If Lawrence and De Peña knew about this Carlos Hernandez in July 1983, one of two things had to be true about DeLuna's trial lawyers. Either, improbably, they saw this "Carlos Hernandez" in the newspaper and ignored him altogether—though they said they'd been frantically looking for a dangerous criminal by that name. Or, more likely, they did check out this Carlos Hernandez and found he was of no interest to the case—just a man with a common name.
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The value of the 1986 article, of course, was as a clue. It revealed that there was a man named Carlos Hernandez in Corpus Christi who police believed had used a knife in the murder of a young Hispanic woman in November 1979. The article also showed where to locate Hernandez (in jail) and how to find his criminal record to see if he matched what was known about the man who'd used a knife to kill Wanda Lopez in February 1983.
Once Anderson had attached the name to an actual person with a known date of birth and other identifying traits—something Lawrence and De Peña had never been able to do when they represented DeLuna166—it was his job to show Judge Head that this was the "real" Carlos Hernandez, and that if the jurors had known what there was to know about him, they might have reached a different verdict.
A simple search of public records at the courthouse in Corpus Christi would have revealed Carlos Hernandez's age—twenty-eight, closer to eyewitness Baker's mid-to-late twenties estimate of the culprit's age than DeLuna's twenty years;167 height and weight—5'7" and 160 pounds, almost identical to DeLuna;168 his history of convenience store armed robberies;169 his frequent use of a lock-blade buck knife in his crimes and his daily life;170 his arrest lurking outside a 7-Eleven store with a knife two months after the Wanda Lopez killing;171 a raft of mug shots showing a resemblance to Carlos DeLuna;172 and a habit of wearing shabby t-shirts and blue jeans like those Kevan Baker and George Aguirre saw on the man at the Shamrock station with the knife who sprinted away to the north.173
If Anderson had interviewed any of the victims of the crimes Hernandez's courthouse records revealed—or individuals named in the DeLuna trial transcript—he would have come across people like Linda Perales and her stepdaughter Pricilla Hernandez. Both women knew of Carlos Hernandez's admissions that it was he who killed Wanda Lopez while his "tocayo Carlos DeLuna" took the blame.174 That, in fact, is exactly how the out-of-town investigators discovered that this Carlos Hernandez existed.175
Anderson did none of these things. All he produced was the July 1986 Caller-Times clipping, to which he attributed the wrong date—July 1983.That mistake, in turn, invited a logical, but false and devastating, interpretation: Lawrence and De Peña must've seen the front-page article supposedly published right after DeLuna's July 1983 trial and must have looked into this particular Hernandez as they prepared their new-trial request. They then must have discovered he was just an Hispanic "John Smith" and found themselves back where they started, with the "phantom Carlos Hernandez" who haunted only their client's imagination.
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After nothing happened in Carlos DeLuna's habeas corpus case for over a year, District Attorney Jones filed a "Motion to Expedite" requesting a ruling from Judge Head so the State of Texas could get on with DeLuna's execution.176
Because Anderson had suggested in papers submitted to the judge that, with more time, he could find proof of racial and ethnic discrimination and that he was working on a new petition "flesh[ing] out" the claims of poor legal representation at DeLuna's trial,177 the state worried that Judge Head might be waiting for Anderson to file something more.178 If so, the state argued, the year that had passed was enough time for Anderson to have investigated further and provided additional information.179 His failure to file anything proved there was nothing to find.180
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See supra Chapter 11, notes 274–280 and accompanying text (reporting Lawrence's statement after that fact that, if he had had a date of birth for the Carlos Hernandez to whom DeLuna was referring, he could have easily located Carlos Hernandez).
See supra Chapter 6, notes 166–171 and accompanying text.
See supra Chapter 9, note 73 and accompanying text.
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 6–8:
It is respectfully requested that due to the complexity of compiling the statistical background necessary to meet the requirements of McClesky do [sic] to the particular problems of compiling such statistics in Nueces County, that Petitioner's counsel be given a reasonable amount of time to compile such statistics . . . . Petitioner's counsel will use all due diligence to determine if such survey can be completed and under what time limitations it can be completed . . . . Due to the short period of time from the time of Petitioner's present counsel's entry into the case and the need to seek some relief regarding a stay of execution, a shorthand rendition of Petitioner's claims in his Original Petition for Writ of Habeas Corpus were set out . . . . Petitioner's attorney is forwarding to Petitioner an Amended Writ of Habeas Corpus to flesh out the allegations . . . .