibility that the Defendant, Carlos DeLuna, [would] commit criminal acts of violence that would constitute a continued threat to society.").

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 56 ("You can hear the scream when he stabbed her, or you can take that knife and look at it, open it up and try and imagine what effect that would have sticking it in the lungs or the heart and trying to decide whether that was all done deliberately.").

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 56 ("And you can listen to that tape again, if you want to. You can listen to her begging for mercy.");

Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 16A (describing Schiwetz's argument in favor of a death sentence: "'Listen to the tape again,' he said. 'Listen to her begging for mercy. Listen to that scream.'").

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 57 ("You have State's Exhibit 41 which is the Pen[itentiary] Pack [DeLuna's prior record], and if you will take a look at it and look at the dates on here, you will see that on June 19th, 1980, the Defendant attempted to rape a woman in Dallas County. Then on July 26th, 1980, convicted—he was stealing a car, unauthorized use of a motor vehicle, that's also in Dallas. He got three years for that, and he went to the penitentiary.").

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 57 – 58 ("Or you can become mentally a convict. You can mentally adopt the convict attitude, the convict psychology. . . . Carlos DeLuna had that opportunity, just like everybody else. . . . And . . . two days later [after he got parole] DeLuna let the world know what to expect from him [when] he tried to rape his best friend's mother. That says about everything you need to say about Carlos DeLuna.").

See Associated Press, Parolee Given Death Penalty For Murder, July 22, 1983 ("The attempted rape occurred in May 1982, two days after DeLuna's parole, said prosecutors, who told jurors that DeLuna has "the mind of a convict.").

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 58 ("He let the world know about the probability of future acts of violence which would constitute him a continuing threat to the civilized people of the world, because Carlos DeLuna went over and tried, I submit to you, tried to rape his best friend's mother.").

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 80 ("And I submit to you Carlos DeLuna right now wants nothing more—he would be absolutely delighted with life in the penitentiary. He doesn't mind the penitentiary. He kind of likes it, he does absolutely nothing to stay out of it, he's been in there twice already and would just as soon kill to get back in there.").

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 85 ("We didn't drag in these bloody clothes; we didn't have [Wanda Lopez's daughter] up here running around on the front row through the whole trial; we're trying to keep it just tied to the evidence, to decide these questions just on the evidence, like you promised to and like we believed you would.");

see supra Chapter 13, note 35 and accompanying text (discussing the first exhibit put into the record by the prosecution at trial: a picture of Wanda Lopez with her daughter in her lap).

See supra Chapter 11, notes 94–96 and accompanying text.

Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 75 ("I don't think that there's a conflict there. I think that basically if you consider that particular issue, and you can determine whether or not this was done deliberately, or was it done knowingly. And if so, then was it deliberate or was it something that occurred just as a result of the total circumstances surrounding the death of Wanda Lopez. Please consider that.").

Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 76 ("But I think there's a question, and I—I think you should seriously consider whether or not Carlos is going to constitute a continuing threat to society.").

James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 63, 65, 66, 69–70 ("I find the first one [first sentencing question the jury must decide] ridiculous because it says did he do it deliberately. Well, pray tell, if you find with specific intent, how can you not find deliberate; right?").

James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 65, 69–70 ("[I]t would seem that the only way you could answer the second question [favorably to the defendant] is you [i.e., the defendant] would have to be a perfect citizen. Nothing, no record, Boy Scout, the whole bit. That seems like the only avenue for a person that's found guilty of capital murder to receive a life sentence"; "Look at these two issues again. I told you I called the first one ridiculous, the second one impossible. . . . It's unconceivable because of the ridiculous first question, and the impossible second question.").

James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 69–70 ("Look at these two issues again. I told you I called the first one ridiculous, the second one impossible. . . . It's unconceivable because of the ridiculous first question, and the impossible second question.").

See supra note 38 and accompanying text.

James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 64, 66, 67 ("Not only that, our society has put us into a situation where we're only concerned with ourselves. We have become a selfish, individualistic society. . . . Look how above God we're getting. I have the right to create life, I have the right to destroy life. Who are we? Mere human beings trying to act like supreme beings."; "When we get into this particular area of determining whether one person should live or die, we're treading in an area that, we, as human beings, have no right to be.").

James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 61, 63, 68, 70 ("We respect your decision for capital murder, but I can also disagree with it."; "I have the right to disagree, just as you do with any law."; "You found him guilty; he says he's not."; "That's the law. And we have a right to disagree.").

Chapter 14
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