"He was seen and identified by witnesses before, during, and after the offense," the order continued.299 "Police apprehended DeLuna after they conducted a search of a nearby neighborhood and found DeLuna hiding underneath a parked truck."300
The only other facts the court mentioned were that DeLuna "presented no evidence during the punishment phase of the trial"301 and failed at every stage of the proceedings to object to how Texas law dealt with mitigation.302
"APPLICATION FOR HABEAS CORPUS DENIED," the court's decision concluded. "STAY OF EXECUTION DENIED."303
* * * * *
People in the execution business have a name for how death row inmates spend their last day. They call it "death watch." Carlos would spend the next day, December 6, with a pastor provided by the prison and four of his brothers and sisters, watching for death to come.
Apart from divine intervention—or perhaps as a sign of it—the only thing that could keep death away was a rare order from the United States Supreme Court staying the executioner's hand or an even rarer decision by the Texas Governor to commute the death sentence to life in prison.
* * * * *
Talking to the private investigators in his Dallas living room fifteen years later, Weaver was still bitter. He pointed out that the legal issues he'd raised in DeLuna's case "were later acknowledged" by the federal Court of Appeals and the Supreme Court, "and other people got off [death row] on them."304 Carlos DeLuna, he said, just had the misfortune of making the argument at the wrong time.305
* * * * *
"Unbelievably swift," Karen Boudrie said, comparing DeLuna's capital case to many others she covered during a career as a television journalist in three southern states that carry out a lot of executions.308
She remembered asking her Corpus Christi sources in law enforcement and the courts why DeLuna's appeals went so fast. "I never got a really good explanation from anybody," she said.309
"It just was unimaginable to me. There were people on Death Row that had been there ten years, fifteen years longer than Carlos, who were still there" when they executed him. "[H]e was just rushed through. It was unheard-of."310
* * * * *
Boudrie had maintained a professional interest in DeLuna ever since he'd agreed to let her interview him on camera after he arrived on death row.311 When he began writing her letters, Boudrie had put aside her misgivings about being a convicted killer's pen pal and cultivated him, hoping, she admitted later, that he might someday confess to her, giving her a scoop that could propel a young reporter's career.312
Three times, Boudrie aired exclusive on-camera interviews with DeLuna on death row, as he spoke to her through a small metal grate in a thick glass partition laced with chicken wire.313 Each time, he talked about what happened on the night of the incident that put him there.314
DeLuna v. Lynaugh, 890 F.2d 720, 722–23 (5th Cir. 1989) ("Because he deliberately failed to introduce mitigating evidence as a tactical decision, appellant's case does not come within the requirements announced in Penry v. Lynaugh"); see also Order Denying Pets. for Habeas Corpus and for Stay of Execution, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 5, 6, incorporated by reference in DeLuna v. Lynaugh, 890 F.2d 720, 724, 725 (5th Cir. 1989) ("Pending is respondent's motion to dismiss for abuse of the writ procedure because petitioner failed to raise this challenge in his first petition for writ of habeas corpus . . . ."; "In King v. Lynaugh, the Fifth Circuit held that the Penry claims are not 'recently found legal theor[ies] not knowable by competent trial counsel.' Thus, petitioner's first and second grounds for writ of habeas corpus may be dismissed for abuse of the writ.") (citation omitted);
see also Kathy Fair, Condemned Man Appeals Case to Supreme Court, Hous. Chron., Dec. 6, 1989, at 28A ("The [judges] ruled DeLuna had not presented any mitigating evidence on which jurors could have been instructed [because] his attorneys had opted not to introduce such evidence . . . .").
DeLuna v. Lynaugh, 890 F.2d 720, 723 (5th Cir. 1989).
Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:47:40 ("Several of the issues that were raised at various stages of his case and rejected were later acknowledged and other people got off [i.e., got relief from death sentences] on them. He had the misfortune of being at the wrong time, before the courts would really acknowledge it.");
see Kathy Fair, DeLuna Waits for Execution in '83 Murder, Hous. Chron., Dec. 7, 1989, at 36A:
DeLuna's attorney, Chris Weaver of Dallas, said he was frustrated with the lower courts' refusal to grant a stay based on claims that jurors were not instructed on consideration of mitigating evidence, a matter argued successfully before the U.S. Supreme Court in what is widely called the Penry decision. "I think the courts are scared to death of Penry," Weaver said. "I think the 5th Circuit is attempting to limit Penry to (that one case) probably because if it is applied broadly, there are 287 others on death row convicted on the basis of a statute that's been determined to be unconstitutional."
See supra note 15 and accompanying text.
Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:34:55–03:37:24:
Q. You covered a number of capital cases in Texas when you were working in media there. Did you have any thoughts or impressions about the time it took for this case to get from trial to execution?
