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Los Tocayos Carlos
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1.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:38:49–23:40:45:

A. I was working at a warehouse, and I got my cousin in. She knew somebody else that wanted to work. We talked to the owner, so it was Mary Conejo who came and applied and worked there with us. I can't remember how long it was down the road that she had asked me to write to Carlos DeLuna, her brother-in-law. I told her I would, yes, I didn't have a problem with it. Because he was in prison, on Death Row, at the time. I know the DeLunas through Mary Conejo, because I worked with her. Every once in a while I stopped by the house and some of her relatives would be there and I would meet them.

Q. Who is Mary Conejo married to?

A. Mary Conejo is married to Danny Conejo, which is Carlos DeLuna's [half] brother.

Q. And what other members of the siblings did you get to know at the time?

A. I got to know Manuel, his brother, which I had a relationship with. I knew more of his family through Manuel. I knew [Carlos's half-sister] Ton[i]. I was introduced to [half-sister] Vicki. Rose, I had already known through the writings with Carlos.

Peso Chavez's Notes on Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row (Aug. 18, 2004) at 1 ("In the . . . 80's Ms. Esquivel worked with Mary Conejo, Carlos DeLuna's sister-in-law and was aware that Carlos was on death row. She became a pen pal and the letter writing began. Over the years hundreds of letters were written—two years ago Ms. Esquivel discarded them").

2.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:38:49–23:40:45.

3.

See Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:32:57–23:33:20 ("I had a box, I'd say about this wide, like this, and about this tall. And they were filled with letters from him. As far as measurements, I really can't tell you how big a box it was. Q. What happened to that box? A. I finally got rid of it, all the letters. I'm not sure if it was because I was mad at his [Carlos's] brother [Manuel DeLuna]. I probably decided it was time to move on.");

Peso Chavez's Notes on Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna (Aug. 18, 2004) at 1.

4.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005), at 23:32:57–23:33:20;

Peso Chavez's Notes on Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna (Aug. 18, 2004) at 1.

5.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:32:24–23:32:34, 23:38:17–23:39:00 ("I believe I may have visited him [on death row] about three or four times"; "He was well-mannered. He was really nice. I know you hear that [they are] all nice guys. They are really not nice. Carlos, he was. He was a gentleman. I don't think he could have done it.").

6.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:41:58–23:43:15 ("When I asked him if he did kill . . . I asked Carlos DeLuna if he did kill the girl, and . . . he said no.");

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:39:00–23:40:25:

Q. [Asking Esquivel to confirm a statement in notes an investigator made during an earlier interview, which the investigator read to her:] "In the early 1980s, Ms. Esquivel worked with Mary Conejo, Carlos DeLuna's sister-in-law, and was aware that Carlos was on Death Row. She became a pen pal, and the letter writing began. Over the years, hundreds of letters were written. Some years ago, Ms. Esquivel discarded them. Between the letter writing and several personal visits, Ms. Equivel was of the opinion that Carlos DeLuna did not kill the person he was convicted of. She bases this opinion on a number of factors, including statements Carlos made to her. She stated"—and this is a quotation —"'Carlos never liked talking about what had happened. He would rather look to the future. But he told me on numerous occasions that he did not kill the woman, and that it was another Carlos, I think Hernandez. He said he was not involved in any way. When he told me this, I believed him. It was the way he looked at me when he told me. He sounded sincere and truthful. The only other thing he told me was that he ran when he saw the cops and they found him hiding under a car.'" Is that an accurate statement of yours?

A. Yes.

7.

See supra note 6.

8.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:39:00–23:40:25.

9.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:38:17–23:39:00 ("I believed him [Carlos DeLuna] when he told me he didn't do it. He sounded sincere and he was sincere about it. He wasn't the type that would. He was well-mannered. He was really nice. I know you hear that [they are] all nice guys. They are really not nice. Carlos, he was. He was a gentleman. I don't think he could have done it.").

10.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:30:03–23:30:45, 23:33:20–23:33:51 (describing her relationship with Manuel and her anger at him when they broke up);

see Peso Chavez's Notes on Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna (Aug. 18, 2004) at 1 ("Ms. Esquivel lives at the above address with her mother and father and her only child Bridgette (11) whose father is Manuel DeLuna. Bridget has never met her father in person and has only communicated with him by phone or through letters.").

11.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:38:17–23:39:00 ("I believed him [Carlos DeLuna] when he told me he didn't do it. He sounded sincere and he was sincere about it. He wasn't the type that would. He was well-mannered. He was really nice. I know you hear that [they are] all nice guys. They are really not nice. Carlos, he was. He was a gentleman. I don't think he could have done it.").

12.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:45:40–23:50:34:

A. [Carlos DeLuna] fought up until his death. Like I said, they didn't listen to him. He gave enough information, he thought, Carlos DeLuna thought, but it just wasn't there, it wasn't there for him.

Q. Reflecting back on it if you would, Rosie, if you would. Just ask and answer for yourself, why is it that Carlos DeLuna couldn't get the help he needed or get the facts out, the truth out. Why was it, in your view, that he was executed? What happened, what broke down or didn't work?

A. It's hard to say what happened. There's a lot of things that happened in this case. Maybe money, maybe not enough money. Maybe people just didn't want to listen to someone, to a youthful troublemaker that was in a wrong place at the wrong time and felt like he did it. Not willing to give him the benefit of the doubt. He's just another troublemaker out of the way. They didn't want to listen to him at all. But he fought, Carlos fought all the way to the end. He maintained his innocence all the way to the end. Most killers don't. . . . But Carlos wasn't sorry for anything that he's done. Because he didn't do it. He didn't believe he did it. He believed he did not do it. And I believe he didn't do it. I believe that this other Carlos Hernandez did. And they just didn't want to listen to him. He said it numerous times. I don't know if he was telling the right people, or his lawyers didn't do what they could for him. I don't know. He really didn't mention . . . He did mention that his lawyers were doing this hab—

Q. Habeas corpus.

A. Habeas corpus. I don't know what that is. But that he was doing that, his lawyers, Carlos DeLuna's lawyers were doing that. And I know that he did tell me, "They just don't want to listen. I tell them this. I give them all the information. They just don't want to listen."

