HRLR
Los Tocayos Carlos
Chapter 15
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All Chapter 15 Footnotes

But Judge Head didn't know the half of it. The same police and courthouse file cabinets with the DeLuna arrest records that Anderson belatedly produced had a much thicker dossier on the Carlos Hernandez described in the Caller-Times article Anderson had attached to his earlier brief. Yet Anderson never asked to look at that file, before or after the final buzzer. Instead, he focused his late filings entirely on the claim that DeLuna did not get a fair shake at the sentencing stage of his trial. Anderson conceded his client's guilt and asked the judge to reconsider only the legality of the young man's death sentence.

* * * * *

It was just after Anderson filed his untimely papers that Carlos complained to Vicky about courts not "want[ing] to hear our appeals any more on Death Row."209 Carlos was right. In the 1980s, there was a monumental shift in how courts handled capital cases—a backlash against death row inmates, who the courts thought were deliberately holding back information until the last minute in order to delay the inevitable.210 In response, the courts replaced the centuries-old rule that judges in capital cases should act "in favorem vitae"—in favor of life, by giving every benefit of the doubt to the prisoner to be sure he got a fair trial and appeal before being executed—with an unspoken rule of "in favorem mortis"—in favor of death.211

Judges began assuming that mix-ups and missteps by lawyers for even poor and uneducated death row inmates were not accidental and instead were deliberate efforts to delay executions and make a mockery of courts and the death penalty itself. 212

To fight back, judges started applying procedural rules—for example, that evidence must be presented at the first available chance—more harshly in cases where life was at stake than, for example, when the matter at hand was a failure to pay a $2 debt.213

* * * * *

Judge Head denied all of Carlos DeLuna's requests on July 19, 1988.214 He wouldn't let Anderson slip new information into the case long after the deadline for doing so had passed.

Only one additional court was obliged to review DeLuna's case before the State of Texas would be free to execute him: the United States Court of Appeals for the Fifth Circuit in New Orleans. That court gave Anderson three months to file a brief.215

* * * * *

For many death row prisoners, the climactic event in their appeals is their lawyer's briefing and argument to one of the nation's eleven federal courts of appeals.216 Those regional courts sometimes have a dozen or more judges overall, but a panel of only three decides most federal habeas corpus appeals.217

Those three judges have a panorama of the trial and all the prior appeals in the case. An error at any of those earlier stages might provide a reason for the judges to order a new capital-murder trial, or at least a new trial to determine whether the death penalty should be imposed.218

The three judges know their decision will probably be the last word on the legality of the prisoner's conviction and sentence. The other judges on the regional court can vote to put aside the decision of the panel of three and "rehear the case en banc," meaning in front of all the judges on the court, but that rarely happens.219 Also rare is review by the United States Supreme Court.220 Courts are even less likely to rule favorably on a successful "successive federal habeas corpus petition"—an effort to go through the entire federal habeas corpus process a second time, starting back in the district court.221

If there is a time for lawyers representing clients on death row to put their best foot forward, it is in the federal court of appeals.

* * * * *

Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (June 30, 1988);

see Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter in Dallas, Texas (Feb. 28, 2005) at 03:21:15–03:34:45:

Q. You have a letter that Carlos wrote to you on December 4th, 1989. I wonder if I could get you to read that letter for us. Give us the date and when it was in relation to when he was executed.

A. (picks up letter) This is December 4th, 1989. This would have been three days before his execution. And he writes, (reads) "Dear Karen, I honestly don't know what to say to you, only that it looks real bad at the present moment. The court of appeals and the federal court in Corpus turned down my appeal. We are appealing to the Fifth Circuit in New Orleans, and, of course, to the United States Supreme Court. . . . I honestly think if they stop the execution it will have to be stopped by the Supreme Court. I don't have no faith in the Fifth Circuit in New Orleans. They've gotten to the point where they don't want to hear any more appeals at all. Especially if you've already been through there once before, they just don't want to even look at your appeal again. But it is not over until it's over."

See, e.g., Stephens v. Kemp, 464 U.S. 1027, 1032 (1983) (Powell, J., dissenting from grant of a stay of execution):

In the nearly nine years of repetitive litigation by state and federal courts there has been no suggestion that the death sentence would not be appropriate in this case. Indeed, if on the facts here it was not appropriate, it is not easy to think of a case in which it would be so viewed. Once again, as I indicated at the outset, a typically "last minute" flurry of activity is resulting in additional delay of the imposition of a sentence imposed almost a decade ago. This sort of procedure undermines public confidence in the courts and in the laws we are required to follow.

