Anderson admitted to having no statistics showing a pattern of unfair treatment of Corpus Christi murder defendants whose victims were white Anglos, as opposed to black or Hispanic, and requested more time to come up with some.154 He also conceded that the autopsy referred only to Wanda's race as "white" and had no "separate category" for her ethnicity.155 Then, he proceeded to demolish his claim entirely by appending Wanda's death certificate, which confirmed that Wanda's race was white, but listed her ethnicity as "Spanish origin . . . Mexican."156 The new piece of evidence flatly disproved his claim that his client was a victim of a policy of reserving the death penalty only for people charged with killing non-Hispanic whites.
Anderson provided a few new details to support his argument that De Peña and Lawrence did less for Carlos than they should or could have. He pointed out how infrequently each spoke with DeLuna before trial (De Peña twice, Lawrence four times157) and listed people that the trial lawyers could have called as witnesses at the sentencing stage of the trial (five relatives, a former girlfriend, and a school teacher158).
Even the new details mentioned by Anderson, however, were ones that Carlos and Rose could have supplied from the start, not the kind that an on-the-ground investigation of witnesses in Corpus Christi would have produced. Yet it took the latter type of facts to prove Anderson's case.
As the state lawyers had hammered home in their Motion for Summary Judgment, a successful claim of incompetent counsel required Anderson to prove that extra effort by De Peña and Lawrence—for example, more conversations with Carlos or calling mitigation witnesses to testify—would have generated information strong enough to cause a jury to change its mind.159
Anderson had almost no evidence like that.
* * * * *
Anderson did offer one new piece of information to support his claim about an "alternative hypothesis . . . assailant," whom the lawyer finally gave a name: Carlos Hernandez.160 But out of haste or negligence—the same deficiencies he blamed De Peña and Lawrence for exhibiting—Anderson presented the fact as if it were not new but was known to DeLuna's two trial lawyers when they represented him.
Anderson blew the punch line. He robbed the new evidence of all of its potential power.
"Carlos Hernandez," Anderson wrote in his brief, "came up as an individual who had a prior criminal background and who had the same physical characteristics as Petitioner. On July 25, 1983, shortly after Petitioner was convicted of this offense, Carlos Hernandez was arrested on another charge."161
Anderson's support for this claim was a clipping of the Caller-Times's front-page newspaper article reporting Carlos Hernandez's 1986 re-arrest for the murder of Dahlia Sauceda. Although Anderson put the news article in an appendix to his brief,162 its first page, clipped from the bottom of page 1A of the newspaper, was undated.163
If Anderson had informed himself and Judge Head of the actual date of the article, it would have provided good evidence of what was true: Carlos Hernandez existed and lived in Corpus Christi in 1983, the middle of the 1979 to 1986 period covered by the article.164 The failure of DeLuna's lawyers and the prosecutors to find him and check him out revealed a shoddy investigation, or the absence of even that.165
The manner in which Anderson presented the clipping, however, suggested something different and much less powerful. It seemed to show that Lawrence and De Peña did come across this Carlos Hernandez in 1983, right after DeLuna's trial but before they filed their request for a new trial.
Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 2–6 (explaining that Anderson had only become involved in the case until shortly before DeLuna's scheduled execution date and had not had sufficient time to collect "the type of statistical data" required to make out such a claim, listing reasons why it takes so much time to collect such data, and describing data-gathering efforts hoped the court would allow him to make to prove the claim).
Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 6 (noting that the autopsy does not "recognize a separate category for race in terms of Hispanic . . . .").
See Certificate of Death: Wanda Jean Lopez, State of Texas (Feb 10, 1983) (listing Wanda Lopez's "race" as white and answering "yes" and "Mexican," respectively, to the questions "Was the decedent of Spanish origin?" and "If yes, specify Mexican, Cuban, Puerto Rican, etc").
Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 8.
Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 11:
Trial counsel, although being advised from numerous witnesses that this twenty-one year old Petitioner had to present mitigation of punishment, failed to put on a single witness at the punishment phase at the trial on mitigation of punishment. Although Petitioner was only twenty-one years old at the time of the offense, he was told by trial counsel that it was not necessary to put on the witnesses that he had requested to testify at the punishment state of the trial, including Maria Arrendondo, his sister; Rose Earley, sister; Daniel Conejo, brother; Maria Conejo, sister-in-law; Mr. Perez, [E]nglish teacher at Tom Brown Junior High School; Blas Olivados, stepfather; Belinda Pena, neice [sic]; Diana Pena, neice [sic]; Alicia Caballara, girl friend. Each of those witnesses would have provided testimony beyond just a plea to not impose the death penalty.
Br. of Resp't Supporting Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Nov. 12, 1986) at 7–9, 12–14 (noting that, under the second prong of the controlling legal standard, the prisoner must demonstrate "prejudice," i.e., "that there is a reasonable probability that, but for counsel's errors, the outcome of the appeal would have been different").
Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 9.
Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 10 (emphasis added).
Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 25–26 (reproducing clipping of Libby Averyt, City Man Is Jailed in 7-Year-Old Murder Case,Corpus Christi Caller-Times, July 25, 1986 at 1A, 18A (reporting that Carlos Hernandez "was arrested yesterday in connection with the brutal slaying seven years ago of a 27-year-old woman who was found with an 'X' carved in her back.").
Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. C–86–234 (S.D. Tex. Jan. 22, 1987) at 25–26 (reproducing clipping of Libby Averyt, City Man Is Jailed in 7-Year-Old Murder Case,Corpus Christi Caller-Times, July 25, 1986 at 1A, 18A (The run-over page of the clipping, buried in the Appendix, did have the "July 25, 1986" date on it in small print. But Anderson missed the date and misinformed the judge about it, and Judge Head's opinion took Anderson's word for the fact that article appeared in July 1983, not July 1986)).
See supra Chapters 6–9.
See supra Chapter 9, notes 59–105 and accompanying text.