Q. What did he tell them?

A. He gave up the name. He gave up the fact that Carlos Hernandez was the one that went into the store. He had nothing to do with this crime. He only ran because he, you know, he just got out of prison. He was on probation. He didn't want anything to happen to him.

13.

See supra note 12.

14.

See supra note 12.

15.

See supra note 12.

16.

Peso Chavez's Notes on Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna (Aug. 18, 2004) at 2 ("She summed up the interview by saying, 'He fought the way he could fight. Sometimes he just wanted to give up. They just would not listen to him when he told them it was someone else.'").

17.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:36:35–23:37:45:

I was surprised [to learn about Carlos DeLuna's December 7, 1989 execution date]. I knew that his last appeal, he had told me it didn't work out for him. I got the call from Rose [Rhoton]. I didn't know the actual date that he was going to get executed. But when I got a phone call from Rose, she told me that Carlos was up for execution that night. They were hoping for a stay of his execution. He said he didn't want to call me, he didn't want to talk to me or anything like that, because he was afraid. When I talked to Rose that night, I think I prayed. I prayed for him, up until I guess I heard that he had been executed. I was sad. I didn't think it would happen.

18.

Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:36:35–23:37:45.

19.

Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna (June 30, 1988):

I am sure you heard the federal court in corpus Christi rule against me on my appeal that means I well be going back so they can set another date of execution. I have a good chance of being put to death this time around because its getting to a point where the courts just don't want to hear our appeals any more on Death row. . . . I sometimes sit here at nights and I cry to myself and I wonder how could I have ever let some stupid thing like this happen because of a friend who did it and I kept my mouth shut about it all. But I don't blame any one but my self and I accept that, that is why I well accept If the state of Texas decides to execute me. I want you to rember that no matter what happen I will never forget All of you'll and I will always love all of you'll. They might be able to kill me but they can't kill love or memories. always keep that In mind.

See also Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna, in Garland, Texas (Feb. 27, 2005) at 01:01:50–01:11:04 (quoting Carlos DeLuna's June 30, 1988 letter);

supra Chapter 15, note 204 and accompanying text.

20.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:47:20–20:50:10:

Q. What is your judgment about your brother's [religious] convictions at the end of his life?

A. Carlos, not just because he was in jail, because he started saying, "I got saved, I believe in God," and this and this and that. At the end, Carlos was peaceful. He was very peaceful at the end. He knew that he was forgiven. He knew that.

Q. Do you think he also knew that, although he had done bad things, he'd put his family through a lot?

A. Oh, yeah. He even told me, "I want you to know that I'm so sorry for all the things that I did to cause all this agony, all this hurt. And to see you here, visiting me in prison, in Death Row. All this shame." "[Indicating Rose's response to Carlos's statements:] Don't worry about it. It's no big deal. I love you. I know you didn't commit this crime." At the end, Carlos was very— He said, "Whatever happens, happens. But I did not commit this crime. I want you to know that." I told him, "Oh, I know that." I just did not know how to help him. I didn't know. I didn't know what to do. And he said, "I'm ok with it. I'm ok, it's ok, I'm ok. Should I be executed, it's ok, don't worry, I'm ok. Maybe this is the way it's going to be for all the things that I did in the past. Maybe this is just my destiny."

Q. You say he was peaceful at the end. I'm struck by that because Reverend Pickett said he was peaceful.

A. Very peaceful.

Q. Reverend Pickett thought that maybe his sense of what he had done wrong, but also what he had not done wrong, may have contributed to that peacefulness. That he knew where he stood, even if the state of Texas or everybody else did not. How do you feel about that?

A. I believe Carlos, in his heart, accepted that he was going to be executed. That it was going to be ok, because of all the hurt that he caused, all the hurt that he did—not on this crime that he was convicted for—but all the other things that he did, would even things out. I believe that he thought that, in his mind. And he was very peaceful about it. What hurt him the most was having me watch him, for me to be on the other side, seeing him going through this and being executed. He knew it was going to devastate me. He knew that. And I believe that I know, in his heart, that that's what bothered him the most, is to watch the ones that cared for him go through so much pain.

21.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:25:12–03:26:03 (paraphrasing Carlos DeLuna's statements in a letter Boudrie received from Carlos DeLuna shortly after his execution: "I, at times, wonder if we, as humans, do really have any control with our own destiny. I don't think so. I believe the cards are already laid out on the table and all we do is play along.");

see also Kathy Fair, Murderer DeLuna is Put to Death, Hous. Chron., Dec. 7, 1989 at 33A ("A self-described black sheep who believed his death sentence was part of some pre-ordained blueprint today became the fourth person executed in Texas this year.").

22.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:47:20–20:50:10:

Q. What is your judgment about your brother's [religious] convictions at the end of his life?

A. Carlos, not just because he was in jail, because he started saying, "I got saved, I believe in God," and this and this and that. At the end, Carlos was peaceful. He was very peaceful at the end. He knew that he was forgiven. He knew that.

Q. Do you think he also knew that, although he had done bad things, he'd put his family through a lot?

A. Oh, yeah. He even told me, "I want you to know that I'm so sorry for all the things that I did to cause all this agony, all this hurt. And to see you here, visiting me in prison, in Death Row. All this shame." "[Indicating Rose's response to Carlos's statements:] Don't worry about it. It's no big deal. I love you. I know you didn't commit this crime." At the end, Carlos was very— He said, "Whatever happens, happens. But I did not commit this crime. I want you to know that." I told him, "Oh, I know that." I just did not know how to help him. I didn't know. I didn't know what to do. And he said, "I'm ok with it. I'm ok, it's ok, I'm ok. Should I be executed, it's ok, don't worry, I'm ok. Maybe this is the way it's going to be for all the things that I did in the past. Maybe this is just my destiny."

Q. You say he was peaceful at the end. I'm struck by that because Reverend Pickett said he was peaceful.

A. Very peaceful.

Q. Reverend Pickett thought that maybe his sense of what he had done wrong, but also what he had not done wrong, may have contributed to that peacefulness. That he knew where he stood, even if the state of Texas or everybody else did not. How do you feel about that?

