HRLR
Los Tocayos Carlos
Chapter 16
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All Chapter 16 Footnotes

In deciding whether to spare a man's life, most governors look for evidence of what lawyers like to call "actual innocence"130—not legal reasons why the verdict wasn't fully reliable, but facts to show that the condemned man didn't commit the crime.131 The courts have already decided the legal reasons repeatedly. For a governor considering whether to stick his own neck way out and give a convicted killer a break, there's no percentage in second-guessing the judges.132 For the governor, it comes down to a simpler question of justice and truth—did the man do it?

Kristen Weaver didn't have any good answers for the governor on that question. He hadn't done his own investigation, and the records from DeLuna's trial and appeals gave him nothing to go on.133 Sure, Carlos said he was innocent, and Rose had pleaded with Weaver about that. But the only thing they had was a dubious name, "Carlos Hernandez," which everyone from the prosecutor and jury to Federal District Judge Head had rejected as DeLuna's shameless invention.134 Weaver felt he had to concede, as he told the Governor's counsel, that DeLuna's was a "case where guilt was clear and obvious."135

With no other leg to stand on, Weaver urged the Governor to do exactly what the Governor had said he would not do: second-guess the courts. Fresh off losses in five successive courts, Weaver argued the Penry issue again, urging Rider Strong to advise the Governor that the courts were all wrong.136 The Texas statute had kept the jurors in DeLuna's case from giving proper weight to "mitigation." Fresh off five victories, the state's attorney, Bill Zapalac, made his same arguments as well. DeLuna didn't have a Penry issue because his lawyers didn't present any mitigating evidence that a jury could have been confused about.137 Johnny Paul Penry's lawyers, Zapalac reminded the Governor's aide, had presented substantial evidence that he was mentally defective.138 Carlos DeLuna's lawyers had presented none.139

After listening to both sides, Strong said that he had already gone over the case with the Governor earlier that evening and had taken the phone call from Weaver armed with the Governor's decision:140 Because "we find that there are no new issues of fact or law that have not had an opportunity to be resolved in the appellate courts or the trial courts," Strong announced, "the Governor has indicated that he will not substitute his opinion for that of the appellate courts of this country. . . . I have been empowered by the Governor to tell you that he would deny the reprieve."141

Weaver phoned Carlos to give him the news, which he remembers Carlos accepting calmly with a "thank you."142 Before and afterwards, Weaver always found a way to save his death row clients.143 Carlos, the one exception, just "fell through the crack," he said.144

When Weaver heard from the investigators a decade and a half later that Carlos had twice been given a chance to plead guilty to avoid a death sentence and had twice turned down the offer, citing his innocence, the lawyer was surprised. He'd never heard about that before. "It just breaks your heart," he said.145

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Rose was shocked when she heard that the Supreme Court and Governor Clements had rejected Carlos's pleas. "We thought for sure he would get out of this because [of] our faith," she told the investigators tearfully.146 "I'm not angry with God anymore," she continued, now fifteen years later, but for a long time it had shaken her faith.147

After getting the bad news, Rose asked to see Carlos a second time, late in the afternoon. Earlier she had decided to view the execution if it came to that, but now she realized she wouldn't be able to watch Carlos die.148 She wanted to see Carlos one last time and make her real goodbyes.

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See, e.g., Schlup v. Delo, 513 U.S. 298, 327 (1995) (discussing "actual innocence" standard allowing a prisoner who can show that "a constitutional violation [in his case] has probably resulted in the conviction of one who is actually innocent" to seek habeas corpus relief in federal court even though his or his lawyer's procedural miscues would other deprive him of the right to judicial review and relief).

See Holdings of the Texas State Archives, Transcript of Conference Call Re: Clemency for Carlos DeLuna Between Ryder Strong, Advisor to Governor William Clements, Jr., Kristen Weaver, Lawyer for Carlos DeLuna, and William Zapalac, lawyer for the State of Texas, (Dec. 6, 1989) at 7 (noting that the Governor was interested in "the facts underlying the offense in 1983"; "What we [clemency officials] look for, and what the Governor has instructed me to look for are issues which have not had a fair opportunity for litigation and discussion. . . [T]he Governor has indicated that he will not substitute his opinion for that of the appellate courts of this country.");

George W. Bush, A Charge to Keep 141 (1999) ("In every case [in which he was asked to grant executive clemency to a death row inmate], I would ask: Is there any doubt about this individual's guilt or innocence?"); Gov. Rick Perry Issues One Pardon for Innocence, Office of the Governor Rick Perry (Dec. 20, 2006), http://governor.state.tx.us/news/press-release/2320/ ("I believe that a full pardon for innocence must be supported by strong evidence, such as forensic DNA tests"); see also Alyson Dinsmore, Clemency in Capital Cases: The Need to Ensure Meaningful Review, 49 UCLA L. Rev. 1825, 1826–27 (2002) ("To help justify its decision to [forbear creating a constitutional bar to execution based solely on] . . . claims of innocence, the [Supreme] Court relied on [executive] clemency. It emphasized the ability of the Texas governor, upon the recommendation of a majority of the parole board, to stop the execution if [the defendant] was indeed innocent. . . . [T]he Court lauded clemency as the historical 'fail safe' in our criminal justice system."); Austin Sarat & Nasser Hussain, On Lawful Lawlessness: George Ryan, Executive Clemency, and the Rhetoric of Sparing Life, 56 Stan. L. Rev. 1307, 1310 (2004):

