HRLR
Los Tocayos Carlos
Chapter 15
Page: 7 of 29
Text: A | A | A
All Chapter 15 Footnotes

"I feel horrible," she lamented, "that I could not help him in any way. I did not understand any of the laws. I did not understand anything they were saying in the trial. And every person that I spoke to said he committed this crime, would not give him a chance."89

Even when she hired attorneys to help Carlos, "They even said he did this crime. They never gave him a chance."90

* * * * *

On October 7, 1986, Anderson filed an "Application for Writ of Habeas Corpus" for Carlos DeLuna in the local court in Corpus Christi. Anderson also asked that court and the Texas Court of Criminal Appeals to delay the execution set to occur eight days later.91 "Habeas corpus" is a Latin phrase meaning "bring the body." It is an ancient method of petitioning a court to require officials holding a person in custody to produce him and prove that his imprisonment is legal.92

Anderson offered two main reasons why Carlos's imprisonment and sentence were not legal.

First, Anderson accused Corpus prosecutors of unlawfully deciding when to seek the death penalty based on the race and ethnicity of murder victims.93 Those prosecutors, he claimed, believed that crimes against whites were more serious than ones against blacks and Hispanics, so if you were charged with murdering a non-Hispanic white person, you were more likely to face the death penalty than someone charged with killing a black or Hispanic victim.94 That, Anderson urged, was illegal discrimination.95

In fact, Anderson had no information about the kinds of murder cases in which Corpus Christi prosecutors did and didn't seek the death penalty. Instead, he relied on statistics for Texas as a whole.

"Recent studies of the death penalty practice by Texas prosecutors," he wrote, "show[] that of the 389 capital murder cases filed in the State of Texas where the victim was black or Mexican-American, only 2.3% resulted in a death sentence, whereas in 1501 capital cases filed in which the victim is [Caucasian], 10.7% resulted in the death penalty."96

Anderson claimed that this practice harmed DeLuna because he "is an hispanic [sic] male," and "[t]he victim of the offense [Wanda Lopez] as listed by autopsy records is a white female."97

Legal claims like this were being made by death row inmates all over the country at the time.98 But there was a problem with raising the point in DeLuna's case. Like DeLuna himself, his alleged victim, Wanda Lopez, was not Anglo. She was Mexican-American.

At the time, it was common in official documents in Texas to distinguish between race (based mainly on skin color) and ethnicity (referring to the person's or her family's country or region of origin)—sometimes reporting one or the other and sometimes reporting both.99 The autopsy Anderson referred to reported Wanda's race or skin color as white but didn't report her ethnicity.100 As Wanda's common Spanish surnames (both maiden and married) and her lapse into Spanish on the 911 recording indicated, she was ethnically Mexican-American and Hispanic—as well as racially white—just as Carlos DeLuna was.101 The prosecutors' decision to seek a death sentence for the murder of Wanda Vargas Lopez—a Mexican-American victim—actually disproved Anderson's claim.

Anderson evidently didn't consult anyone in Corpus about Wanda's Mexican-American heritage. He probably was making the same claim in his other cases at the time and may have decided not to investigate and risk losing the slender hook the word "white" in the autopsy gave him to fish the claim into DeLuna's case.102

* * * * *

See Autopsy Findings of Wanda Lopez, Joseph Rupp, Nueces County Medical Examiner (Feb. 5, 1983) ("The body is that of a well developed, well nourished, adult white female, measuring 63' in length, weighing an estimated 170 pounds, and appearing the recorded age of 24 years.") (emphasis added);

see Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. Jan. 22, 1987) at 6 (acknowledging that the autopsy report does not "recognize a separate category for race in terms of Hispanic"—in other words that it refers to race and has no categorization by ethnicity);

infra note 156 (discussing Wanda Lopez's death certificate which reports her ethnicity as "Spanish origin . . . Mexican").

See infra note 156 (discussing Wanda Lopez's death certificate which reports her ethnicity as "Spanish origin . . . Mexican"); see also supra Chapter 13, note 154 and accompanying text (quoting the 911 call).

Cf. Pet'r's Resp. to Resp't's Mot. for Summ. J., DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. Jan. 22, 1987) at 6:

Petitioner's case provides an excellent example of [a situation where it is difficult to compile the statistics needed for a McClesky challenge] in that Respondent in his Motion for Summary Judgment states that the victim in Petitioner's case, Wanda Lopez, was Hispanic, and because of the hispanic [sic] surname could not be categorized as a member of the white race. Attached to Petitioner's Response to Respondent's Motion for Summary Judgment is the autopsy protocol and death certificate involved in this case, both of which list the race of the victim, Wanda Lopez, as white.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 19:59:44–20:02:58:

I know my brother couldn't commit such a crime that they say that he did. I know that dead in my heart that he couldn't commit such a crime. And I feel horrible that I could not help him in anyway. I did not understand any of the laws. I did not understand anything they were saying in the trial. And every person that I spoke to said he committed this crime, would not give him a chance. And I know he didn't commit this crime, I know he didn't. And even though we hired an attorney to help him. They even said he did this crime. They never gave him a chance.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 19:59:44–20:02:58.

Letter from Richard A. Anderson to Judge Dunham (Oct. 7, 1986) at 1;

Appl. for Writ of Habeas Corpus and Br.; Appl. for a Stay of Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) (sent by Richard Anderson to Judge Dunham and copied to John Grant Jones) at 6–7;

Appl. for Stay of Execution, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) at 1.

See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure (6th ed. 2011) at 2.1–2.4.

Appl. for Writ of Habeas Corpus and Br.; Appl. for a Stay of Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) (sent by Richard Anderson to Judge Dunham and copied to John Grant Jones) at 3–4:

Prosecutorial discretion in determining which cases in which to seek the death penalty is discriminatory based upon the race of the victim in violation of the defendant's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments, United States Constitution and Article 1, Sections 3, 3a, 10, 15, and 19. Petitioner is an hispanic [sic] male. The victim of the offense as listed by autopsy records is white female. Evidence will be adduced that will show prosecutions in Nueces County, Texas, in which the decision to seek the death penalty is invoked is based upon the race of the victim to a statistical certainty.

Appl. for Writ of Habeas Corpus and Br.; Appl. for a Stay of Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) (sent by Richard Anderson to Judge Dunham and copied to John Grant Jones) at 3–4.

Appl. for Writ of Habeas Corpus and Br.; Appl. for a Stay of Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) (sent by Richard Anderson to Judge Dunham and copied to John Grant Jones) at 3–4.

Appl. and Br. in Support of Stay of Execution, DeLuna v. McCotter, No. 86-cv–234 (5th Cir. Oct. 13, 1986) at 10 ("Recent studies of the death penalty practice by Texas prosecutors shows that of the 389 capital murder cases filed in the State of Texas where the victim was black or Mexican-American, only 2.3% resulted in a death sentence, whereas in 1501 capital cases filed in which the victim is caucasion [sic], 10.7% resulted in the death penalty.").

Appl. for Writ of Habeas Corpus and Br.; Appl. for a Stay of Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Oct. 7, 1986) at 3.

See McCleskey v. Kemp, 481 U.S. 279, 299 (1987) (rejecting such claims).

See, e.g., infra notes 155–156 and accompanying text.

Chapter 15
Page: 7 of 29