A. I believe Carlos, in his heart, accepted that he was going to be executed. That it was going to be ok, because of all the hurt that he caused, all the hurt that he did—not on this crime that he was convicted for—but all the other things that he did, would even things out. I believe that he thought that, in his mind. And he was very peaceful about it. What hurt him the most was having me watch him, for me to be on the other side, seeing him going through this and being executed. He knew it was going to devastate me. He knew that. And I believe that I know, in his heart, that that's what bothered him the most, is to watch the ones that cared for him go through so much pain.

23.

See supra note 22.

24.

See, e.g., Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna, (June 30, 1988) at 3 ("I sometimes sit here at night and I cry to myself and I wonder how could I have ever let some stupid thing like this happen because of a friend who did it and I kept my mouth shut about it all.");

see Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:47:20–20:50:10.

25.

Letter from Carlos DeLuna to Vicky Gutierrez, Half-Sister of Carlos DeLuna, (June 30, 1988) at 3.

26.

See Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:47:20–20:50:10.

27.

See Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:47:20–20:50:10.

28.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:21:30–21:26:27:

Q. There was a letter that was written. Carlos wrote a letter at the very, very end of his hours, he wrote a letter . . . . Would you tell us about that letter? What the contents were and what became of the letter?

A. I wish I would have been able to save that letter. When I opened that letter, Carlos was apologizing for all the hurt that he caused. And I know what he meant by that. He was hurting for us, because he knew that I would be hurting for him. He knew that. And he was just so sorry for all the pain that he caused to his family members, and to his mom, to our mother. He knew that.

Q. Did he say anything in that letter that indicated he was guilty of the crime for which he was—

A. No. He never stated that on the letter. He just said he was sorry for causing us pain. He was sorry.

Q. What happened to that letter?

A. When we moved, I had asked my sister, that lives in Garland. I had some boxes, all Carlos's stuff, that was sent back to me. And that was the hardest thing, receiving your brother's things. They sent them in boxes. All his belongings in a box. I placed all those things in a storage box, because I was very hurt. When we moved I asked my sister if we could store some stuff in her garage and she said yes. When I did ask for all the stuff back, which was six, seven years later, all the stuff got destroyed. Which I was very devastated, because Carlos's things were there. All his belongings, his watch that he wore all the time, his books that he read, his Bible, were all destroyed. And all the letters that we corresponded back and forth was all destroyed in that box.

Q. Do you know how it got destroyed?

A. My sister said it was damage by all the rain, things that her storage got all messed up. Not only did my things get destroyed but her things got destroyed, too.

29.

See supra note 28.

30.

See supra Chapter 15, notes 287–289 and accompanying text.

31.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:21:15–03:34:45:

[reading from a letter Carlos DeLuna wrote to Karen Boudrie on December 5, 1989] On December 5th, 1989, he writes, Carlos DeLuna writes, "Dear Karen, I thought I would write you another letter today. I hope you don't get bored with my letters. I usually write a whole lot. Well, today is Tuesday, and I still haven't heard anything [from the court of appeals]. It's 10:32 p.m., and I'm trying to see if they would allow me to make a phone call to call some of my family members. I was just thinking last night, I had set my alarm clock to get up early. That way I could try and talk to some people I needed to talk to. The alarm clock went off, and you know, for the first time since I've been here I never have ever slept right through the alarm. I woke everybody else up in the same tank with me, and my neighbor kept banging on my bars 'till I woke up. I can't believe I am sleeping too good with all this happening. . . . But you know what, Karen? I am not scared like I was yesterday. I feel like this peace came from somewhere and entered my body, and I feel very peacefully about everything."

32.

See supra note 31.

33.

See supra note 31.

34.

See supra note 31.

35.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:10:44, 21:42:50–21:44:42 (noting that he "watched ninety-five die in the execution chamber");

Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 4 ("Reverend Pickett's grandfather was murdered. His father was a policeman. The Reverend was raised with the idea of 'kill 'em,' and actually did support the death penalty for many years. After ministering at 95 executions, he no longer supports the death penalty, and has become an outspoken advocate against it.").

36.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38–21:47:25:

In those days we were executing at midnight. They'd bring them in early in the morning. My responsibility, according to the warden, was to be there in the death house, which is in the northeast corner of the unit, which is only about 50 feet from the house where I lived. My responsibility was to be there when he walked in. I was to be the face that he [the condemned prisoner] saw outside the guards . . . . His charge to me was, and these are his words, "to seduce their emotions so they won't fight getting out of the cell or getting up on the table." . . . And all but one of those ninety-five [executed on his watch] talked to me. Of course there were fifty or sixty more that came in and got stays. But as far as going to the table, I did that ninety-five times.

37.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:02:26:

The only thing I knew about Carlos [DeLuna when he arrived at the death house] was an article that Kathy [Fair] had written in the Houston Chronicle. I think it was probably November the 30th, or about a week before he came in. He came in on December the 6th. I remember that because it was the anniversary of the first execution. Charlie Brooks came in on December 6th and was executed on December 7th, 1982. And here, number thirty-three comes in on the same day. I read in that article, Kathy's article, some details about the case. I had questions before I ever met Carlos about Carlos's guilt or innocence.

See also Executions in the U.S. from 1976–1986, Death Penalty Information Center http://www.deathpenaltyinfo.org/executions-us-1976-1986 (last visited Mar. 23, 2012) (listing Texas executions since it reinstated the death penalty and began executions anew in 1982, among which, Carlos DeLuna's was the thirty-third).

38.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:42:50–21:44:53:

Two and a half years . . . after I started to work there [at the Walls Unit] as my ministry . . . they scheduled an execution. Of course, there hadn't been any executions in Texas since 1964. So none of us knew what it was going to be like. None of us knew what we were going to do. None of us knew what was going to take place. But it was started on December the 7th of 1982, when we did our first execution by lethal injection. First one in the world . . . . As it developed after that, after the first one [execution by lethal injection] was done, with Charlie Brooks, it began. We did a couple, then we laid off for a while. Texas [later] became real active in doing executions.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:02:26:

The only thing I knew about Carlos [DeLuna when he arrived at the death house] was an article that Kathy [Fair] had written in the Houston Chronicle. I think it was probably November the 30th, or about a week before he came in. He came in on December the 6th. I remember that because it was the anniversary of the first execution. Charlie Brooks came in on December 6th and was executed on December 7th, 1982. And here, number thirty-three comes in on the same day. I read in that article, Kathy's article, some details about the case. I had questions before I ever met Carlos about Carlos's guilt or innocence.