During the 1990s, from one to three death row inmates were granted clemency every year in the entire nation—compared to approximately sixty to eighty executions each year. This is a dramatic shift from several decades ago, when governors granted clemency in 20% to 25% of the death penalty cases they reviewed. In Florida, one of the pillars of the "death belt," governors commuted 23% of death sentences between 1924 and 1966, yet no Florida death penalty sentences were commuted in the 1990s. Rejecting appeals from the Pope, Mother Teresa, televangelist Pat Robertson, former prosecutors, and even judges and jurors in death cases, governors now reserve their clemency power for "unusual" cases in which someone clearly has been unfairly convicted.

See Holdings of the Texas State Archives, Transcript of Conference Call Re: Clemency for Carlos DeLuna Between Ryder Strong, Advisor to Governor William Clements, Jr., Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, and William Zapalac, lawyer for the State of Texas, (Dec. 6, 1989) at 6 (reporting Governor Clements' clemency criteria: "What we look for, and what the Governor has instructed me to look for are issues which have not had a fair opportunity for litigation and discussion. . . [T]he Governor has indicated that he will not substitute his opinion for that of the appellate courts of this country.").

See supra Chapter 13, notes 221–231 and accompanying text; supra Chapter 15, notes 63–67, 107–110, 140–142, 160–167, 188–192, 228, and accompanying text.

See supra Chapter 15, notes 63–67, 107–110, 140–142, 160–167, 188–192, 228 and accompanying text.

See Holdings of the Texas State Archives, Transcript of Conference Call Re: Clemency for Carlos DeLuna Between Ryder Strong, Advisor to Governor William Clements, Jr., Kristen Weaver, Lawyer for Carlos DeLuna, and William Zapalac, Lawyer for the State of Texas, (Dec. 6, 1989) at 5 ("In a case where guilt was clear and obvious, [DeLuna's trial lawyers] made no effort to investigate or present anything at the punishment phase of the trial.").

Holdings of the Texas State Archives, Transcript of Conference Call Re: Clemency for Carlos DeLuna Between Ryder Strong, Advisor to Governor William Clements, Jr., Kristen Weaver, Lawyer for Carlos DeLuna, and William Zapalac, lawyer for the State of Texas, (Dec. 6, 1989) at 2:

That's the precise point that was recognized in Penry, and the Supreme Court reversed that case, saying that, in the absence of a charge on mitigating evidence, the right to present mitigating evidence is illusory at best. . . . The 5th Circuit, rather than addressing the issues, held that there was no mitigating evidence available. That holding is demonstrably false. First of all, the court said that the demonstrated history of drug and alcohol abuse was irrelevant because it did not substantially impair the defendant's mental capacity. Mitigating is usually defined in Webster's as simply making less serious. The issue here is whether the jury was given proper instructions, able to properly decide whether death was an appropriate moral response to the facts. . . .

See Holdings of the Texas State Archives, Transcript of Conference Call Re: Clemency for Carlos DeLuna Between Ryder Strong, Advisor to Governor William Clements, Jr., Kristen Weaver, Lawyer for Carlos DeLuna, and William Zapalac, lawyer for the State of Texas, (Dec. 6, 1989) at 1 ("As I told Bill [Zapalac, lawyer for the state] before, we know the legal issuers were substantially identical because I plagiarized at length from them, so we know they are the exact same legal issues, but we were not given any response by the court save and except one paragraph. . . . We are at a loss to understand how the same issues, raised in two different courts [in the Supreme Court in Penry's case and in the Court of Appeals in DeLuna's case], can be treated so disparately.").

Cf. Holdings of the Texas State Archives, Transcript of Conference Call Re: Clemency for Carlos DeLuna Between Ryder Strong, Advisor to Governor William Clements, Jr., Kristen Weaver, Lawyer for Carlos DeLuna, and William Zapalac, lawyer for the State of Texas, (Dec. 6, 1989) at 7 ("[T]he Governor has indicated that he will not substitute his opinion for that of the appellate courts of this country.").