A. Unbelievably swift, this case was. We talked about that. I talked about that with Carlos. . . . I never got a really good explanation from anybody. I don't understand. It just was unimaginable to me. There were people on Death Row that had been there 10 years, 15 years longer than Carlos, who were still there. And he was just rushed through. It was unheard-of. And right about the time, right before this last death date for Carlos, I remember they were working on some legislation concerning the swiftness of the appellate process. They were actually trying to cut down the number of appeals. This was being pushed at the time. They were saying the appeals process was taking too long, and they were trying to limit the number of appeals . . . . I remember interviewing . . . [a local] judge. . . . And I remember one of his quotes. Judge Villareal said, "We've got to make sure we dot all our I's and we cross all our t's when it comes to these capital cases, but they're dragging on." There was just no good explanation for it from anybody, that I ever got. It was just unbelievable. That was why I kept thinking there's more time, there's more time, if I'm going to do something, if I'm going to try to help Carlos or go visit him again, I've got plenty of time. I never dreamed that it was going to happen when it did . . . .
See Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:22:20–01:25:50:
A. In 1983 I went to work for my first television job in Corpus Christi, Texas, at the CBS affiliate, KZTV. I worked there for a couple of years, then I moved to the NBC affiliate in Corpus Christi, Texas. So I was there [Corpus Christi] for a total of six years, until 1989. Then I moved to Georgia to start up a television station in Georgia as the news director and main anchor there. And after a couple of years I moved to New Orleans to work at the FOX affiliate in New Orleans, where I worked on-air as an anchor and reporter for about nine and a half years. . . .
Q. Over the course of your work . . ., how many capital trials did you cover?
A. Gosh, I wish I knew the actual answer. But a number of capital murder trials I watched and covered. And then in New Orleans, covered a number of capital murder trials as well, and noticed the differences in what constitutes a capital trial in Louisiana versus Texas versus Georgia.
See supra notes 25–28 and accompanying text.
Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:28:50–01:29:56:
After that first meeting, Carlos began to write to me. He had my address at the station, because I had to write to him to request the interview, to get on his list, and whatnot. So he began to write to me. At first it was kind of an eerie thing. Everyone [said], "Oh my gosh, this Death Row inmate is writing to you, and that's kind of freaky and weird." But I found it interesting, just to see what he had to say, the questions he asked. I was kind of fascinated by the whole thing, to learn more about him as a person, what he was going through, what was happening with his appeal. And as a journalist, I wanted to keep that connection going. I thought, maybe one day I'll be the person he reveals some deep, dark secret to, perhaps, and just continue to stay connected as this case developed. I figured this would be years and years before the appeals were exhausted.
Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:16:02–03:18:00:
After doing the interview with Carlos, he obviously had my address then, at the TV station, and wrote back afterwards and said he enjoyed meeting me and whatnot. I didn't write him back. I was very, I guess, kind of weirded out that he was just going to start writing me letters. I had done my interview, it was over with. He didn't give up. He proceeded, after I did not write Carlos back after he wrote me his first letter, he made this card. It just said, "Thinking of you, hope you're doing well. Did you ever get my first letter? Is there a reason that you're not writing me back? If there is, I wish you'd tell me. I know you're busy." He also mentioned the fact that he was thinking, he'd thought a lot about his life. He thought about writing a book, and would I help him? Just kind of a brief note in here. I guess at that point I made the decision to go ahead [and] write him back. Maybe that wouldn't be such a bad thing. I wasn't going to be a Death Row groupie, but I would, as a journalist, continue to stay in correspondence. Maybe he had a story to tell that was yet to be told. Maybe he could be interviewed again down the road, so why don't I stay in touch. That's how the correspondence started, from the initial interview on Death Row in 1984. It wasn't a letter a week, a letter a month, or even a letter a year. There were just—He tended to write me a lot more than I wrote him. He enjoyed writing. I was not the best letter-writer. I didn't enjoy it. After typing all day at my job, the last thing I felt like doing was sitting down and writing a letter.
Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:27:23:
I had no idea what to expect [when she first went to interview DeLuna on death row]. I wasn't sure whether I'd be in a room with him, or if there'd be guards all around. It was very interesting, because here's, for the first time, after covering this trial about someone who everybody called this heinous person, this woman-hater, this violent person. And I'm sitting face-to-face, with glass about this thick, from him. And he kind of seemed like an average, nice guy in some respects. And you have to keep telling yourself, this is the guy they were telling me about a year ago is horrible. It was interesting to see him in that light, to see him more as a human being, not just this caricature of himself that was portrayed in the trial. To sit down and have a conversation with him . . . .