39.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:44:53–21:45:38, 21:42:50–21:44:53, 22:02:26;

see Executions in the U.S. from 1976–1986, Death Penalty Information Center http://www.deathpenaltyinfo.org/executions-us-1976-1986 (last visited Mar. 23, 2011) (Charles Brooks was the first person in the U.S. executed by lethal injection).

40.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:42:26–21:43:39:

Then I came to Huntsville [from south Texas] to work with another church. After I completed all I felt God had intended me to do there, I resigned. I gave them six months notice so they could find another preacher. I didn't have a job. Everybody told me I was crazy for resigning from that job because I had four kids getting ready to go to college. One was in high school, three were in college. And the director of the prison system, Mr. Estelle, who was a member of my church, asked me to come work at the prison for a year, just for a year, until my youngest daughter got out of high school. 'Cause he knew my family real well. So I agreed to work for a year, and I went to the prison and worked sixteen years. Never filled out my paperwork, but I've worked there for sixteen years at the Walls unit. I went there primarily to develop a program for twenty-two hundred inmates and minister to the hospital, which at the time was the only hospital in prison, and the mental ward, which was the only mental part of the penal system in Texas. That was my pastoral area.

41.

See supra note 40.

42.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:42:50 ("I never went to Death Row. There's a difference that a lot of people don't understand. Death Row was 16 miles out in the country [at the Ellis Unit], the death house was in town. By law, in Texas, they had to be executed in Huntsville, in the town. And the death house was on my unit [the Walls unit].").

43.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:01:48–22:02:06 ("When the [execution] program was set up, Mr. Estelle [the warden] said, 'I want the living chaplains [chaplains for the living on Death Row] out at Ellis, where it [Death Row] was . . . They'd take care of them all during their term [in prison]. And I want to have one person, who knows what they're doing, to be the death chaplain. I was called the death chaplain. I didn't particularly like that term but—Carlton Stowers wrote a couple of articles called 'Death Angel.' It was in the Dallas newspapers and Houston newspapers. And I would go with that [name].").

44.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:42:50 ("I never went to Death Row. There's a difference that a lot of people don't understand. Death Row was 16 miles out in the country [at the Ellis Unit], the death house was in town. By law, in Texas, they had to be executed in Huntsville, in the town. And the death house was on my unit [the Walls unit].");

see Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 7 ("Reverend Pickett was present at the executions of 95 men. He never visited with the prisoners on death row, but once they were at the place of execution [in the Walls Unit in Huntsville], they had his total attention.").

45.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:42:50–21:44:42 ("Death Row was 16 miles out in the country, the death house was in town. By law, in Texas, they had to be executed in Huntsville, in the town.").

46.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:01:48–22:02:06 ("When the [execution] program was set up, Mr. Estelle [the warden] said, 'I want the living chaplains [chaplains for the living on death row] out at Ellis, where it [Death Row] was . . . They'd take care of them all during their term [in prison]. And I want to have one person, who knows what they're doing, to be the death chaplain. I was called the death chaplain. I didn't particularly like that term but—Carlton Stowers wrote a couple of articles called 'Death Angel.' It was in the Dallas newspapers and Houston newspapers. And I would go with that [name].");

see Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:11:45–21:16:38:

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] 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 [Ellis], 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.

47.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:01:48–22:02:06.

48.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:42:50–21:44:42 ("I went to the prison and worked sixteen years. Never filled out my paperwork, but I've worked there for sixteen years at the Walls unit. I went there primarily to develop a program for twenty-two hundred inmates and minister to the hospital . . . .").

49.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:42:50–21:44:42, 21:44:53–21:45:38 ("Two and a half years . . . after I started to work there [at the Walls Unit] as my ministry, . . . they scheduled an execution. Of course, there hadn't been any executions in Texas since 1964. So none of us knew what it was going to be like. None of us knew what we were going to do. None of us knew what was going to take place. But it was started on December the 7th of 1982, when we did our first execution by lethal injection. First one in the world."; "We were the first in the United States to do any lethal injection executions. There was no book to go by, no manual to go by. Nobody had ever executed a person this way. So nobody, including the doctors, could tell us what to expect. It was just a fearful situation all the time, because we never knew.").

50.

See supra note 49.

51.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38–21:47:25:

In those days we were executing at midnight. They'd bring them in early in the morning. My responsibility, according to the warden, was to be there in the death house, which is in the northeast corner of the unit, which is only about 50 feet from the house where I lived. My responsibility was to be there when he walked in. I was to be the face that he [the condemned prisoner] saw outside the guards. That was important. Because every inmate distrusts guards. They have to. They're taught that. They're abused by them. Not all guards are abusive, but some are. So it was my responsibility to be there. His charge to me was, and these are his words, "to seduce their emotions so they won't fight getting out of the cell or getting up on the table." And that was primarily what I was supposed to do. I could be a pastor to them, I could be a minister to them, I could work with them whatever their religious presence was. But he told every one of them, the first warden did, and all the other ones that followed him that I worked with, which was about six. They would tell them, "I suggest you talk to him because he's a good counselor. If you don't want to talk about religion, that's fine. But whatever you do, just talk to him." And all but one of those ninety-five talked to me. Of course there were fifty or sixty more that came in and got stays. But as far as going to the table, I did that ninety-five times.

See James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain, (July 11, 2004) at 1 ("Whole goal of Rev P[ickett]'s work [was] that no one would fight the guards before the execution; none of them ever did fight on his watch.").

52.

See Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38–21:47:25 ("In those days we were executing at midnight. They'd bring them in early in the morning. My responsibility, according to the warden, was to be there in the death house, which is in the northeast corner of the unit, which is only about 50 feet from the house where I lived.").

53.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38–21:47:25.

54.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38–21:47:25.

55.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38–21:47:25.

