HRLR
Los Tocayos Carlos
Chapter 15
Page: 18 of 29
Text: A | A | A
All Chapter 15 Footnotes

"CONSOLIDATED APPEALS AFFIRMED," the opinion concluded.238 Across the panorama of the trial and all the appeals that had come before, nothing had gone wrong.

The date was April 26, 1989, not yet six years since the jury had sentenced Carlos to die.

* * * * *

Anderson tried to get the full set of judges on the court of appeals to "rehear the case en banc,"239 and he asked the United States Supreme Court to step in.240 By October 10, 1989, both courts had refused.241

* * * * *

After losing all these rounds, DeLuna's only remaining option was one of the longest shots the legal system knows—something called a "successive habeas corpus petition." Courts wouldn't even consider that kind of petition unless something went horribly wrong the first time around. Realizing that it might've been his own representation that went wrong, Anderson decided that he had to get another lawyer on the case to make that call.242

Anderson turned to Kristen Weaver, another of the rare Dallas lawyers willing to take capital appeals for a fee.243 Weaver was a former assistant district attorney who'd recently switched to defense work and specialized in capital appeals.244

As Weaver told the private investigators years later in his Dallas home, he was reluctant to take on the case. He knew the chances of getting a capital sentence reversed in a successive writ in Texas "were, quite literally, statistically, less than winning the lottery."245

"It just didn't happen," Weaver answered when asked how often successive petitions had succeeded in Texas before then. "This is the state where the [Texas] court of criminal appeals concluded that there was nothing ineffective when a lawyer slept through a capital trial."246

Though Weaver told Carlos's sister Rose and her husband that the chance of getting Carlos's sentence overturned was "absolutely zero," the Rhotons "felt, for the family's sake, that they needed to do everything that was possible." Weaver agreed to take the case.247

Rose tried to convince Weaver that her brother was innocent and that another man named Carlos had committed the crime. Weaver told her that the police had her brother cold. All he could do was try to save Carlos DeLuna from being executed for that crime.248 Weaver told Carlos the same thing the one time they met.249

* * * * *

On November 2, 1989, Eric Brown, a Corpus Christi judge new to DeLuna's case, set December 7, 1989, as the date for Carlos's execution.250 With just a month to go before that date, Weaver immediately presented Judge Brown with a "successive" application for habeas corpus relief and a request for a delay of the execution.251

Anticipating rapid orders denying DeLuna's requests, Weaver had prepared nearly identical sets of papers to file in the Texas Court of Criminal Appeals in Austin, then the federal District Court back in Corpus Christi, the federal Court of Appeals in New Orleans, and the U.S. Supreme Court in Washington.252

* * * * *

Funny thing was, the papers Weaver filed for Carlos—which the lawyer knew had almost no chance of helping his client, no matter how convincing they might be—were the best filed on the young man's behalf at any stage of his case.253 Weaver's arguments were clear and backed up by legal citations and evidence. Unlike arguments made earlier in the case, Weaver's conveyed a real sense of injustice crying out for a cure, and they didn't defeat themselves.

DeLuna v. Lynaugh, 873 F.2d 757, 761 (5th Cir. 1988) at 761.

See Suggestion for Reh'g En Banc, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. May 10, 1989);

Order Denying Mot. of Appellant to Recall the Mandate and Stay the Setting of an Execution Date, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. June 29, 1989).

Pet. for a Writ of Cert., DeLuna v. Lynaugh, 493 U.S. 999 (1989) (cert. denied Aug. 2, 1989).

See DeLuna v. Lynaugh, 493 U.S. 999 (1989) (No. 89–5442) (denying petition for a writ of certiorari); Order Denying Mot. for Stay of Execution, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. June 29, 1989);

Suggestion for Reh'g En Banc, DeLuna v. Lynaugh, No. 88–2613 (5th Cir. May 10, 1989).

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:27:45 ("Most of those of us who were doing capital cases in Texas took the attitude that if you did the direct appeals you didn't do the writs. If you did the original writ, you didn't do successor writs. Essentially this was based upon a philosophy that we've shot our wad. We've done everything we can think of, we've tried everything we know. It didn't work, so it's time to get someone else to look at it, if only to challenge our competency.").

See generally Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure §§ 28.3, 28.4 (6th ed. 2011) (discussing the extremely stringent limitations on habeas corpus relief in these situations).

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:23:27 ("Richard called me and said that there was some people in his office who were looking for someone to work on a capital writ out of the Gulf Coast area, Corpus area, and that he didn't want to do it, and that it was a successor writ. I told him I didn't want to do it either, but he persuaded me to at least talk to the people.").

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:22:25 ("When I got tired of St. Louis I moved back to Dallas to do work for Henry Wade, the D.A., who was D.A. for thirty-six or -seven years here.").

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:29:55 ("In Texas, in the eighties, the chances of getting a capital conviction reversed were, quite literally, statistically, less than winning the lottery. It just didn't happen. This is the state where the court of criminal appeals concluded that there was nothing ineffective when a lawyer slept through a capital trial, there was nothing ineffective when the judge slept through a capital trial.").

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005).

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:24:12;

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna in Dallas, Texas (Feb. 28, 2005) at 02:24:12 ("Rose Rhoton and Brad Rhoton came to my office. We discussed the situation. I encouraged them to not even do this, because I was absolutely sure it would not succeed. But they felt, for the family's sake, that they needed to do everything that was possible. So I agreed to represent him.").

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:34:24 ("I would comment, in this particular case, I had no reason to believe he was innocent. Indeed, no one was suggesting that he was innocent at that time.");

see also supra notes 86–88 (describing Rose DeLuna's conversations with lawyers who represented her brother).

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:24:12, 02:39:00 ("I went down and talked to him, briefly, in T.D.C. [Texas Department of Corrections.] Went down to talk to a bunch of clients there, and he was one of them. Primarily addressing the status of his case: where he was, what was involved, what we could do, what we could not do, what the chances of success—if any—were, etcetera . . . . I had one conversation with him in person, one by phone.").

See Death Sentence After Mandate, State v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989) at 2;

Pet'r's Objections to Trial Ct.'s Findings of Fact and Conclusions of Law, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 24, 1989) at 1 ("Petitioner is currently under sentence to be executed before sunrise on December 7, 1989.").

Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989);

Appl. for Stay of Execution, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989);

Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989).

Compare pleadings cited supra note 251 (filed in the Nueces County District court), with, e.g., Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989),

and Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989),

and Mem. of Law on Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989),

with Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 89–6262 (5th Cir. Nov. 30, 1989),

and Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 89–6262 (5th Cir. Dec. 4, 1989), and Mem. of Law on Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 89–6262 (5th Cir. Dec. 4, 1989).

See, e.g., Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989), at 3–33.

Chapter 15
Page: 18 of 29