Coleman v. Balkcom, 451 U.S. 949, 957–958 (1981) (Rehnquist, J., dissenting from denial of certiorari):

It seems to me that we have thus reached a stalemate in the administration of federal constitutional law. Although this Court has determined that capital punishment statutes do not violate the Constitution, and although 30-odd States have enacted such statutes, apparently in the belief that they constitute sound social policy, the existence of the death penalty in this country is virtually an illusion. Since 1976, hundreds of juries have sentenced hundreds of persons to death, presumably in the belief that the death penalty in those circumstances is warranted, yet virtually nothing happens except endlessly drawn out legal proceedings such as those adverted to above. Of the hundreds of prisoners condemned to die who languish on the various "death rows," few of them appear to face any imminent prospect of their sentence being executed. (citations omitted)

See also Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 Hum. Rts. 14, 16 (1987) ("In federal habeas corpus cases coming to the Court since 1983, an impatience to decide the cases quickly, so as to avoid delaying executions, seems increasingly to be taking precedence over any concern to decide them fairly or reliably.").

See Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 Hum. Rts. 14, 15 (1987) ("Today, the temptation that appears to afflict a majority of the Supreme Court of the United States is to give death-sentenced inmates less, not more, of a chance than other litigants."); Adam Thurschwell, Federal Courts, the Death Penalty, and the Due Process Clause: The Original Understanding of the 'Heightened Reliability' of Capital Trials, 14 Fed. Sent'g Rep. 14, 17 (2001) ("The historical examination required by parallel claims in the examination reveals a broadly accepted judicial doctrine at the time of the Founding which required, in favorem vitae(in favor of life) that statutes imposing capital punishment be 'construed literally and strictly.'"); Julia E. Boaz, Summary Processes and the Rule of Law: Expediting Death Penalty Cases in the Federal Courts, 95 Yale L.J. 349, 357 (1985):

The petty gambler or drug pusher who files a habeas corpus petition in a court of appeals possesses the basic procedural tools to challenge his conviction and sentence: He may obtain counsel who will not be hampered in her ability to represent him thoroughly and vigorously; he may see that his case is fully briefed and, if need be, argued orally before judges who have been duly assembled to hear him out. Not so the defendant who possesses a certificate of probable cause to appeal his death sentence. Such an effect does indeed ensure that "death is different."

See, e.g., Stephens v. Kemp, 464 U.S. 1027, 1032 (1983) (Powell, J., dissenting from grant of a stay of execution):

In the nearly nine years of repetitive litigation by state and federal courts there has been no suggestion that the death sentence would not be appropriate in this case. Indeed, if on the facts here it was not appropriate, it is not easy to think of a case in which it would be so viewed. Once again, as I indicated at the outset, a typically "last minute" flurry of activity is resulting in additional delay of the imposition of a sentence imposed almost a decade ago. This sort of procedure undermines public confidence in the courts and in the laws we are required to follow.

Coleman v. Balkcom, 451 U.S. 949, 957–958 (1981) (Rehnquist, J., dissenting from denial of certiorari) (citations omitted):

It seems to me that we have thus reached a stalemate in the administration of federal constitutional law. Although this Court has determined that capital punishment statutes do not violate the Constitution, and although 30-odd States have enacted such statutes, apparently in the belief that they constitute sound social policy, the existence of the death penalty in this country is virtually an illusion. Since 1976, hundreds of juries have sentenced hundreds of persons to death, presumably in the belief that the death penalty in those circumstances is warranted, yet virtually nothing happens except endlessly drawn out legal proceedings such as those adverted to above. Of the hundreds of prisoners condemned to die who languish on the various "death rows," few of them appear to face any imminent prospect of their sentence being executed.

Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 Hum. Rts. 14, 50 (1987) ("[Justice Powell, discussing a request for a stay of execution] implied that the timing of these applications was contrived by death-row inmates' lawyers of nefarious, albeit undescribed—and, to me at least, entirely obscure—reasons of supposed tactical advantage."); Julia E. Boaz, Summary Processes and the Rule of Law: Expediting Death Penalty Cases in the Federal Courts, 95 Yale L.J. 349, 355–56 (1985) ("Members of the Court have repeatedly expressed impatience and irritation with execution delays, an attitude suggesting illegitimate manipulation of procedures on the part of death penalty lawyers.");

See, e.g., Smith v. Murray, 477 U.S. 527, 527 (1986) (allowing a death row inmate to be executed despite the use in his case of a sentencing procedure that the Court had held in prior cases violated the Constitution and required the death verdicts to be reversed; justifying the denial of relief based on the inadvertent failure of a prior lawyer in the case, who previously had objected to the procedure, to repeat the objection at one step of the defendant's appeals); Barefoot v. Estelle, 463 U.S. 880, 894–95 (1983) (permitting federal habeas corpus courts to use "summary procedures" that "depart[] from the normal, untruncated processes of appellate review" in order to expedite executions); Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 Hum. Rts. 14, 54 (1987) ("[Y]et a death-sentenced appellant who has obtained a certificate of probable cause can have his appeal decided on the merits under guise of denying a stay of executive without the full time for briefing, argument and judicial deliberation that would be permitted in a five-dollar tax case or a two-dollar social security case. This is a far cry from the traditions of Anglo-American justice requiring especially careful review of claims of error in death cases."); Julia E. Boaz, Summary Processes and the Rule of Law: Expediting Death Penalty Cases in the Federal Courts, 95 Yale L.J. 349, 361 (1985):

The emergency review conditions shaped by the new procedures exacerbate the blunders of all too human lawyers, causing them to take on a fatal significance. In the case of James Hutchins, members of a local firm serving as Hutchins' counsel failed to challenge the jury selection process in the case in his first habeas corpus petition. The issue, the subject of a favorable ruling before a federal district judge of the same circuit and currently pending before the Supreme Court, was later raised in Hutchins' second petition. Hutchins' counsel attributed their oversight to the flurry of activity that surrounded the first petition . . . And by the time of the second petition, in March, 1984, the issue was obscured by the fact that the case was moving through the courts at the blistering pace required by the imminent execution date . . . Hutchins was executed on March 16, 1984.

See Br. of Petitioner-Appellant, DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989) at 6 ("On July 12, 1988, Petitioner/Appellant filed a Motion to Attach Affidavits along with a number of Affidavits supporting its claim of Petitioner/Appellant's trial counsels' failure to investigate and present mitigating evidence that was available to Petitioner/Appellant's trial counsel at the punishment phase of the trial. On July 19, 1988, the district court entered an Order Denying Relief from Judgment. . . .");

see also David Teece, Judge Lifts Stay of Execution for DeLuna, Corpus Christi Caller-Times, July 20, 1988:

DeLuna has continued to maintain that he is innocent in Lopez's murder, claiming the assailant was actually a friend of his named Carlos Hernandez. At the trial, DeLuna testified that he was across the street and saw the killing, but walked away without reporting it because he was a convicted felon and did not want to jeopardize his parole. Police found DeLuna several blocks from the scene of the killing hiding under a car with a wad of money in his pants pocket, according to prosecutors. . . . Four witnesses at the trial testified that they saw DeLuna inside the service station and fleeing the scene on foot.

Br. of Petitioner-Appellant, DeLuna v. Lynaugh, 873 F.2d 757 (5th Cir. 1989) at 6 (noting that the brief was filed on Oct. 24, 1988, after "Petitioner/Appellant gave notice of appeal on July 28, 1988");

see also DeLuna v. Lynaugh, 873 F.2d 757, 758 (5th Cir. 1988) ("The Attorney General of Texas informed this Court that it would not ask that a new execution date be set until after the appeals were heard in this Court.").

See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure §§ 3.1, 9.1 (6th ed. 2011) (providing an overview of the federal habeas corpus procedures under AEDPA and describing the kinds of legal claims that provide permissible bases for habeas corpus relief).

See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure §38.1(b) (6th ed. 2011) (indicating that a three-panel court usually decides these types of cases).

See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure §§ 8.1, 32.1–32.5, 37.3 (6th ed. 2011) (describing the permissible bases for habeas corpus review, factors used in determining whether or not relief should be granted, and the standards courts use in reviewing habeas petitions presenting both legal and factual questions).

See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 38.1(b) (6th ed. 2011).

See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 39.3(c) (6th ed. 2011) (discussing the procedures for granting certiorari for stays of execution).

See generally Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 28 (6th ed. 2011) (discussing the standards and procedures for review of both "same-claim" and "new-claim" successive habeas petitions).

Chapter 15
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