56.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38–21:47:25;

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:58:38 ("[T]he warden gave me freedom to do whatever I felt like would keep them calm.");

see Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:58:38–22:00:27:

Fortunately, we never had a problem. Nobody ever fought coming out of the cell when I was there. Nobody ever fought getting up on the table. I understand last year they had at least three [in Texas who fought]. It's terrible, to watch somebody fight. We practiced this in 1982. One time the warden brought in a person and he just surprised us all by kicking him. People got hurt. As I wrote to the people in New Jersey and New York just this past week, it would be terrible to have somebody fight coming out of the cell. But the warden gave me freedom to do whatever I felt like would keep them calm. There were a lot of people who threatened to fight, or some who threatened to kill the chaplain, because they knew the system, and I had to go through that. But I never had one of them. And Carlos came in quiet, very, very scared.

57.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38–21:47:25.

58.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22:

A lot of inmates who died have good people. They might have done something wrong, they might have been accused of something wrong, but their families were innocent. So one of my responsibilities was to get the families in. But before Carlos ever let his family in, he told me—I was there when he came in . . . . We had lots of time to talk. . . . And there were certain responsibilities I had to do. Every execution day was set aside just for that, it didn't have anything to do with my work in the unit. But there were reports to give to the warden, reports to give to the executioners, and there was a time when I would go visit with the family.

59.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22 ("He began to hang on to me. And I mean that not critically, but he didn't want me to leave. He wouldn't let me leave. And there were certain responsibilities I had to do. Every execution day was set aside just for that, it didn't have anything to do with my work in the unit. But there were reports to give to the warden, reports to give to the executioners, and there was a time when I would go visit with the family.").

60.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22;

see Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:26:53–22:27:54 ("His family visited in the daytime, and then I went over to the hospitality house to visit them, and they decided they . . . didn't want to witness [the execution].").

On the family's decision whether to view the execution, see infra note 235 and accompanying text. On the confessions Pickett heard, see infra notes 97, 105, 170–77 and accompanying text.

61.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain 171–72 (2002):

In the Death House there was one small window. When it was open, it allowed in the fresh air. The rays of sun streaming through it, I believed, helped brighten the dungeonlike atmosphere. Once an inmate settling in for his daylong wait, his attention would inevitably be drawn to the window . . ., his mood growing darker.

I finally realized why. The small peephold to the outside world offered no comfort, only a grim reminder that time was slipping away. As shadows lengthened and the daylight gradually faded to dusk, then dark, I would sense an increasing apprehension that I could only attribute to thoughts of the events that lay ahead. . . . But finally it occurred to me that the window, through which the inmate could mark the slow approach of the last night of his life, created a level of anxiety that no watch or clock could ever cause.

That it took me so long to determine the cause angered me. My job—"seduce the prisoner's emotions, calm him, help him in whatever way you can"—had been undermined by my own inability to recognize an elementary problem. Resolving it was easy. I sought and was granted permission to have the panes of the window painted black . . . .

62.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 171–72.

63.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 171–72.

64.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 172–73:

At times, I had seen fear cause a cold sweat to appear on the faces of correctional officers who were clearly unsettled by their duty. Adopting a whistling-through-the-graveyard attitude, they would mask their own apprehension with constant joking. In a misguided attempt to lighten the mood, they would only anger the prisoner. On the other hand, if they appeared in a somber mood, it too rubbed off quickly. It was critical that a proper balance be struck, that everyone avoid any attitude or mannerism that might set an inmate off.

It was those prisoners who were mentally retarded who were the most difficult to read. Despite public assurances from the governor's office [of Texas, during the administrations of Governor George W. Bush and Rick Perry] and the White House that no one lacking the capacity to fully understand what was taking place was ever put to death, I beg to disagree, having spent time with many incompetent prisoners up to the moment of their executions.

65.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 173.

66.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 173.

67.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 174 ("Yet, on the night I spent with Penry, trying in vain to make him understand what would happen to him once we entered the death chamber, the Supreme Court intervened, providing him with a stay of execution.").

68.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 175; see supra Chapter 15, notes 254–259 and accompanying text.

69.

See supra Chapter 15, notes 256–259 and accompanying text.

70.

See infra notes 128–145 and accompanying text.

71.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 174, 175 ("[O]n the night I spent with Penry, trying in vain to make him understand what would happen to him once we entered the death chamber, the Supreme Court intervened, providing him with a stay of execution"; "On that . . . night, before the Supreme Court ruling saved him [Penry], the time for entering the death chamber was drawing near when I noticed that Penry, having finished his last meal, was idly thumbing through a comic book. As he studied the colorful pages, lost in a world of make-believe, he would occasionally laugh quietly to himself. Those innocent, childlike sounds chilled me.").

72.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 175.

73.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 175.

74.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 175–76. In fact, Carlos DeLuna dropped out in the eighth grade. See also James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain, (July 11, 2004), at 1 ("I got very involved in DeLuna case. Calls [Pickett] 'Daddy'—CDL [Carlos DeLuna] did this. . . . Re: DeLuna: To me, he was a child; he started it; he called me daddy.");

Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 2, 8 ("He said Carlos was so young, not mature at all, and had to live in fear. On the day Carlos was executed, he became younger and younger. He began to call Reverend Pickett 'Daddy,' and begged the Reverend not to leave him. Carlos also wanted Reverend Pickett to hold his hand at the end . . . . The Reverend stayed with Carlos, except when he had to go out and talk with the visitors"; "Carlos DeLuna was a good person. He was like a baby. He was not at all like a typical prisoner condemned to death. He never really understood what was happening to him, or why he was there.") (emphasis in original).

75.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 176.

76.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 176. ("While the inmate of average or above-average intelligence was always focused, those with low I.Q.s seemed disoriented . . . . When the time came to describe the procedures that would occur inside the death chamber, most have an endless series of questions. But all DeLuna was concerned with was what pain he might feel when the needles were inserted into his arm.").

77.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 176.

78.

See supra notes 67–72 and accompanying text.

