Figure 34. (Left) Prosecutor Kenneth Botary's July 22, 1983 motion to withdraw the physical evidence in the DeLuna case from the court file, and order granting the motion. (Right) Part of the list of exhibits Botary asked to withdraw, in which he inadvertently attributed to "Carlos Hernandez" items that relate entirely to Carlos DeLuna.
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The next Tuesday, six days after hearing the jury condemn his client to death, defense lawyer James Lawrence collected his $5,000 payment from the county for representing DeLuna.11 A month later, Hector De Peña collected his $4,500. 12
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That same Tuesday, Carlos DeLuna arrived on death row.
His new home was the Ellis Unit near Huntsville, Texas,13 where people sentenced to die wait out the years it takes for state and then federal appeals courts to decide whether their convictions and sentences are legally sound enough to permit them to be executed.14 On average across the United States, the appeals process takes thirteen years.15
The day after arriving, Carlos wrote his half-sister Vicky Gutierrez the first of fifteen letters from death row. "I Finally made it to Death Roll," Carlos wrote. "Don't worry About me I am Fine. But If you could come visit me some time let me know when. Bring our brothers + sisters I got there name on the List to all of you'll can come."16
Carlos's second letter, written two weeks later, was a similar mix of bravado, anxious requests for visitors, and bad spelling:
send my Regards to Every body. Tell Manuel I as still Alive they haven't killed me yet? Ha Ha. tell Him to write Atleast until I am still Alive its going to be to Late once I am DeaD. Well Vicky I will be expecting you to come whenever you can. Don't you''ll worry About me What Ever happen. … Rember I told you one I am not scare to go. I Don't want to Die but IF I have to Die will that's All I can say is bye Right.17
And then a month later, pathetically mistaking an order setting a hearing on his lawyer's routine motion for a new trial for the granting of a new trial,18 Carlos wrote:
I want to know why you didn't tEll me mom DieD? Also IF you would have SAID something I could have gone to the Funeral. Say hello to All your Family For me. . . .
I went to Corpus to go to Court. I got a New trial. But They haven't set A Date yet ok. I will let you know as Soon As they Do."
P.S. I hope you can come visit me Real soon. Because I really have to tell your something Important. I am REALLY SeRious About this Matter Vicky.19
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Order Granting Statutory Att'y Fee for James Lawrence, Texas v. DeLuna, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 26, 1983) at 1.
Order Granting Statutory Att'y Fee for Hector De Peña, Jr., Texas v. DeLuna, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Aug. 24, 1983) at 1.
Reception of Carlos DeLuna at Ellis Unit of the Texas Department of Corrections (July 26, 1983) at 1;
see also James Lawrence, Aff. (Aug. 8, 1983) at 1 ("Carlos De Luna is presently incarcerated in the Ellis Unit of the Texas Department of Corrections . . .").
See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 9.1 (6th ed. 2011) (describing the process).
See Tracy L. Snell, Bureau of Justice Statistics Tables, Capital Punishment 2009 (Dec. 2010) at 19, Table 18, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cp09st.pdf (indicating that the average number of years under sentence of death prior to execution as of December 2009 nationwide is 12.7 years); see also James S. Liebman & Peter Clarke, Minority Practice, Majority's Burden: The Death Penalty Today, 90 Ohio St. J. Crim. Law 255, 300 (2011) ("Reversals at [the Death Row stage] occurred on average about thirteen years after the prisoner was sentenced to die").
Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (July 27, 1983) at 1.
Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (Aug. 9, 1983) at 1.
See Mot. for a New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Aug. 9, 1983) at 1;
First Am. Mot. for a New Trial, Texas v. DeLuna, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 12, 1983) at 2;
Judgment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. at Sept. 12, 1983) at 3;
see also (Appl. for Subpoena of Estella Flores Jimenez, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 9, 1983) at 2 (subpoenaing juror to testify at the new-trial hearing about whether her impartiality was adversely affected by a robbery occurring in her presence during the trial);
Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (Sept. 17, 1983), at 1–2.