Holdings of the Texas State Archives, Transcript of Conference Call Re: Clemency for Carlos DeLuna Between Ryder Strong, Advisor to Governor William Clements, Jr., Kristen Weaver, Lawyer for Carlos DeLuna, and William Zapalac, lawyer for the State of Texas, (Dec. 6, 1989) at 4 (responding to Weaver by arguing that the difference between [the] cases [he cited] and DeLuna's was that [in the cases Weaver cited] "there was mitigating evidence introduced in both. . . trial[s]. . . And what the courts are saying is that, if you introduce no evidence, then you have no right to make an as applied challenge to the statute because, as applied to you, you can't claim the statute did not allow for consideration of mitigating evidence that wasn't introduced.").

Holdings of the Texas State Archives, Transcript of Conference Call Re: Clemency for Carlos DeLuna Between Ryder Strong, Advisor to Governor William Clements, Jr., Kristen Weaver, Lawyer for Carlos DeLuna, and William Zapalac, lawyer for the State of Texas, (Dec. 6, 1989)

Holdings of the Texas State Archives, Transcript of Conference Call Re: Clemency for Carlos DeLuna Between Ryder Strong, Advisor to Governor William Clements, Jr., Kristen Weaver, Lawyer for Carlos DeLuna, and William Zapalac, lawyer for the State of Texas, (Dec. 6, 1989)

Holdings of the Texas State Archives, Transcript of Conference Call Re: Clemency for Carlos DeLuna Between Ryder Strong, Advisor to Governor William Clements, Jr., Kristen Weaver, Lawyer for Carlos DeLuna, and William Zapalac, lawyer for the State of Texas, (Dec. 6, 1989) at 7–8:

I have listened to it this evening, and I will tell you this. That earlier this evening, I have briefed the Governor fully on this issue. Not only about the facts underlying the offense in 1983, but also the appellate process, as well as the state review. And reviewed with him the major legal issues involved and the one specifically, Chris [i.e., Kristen Weaver], that you have talked about in terms of review, and whether or not there is a Penry issue. . . . Based on all of that, the Governor has indicated that he will not substitute his opinion for that of the appellate courts of the country. And that, at this point, I have been empowered by the Governor to tell you that he would deny the reprieve based on the information that you have presented to me at this juncture during the evening. . . . [A]t this time, we find that there are no new issues of fact or law that have not had an opportunity to be resolved in the appellate courts or the trial courts, and we would deny the reprieve at this time.

See supra note 140.

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:49:47–02:50:16 ("I talked to him [Carlos DeLuna] on the phone briefly to tell him it had all been turned down. He thanked me and that was it. No emotion, no outburst. Just, 'You did the best you could, thank you.' Very matter-of-fact.").

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:50:22–02:51:32 ("As I said, it's the only capital case I've ever been involved in where the guy got executed.").

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:50:22–02:51:32 ("I think he got what was a typical capital trial in Texas of the day, where there wasn't much emphasis on anything except getting him convicted and getting a death sentence. I have no reason to believe anybody was acting in bad faith anywhere along the line. I think he fell through the crack. If he'd been a little earlier or a little later in the process, he probably would have gotten some relief.").

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:52:04–02:52:20 (reporting Weaver's response when he was informed that Carlos DeLuna, citing his innocence, had turned down two offers by the prosecutor to forgo the death penalty if DeLuna would plead guilty to murdering Wanda Lopez: "I wasn't aware of that, but I have had clients refuse to take plea bargains. It just breaks your heart, but that happens.").

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:11:45–21:14:27:

We all went to go see Carlos [on the day set for his execution]. Actually, I believe it's called the Walls. That's where they take you. The first time he was scheduled to be executed [in 1986], he was still in Huntsville [sic—the Ellis Unit outside Huntsville], inside the Death Row, he was never taken to the Walls. And he was able to receive his stay, which was a very happy moment. Second time that he was scheduled to be executed, he was taken to the Walls. We never went to [the Ellis Unit], we actually were told to go to the Walls. And I believe that's known as where you go to these smaller cells—I think there's only two of them, or three—and that's when they're getting ready to execute you. That's your time. . . . [W]hen you go to the Walls, that's it. The chances of you getting out of there are very thin, knowing now what I know, it's very slim, getting out of there. That time, we didn't think that Carlos would be executed. We thought for sure he would get out of this, because as far as our faith. I'm saying that not having the faith and not trusting God, because I'm not angry with God anymore. But going through it again, just thinking about it, it was very painful seeing him. He was very thin than his normal weight, very, very thin. I would think Carlos, it's as thin as I've ever seen him. I've seen him maybe 125 pounds, very thin. He was very quiet, very peaceful, more peaceful than the ones that were not in that situation. He was nervous, as I could see in his face, he was nervous. And I thought, for sure, for sure, he was going to get out of it. Deep in my heart, I believed God's going to get him out of this. And I told him that.

See supra note 146.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 25, 2005) at 21:18:30–21:20:34 ("I could not go in that chamber and watch my brother be killed. I couldn't. I couldn't do it. I couldn't do it even though the other family members wanted to do that. I just couldn't do it. I just couldn't watch him be executed.").

Chapter 16
Page: 8 of 16