79.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 176 ("Upon his arrival at the Death House, he [Carlos DeLuna] demonstrated the characteristics that, since the Penry case, I'd so often prayed never to see again. Like several I had encountered before him, he had no real understanding of why he was there."); Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 2, 8 ("He said Carlos was so young, not mature at all, and had to live in fear. On the day Carlos was executed, he became younger and younger. He began to call Reverend Pickett "Daddy," and begged the Reverend not to leave him. Carlos also wanted Reverend Picket to hold his hand at the end . . . . The Reverend stayed with Carlos, except when he had to go out and talk with the visitors"; "Carlos DeLuna was a good person. He was like a baby. He was not at all like a typical prisoner condemned to death. He never really understood what was happening to him, or why he was there.") (emphasis in original);

see also Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:17:05–22:19:01 ("Ted Koppel . . . came to watch the execution of Mario Marquez, who was mentally retarded, who was very much, in my mind, like Carlos. Very much like him.").

80.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 176; see Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 4 ("Reverend Pickett said that Carlos was concerned about whether the execution by injection of drugs would hurt. Reverend Pickett told him he would be asleep in 7 to 12 seconds.").

81.

See supra note 80.

82.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 178 ("In the fifteen years I served as the Death House chaplain, I sought psychological help only twice. Both occasions came in the wake of Carlos DeLuna's death."); see James S. Liebman, Notes on Interview with Carroll Pickett, Texas Death House Chaplain, (July 11, 2004) at 1, 3 ("As tough as I had to be, the DeLuna case sent me to counseling."; "This one tore me to pieces. [Had to go] . . . to Dallas for therapy.");

Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 2 ("[Pickett] was profoundly affected by Carlos's execution [and] had to have counseling after Carlos was executed.").

83.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22 ("I'll never forget Carlos. Carlos . . . it was a long day. Even though he had a tremendous amount of visitors. And they were good people. A lot of inmates who died have good people.").

84.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38 ("In those days we were executing at midnight. They'd bring them in early in the morning.").

85.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:57:00–22:00:54:

There are those who are inmates, who are sent there, who either adjust to the system or adjust to the fact that they are in prison, for right or for wrong, for innocent or for evil, whatever. And they will go along with the rules, and they will be honest and they will be supportive and they will not be troublemakers. A convict, by our definition, is one who is a troublemaker, who doesn't like the rules, who has committed multiple felony crimes, who doesn't care how he acts on the unit, who doesn't care how many times he goes to lock-up . . . . We had people who were sent in to be executed who were convicts and we had some who were inmates. . . . And Carlos came in quiet, very, very scared. Because he was so young. He was basically a child. That's why I didn't mind him calling me "daddy," because he was just a child. He had a baby face. He had baby features, to me. And when I talked to him, and in the time I spent with him, I could tell by the way he treated his family, he was crying out for somebody to say, "I love you and I care, and I want you to listen to me."

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:58:38–22:00:27 ("But a convict is a person that you have a lot of trouble with. We had people who were sent in to be executed who were convicts and we had some who were inmates. And it was easy to determine within the first couple of hours after they got there whether they were going to be inmates or convicts.").

86.

Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:57:00–22:00:54.

87.

Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:57:00–22:00:54;

James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain, (July 11, 2004) at 3 ("CDL [Carlos DeLuna] was an inmate (anyone who was there for any reason but behaved themselves); but he was not a convict (does everything to break rules, get into fights, blackmail anyone . . . ). 'People who are innocent are all inmates.'").

88.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22:

I'll never forget Carlos. Carlos . . . it was a long day. Even though he had a tremendous amount of visitors. And they were good people. A lot of inmates who died have good people. They might have done something wrong, they might have been accused of something wrong, but their families were innocent. So one of my responsibilities was to get the families in. But before Carlos ever let his family in, he told me—I was there when he came in . . . . We had lots of time to talk. And I asked Carlos, since I was responsible for bringing in his visitors, who he wanted to see and how long he wanted to see them. And I explained to him the visitation times. And he was very, very cooperative. But he was very, very—I don't want to use the word immature or childish, but he was very simple. He began to hang on to me. And I mean that not critically, but he didn't want me to leave. He wouldn't let me leave. And there were certain responsibilities I had to do. Every execution day was set aside just for that, it didn't have anything to do with my work in the unit. But there were reports to give to the warden, reports to give to the executioners, and there was a time when I would go visit with the family.

89.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:57:00–22:00:54;

see James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain, (July 11, 2004) at 1 ("I got very involved in DeLuna case. Calls [Pickett] 'Daddy'—CDL [Carlos DeLuna] did this. . . . Re: DeLuna: To me, he was a child; he started it; he called me daddy.");

Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 2, 8 ("He said Carlos was so young, not mature at all, and had to live in fear. On the day Carlos was executed, he became younger and younger. He began to call Reverend Pickett 'Daddy,' and begged the Reverend not to leave him. Carlos also wanted Reverend Pickett to hold his hand at the end . . . . The Reverend stayed with Carlos, except when he had to go out and talk with the visitors"; "Carlos DeLuna was a good person. He was like a baby. He was not at all like a typical prisoner condemned to death. He never really understood what was happening to him, or why he was there.") (emphasis in original).

90.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:13:52–22:17:05:

All day long I was with a boy. He was a man by age but he was a boy. And he relied so much on me, and I don't mean that egotistically. But he asked me all types of questions. Every time the door would open, "What is that? What's going on?" Why the phone would ring, and all these type of things. And I would be honest with him. I told him I would do that. And I said, "I'm going to do anything you want, anything you want. But I will be truthful to you."

91.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22:

I'll never forget Carlos. Carlos . . . it was a long day. Even though he had a tremendous amount of visitors. And they were good people. A lot of inmates who died have good people. They might have done something wrong, they might have been accused of something wrong, but their families were innocent. So one of my responsibilities was to get the families in. But before Carlos ever let his family in, he told me—I was there when he came in . . . . We had lots of time to talk. And I asked Carlos, since I was responsible for bringing in his visitors, who he wanted to see and how long he wanted to see them. And I explained to him the visitation times. And he was very, very cooperative. But he was very, very—I don't want to use the word immature or childish, but he was very simple. He began to hang on to me. And I mean that not critically, but he didn't want me to leave. He wouldn't let me leave. And there were certain responsibilities I had to do. Every execution day was set aside just for that, it didn't have anything to do with my work in the unit. But there were reports to give to the warden, reports to give to the executioners, and there was a time when I would go visit with the family.

92.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:02:26–22:03:50 ("The only thing I knew about Carlos was an article that Kathy [Fair] had written in the Houston Chronicle. I think it was probably November the 30th, or about a week before he came in. He came in on December the 6th. I remember that because it was the anniversary of the first execution.");

see Kathy Fair, Each Tick of Clock Increases Terror of Condemned Killer, Houst. Chron., Nov. 30, 1989, at 34A (discussed supra Chapter 15, notes 287–288 and accompanying text).

93.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 175.

94.

Kathy Fair, Each Tick of Clock Increases Terror of Condemned Killer, Houst. Chron., Nov. 30, 1989, at 34A ("DeLuna testified at his trial that he ran from the service station after seeing another of his friends struggling with the victim . . . .").

95.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38, 22:03:50–22:10:44 ("The average convict will not stop a block away and hide underneath a truck. If they're going to run, you keep running and running and running. You get as far away from the scene as possible. . . . But Carlos wanted to talk about it, and we discussed those two issues: Why did you let her talk on the phone? And why did you stay on the truck? And he said, 'I didn't do it.' That's as clear as a bell to me. . . . And I believed him.")

96.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:03:50–22:05:50 ("I had those two things on my mind [when he talked to Carlos DeLuna] and I had that article [by Kathy Fair in the Houston Chronicle]. I had that article in my file. He brought that article up three times during the day. We discussed that article.").

97.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:03:50–22:07:39:

It was our program, our philosophy, that I will ask questions and guide him [the inmate] and talk to him. Whatever he wanted to confess to or talk about, that was fine. We'll talk about anything in the world. But I had those two things on my mind [when he talked to Carlos DeLuna] and I had that article [by Kathy Fair in the Houston Chronicle]. I had that article in my file. He brought that article up three times during the day. We discussed that article. The most vivid and most remembering part about executions begins after ten o'clock at night. Because at ten o'clock at night, I would move the guards out of the way, and I would explain to them [the condemned inmates] exactly, in detail, what was going to take place. From what was going to happen, what telephone they would hear. You hear two telephone rings. And it's a traumatic process. I would explain to them how many straps would be put down. How, at 12 o'clock, I would wait till I got a call from the governor or a call from the attorney general. I would say, "It's time. Now, I want you to follow me in there. And don't fight. Because I'll have some guys with me. You'll be two feet behind me and just follow me." So I explained all this to Carlos. He told me, he said, "I'm not"— And I asked him, did he want to tell [me] the truth. He said, "Sure." I did them all that way. . . . "Go ahead, I want to know the whole story." . . . And many of the convicts, between 10:15 and midnight, confessed to a lot of things for which they were not convicted. I began in the beginning saying some of them are just bragging. I began to check them out with friends of mine, without telling them. They were true. There was a lot of confession. At ten o'clock to midnight is a very traumatic situation. I went to my doctor, and he told me, "One of these days you're going to pay for all this, because you're taking in a lot of stuff you can't get out." And he was a cardiologist in Victoria. And I may be, right now, in that position at this very minute [given heart trouble Pickett was suffering at the time of the interview].

98.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:03:50–22:07:39.

99.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22 ("So one of my responsibilities was to get the families in. . . . Every execution day was set aside just for that, it didn't have anything to do with my work in the unit. But there were reports to give to the warden, reports to give to the executioners, and there was a time when I would go visit with the family.");

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:26:53–22:28:55:

His [Carlos DeLuna's] family visited in the daytime, and then I went over to the hospitality house to visit them, and they decided they . . . didn't want to witness [the execution]. And he wanted to talk to me about it, and to tell them goodbye, and the family wanted to tell him goodbye. . . . I got permission for him to call. . . . So he made that call to his family, and called to the one sister who couldn't come, and called . . . [TV reporter Karen Boudrie] in—I think it's Cincinnati, Ohio, somewhere up there, I may have to look it up.

100.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:49:22–21:50:40:

Then he told me about his—he never met his daddy. And I'm using the term "daddy" because that's what he used. He never met his daddy. . . . He was one of many children. During the day, before 12 o'clock—he didn't eat lunch—but before the day he wanted to know if he could call me "daddy," if it would hurt my feelings. Because he had never had anybody stick by him who was in a fatherly position. He didn't know his real father, he was abused by his step-father. I always made it my place to do what I could to make them comfortable. And I felt like if he called me "daddy," that would be fine. It sort of shook me up real bad. I've got four children and three step-children and fourteen grandchildren, and I know what "daddy" means. "Daddy" is a little bit beyond just "father." But he was willing to discuss anything after he got permission to call me "daddy."

See also Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:13:52–22:15:40 ("All day long I was with a boy. He was a man by age but he was a boy. And he relied so much on me, and I don't mean that egotistically. But he asked me all types of questions. Every time the door would open, 'What is that? What's going on?' Why the phone would ring, and all these type of things. And I would be honest with him. I told him I would do that. And I said, 'I'm going to do anything you want, anything you want. But I will be truthful to you.'").

101.

See supra note 100; see also James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain, (July 11, 2004) at 1 ("I got very involved in DeLuna case. Calls [Pickett] 'Daddy'—CDL [Carlos DeLuna] did this. . . . Re: DeLuna: To me, he was a child; he started it; he called me daddy.");

Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 2, 8 ("He said Carlos was so young, not mature at all, and had to live in fear. On the day Carlos was executed, he became younger and younger. He began to call Reverend Pickett 'Daddy,' and begged the Reverend not to leave him. Carlos also wanted Reverend Pickett to hold his hand at the end . . . . The Reverend stayed with Carlos, except when he had to go out and talk with the visitors"; "Carlos DeLuna was a good person. He was like a baby. He was not at all like a typical prisoner condemned to death. He never really understood what was happening to him, or why he was there.") (emphasis in original).

102.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:49:22–21:50:40, 22:13:52–22:15:40 (quoted supra note 100).

103.

See supra notes 100–101.

104.

See supra notes 100–101.

105.

See supra notes 100–101.

106.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22:

I'll never forget Carlos. Carlos . . . it was a long day. Even though he had a tremendous amount of visitors. And they were good people. A lot of inmates who died have good people. They might have done something wrong, they might have been accused of something wrong, but their families were innocent. So one of my responsibilities was to get the families in. But before Carlos ever let his family in, he told me—I was there when he came in . . . . We had lots of time to talk. And I asked Carlos, since I was responsible for bringing in his visitors, who he wanted to see and how long he wanted to see them. And I explained to him the visitation times. And he was very, very cooperative. But he was very, very—I don't want to use the word immature or childish, but he was very simple. He began to hang on to me. And I mean that not critically, but he didn't want me to leave. He wouldn't let me leave. And there were certain responsibilities I had to do. Every execution day was set aside just for that, it didn't have anything to do with my work in the unit. But there were reports to give to the warden, reports to give to the executioners, and there was a time when I would go visit with the family.

107.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:26:53–22:27:34 ("We'd made calls that night. His family visited in the daytime, and then I went over to the hospitality house to visit them, and they decided they . . . didn't want to witness [the execution]. And he wanted to talk to me about it, and to tell them goodbye, and the family wanted to tell him goodbye.")

see James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain, (July 11, 2004) at 1 ("[Carlos's family] [d]idn't see execution; time of visit with CDL [Carlos DeLuna] is indicated: Rosemary & Brad, 10–12[;] Daniel Conejo & Maria Conejo 12–2 [;] Maria Ar[re]dando & Vicky Gutierrez 2–3[;] Rosemary & Brad [again.] Called [i.e., telephoned, members of] his family 8:37–8:50 at hospitality house. Toni Pena—wanted to make a call to her. He did call her 9:04–9:26 p.m. Karen Boutard [sic—Boudrie] in Cincinnati, OH. Called her last.").

108.

See James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 1;

infra notes 160–167 and accompanying text.

109.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain in Huntsville, Texas (Feb. 26, 2005) at 22:27:34–22:28:55 ("So he made that call to his family, and called to the one sister who couldn't come, and called . . . [TV reporter Karen Boudrie] in—I think it's Cincinnati, Ohio, somewhere up there, I may have to look it up. And then after that it was all just me and him.");

James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 1.

110.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22.

111.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22;

see Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:26:53–22:27:34 ("We'd made calls that night. His family visited in the daytime, and then I went over to the hospitality house to visit them, and they decided they . . . didn't want to witness [the execution]. And he wanted to talk to me about it, and to tell them goodbye, and the family wanted to tell him goodbye.").

112.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain in Huntsville, Texas (Feb. 26, 2005) at 21:47:35–21:49:22.

113.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain in Huntsville, Texas (Feb. 26, 2005) at 22:26:53–22:27:34 ("His family visited in the daytime, and then I went over to the hospitality house to visit them, and they decided they . . . didn't want to witness [the execution]. And he wanted to talk to me about it, and to tell them goodbye, and the family wanted to tell him goodbye. And we worked out a deal over at the hospitality house. Bob Norris was super. That house wasn't built for that purpose but we turned it into that.");

James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 1 ("[Carlos's family] [d]idn't see execution; time of visit with CDL [Carlos DeLuna] is indicated: Rosemary & Brad, 10–12[;] Daniel Conejo & Maria Conejo12–2 [;] Maria Arendando & Vickey Gutierrez 2–3[;] Rosemary & Brad [again.] Called [i.e., telephoned, members of] his family 8:37–8:50 at hospitality house.").

114.

See supra note 113.

115.

See Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 1 ("Having already spoken with Peso Chavez, Reverend Pickett was prepared to talk to me about Carlos DeLuna. He opened a file and told me he saves everything. The file contained handwritten notes regarding Carlos DeLuna's last hours. The notes discussed Carlos's chosen visitors, his phone calls, his choice of spiritual advisor, his will, and the execution itself.").

116.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain in Huntsville, Texas (Feb. 26, 2005) at 22:26:53–22:27:34 ("His family visited in the daytime, and then I went over to the hospitality house to visit them, and they decided they . . . didn't want to witness [the execution]. And he wanted to talk to me about it, and to tell them goodbye, and the family wanted to tell him goodbye. And we worked out a deal over at the hospitality house. Bob Norris was super. That house wasn't built for that purpose but we turned it into that.");

James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 1 ("[Carlos's family] [d]idn't see execution; time of visit with CDL [Carlos DeLuna] is indicated: Rosemary & Brad, 10–12[;] Daniel Conejo & Maria Conejo12–2 [;] Maria Arendando & Vickey Gutierrez 2–3[;] Rosemary & Brad [again.] Called [i.e., telephoned, members of] his family 8:37–8:50 at hospitality house.").

117.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:11:45–21:16:38:

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 [there] 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.

118.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:11:45–21:16:38.

119.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:11:45–21:16:38.

120.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:11:45–21:16:38.

121.

See supra Chapter 15, notes 243–249 and accompanying text.

122.

See Texas Bd. of Pardon & Paroles, Clemency: What is Clemency?, at http://www.tdcj.state.tx.us/bpp/exec_clem/exec_clem.html#WHAT_IS_EXECUTIVE_CLEMENCY (last visited Nov. 20, 2011); supra Chapter 15, notes 303–304 and accompanying text; infra notes 128–45 and accompanying text.

123.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:11:45–21:16:38:

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 [there] 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.

124.

See supra note 123.

125.

See supra note 123.

126.

See supra note 123.

127.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:11:45–21:16:38.

see Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 4 ("The . . . Supreme Court denied Carlos a stay of execution at 4:53 p.m.");

Kathy Fair, DeLuna Waits for Execution in '83 Murder, Hous. Chron., Dec. 7, 1989, at 36A ("Carlos DeLuna's fate was sealed about 4:15 pm Wednesday when the U.S. Supreme Court refused to grant the 10th grade [sic—8th grade] dropout a stay."; "News of the high court's decision appeared to upset the inmate, said Charles Brown, spokesman for the prison system. 'I'm human. Of course I'm afraid to die,' he said.").

128.

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna in Dallas, Texas (Feb. 28, 2005) at 02:49:00 (describing his actions on December 6, 1989: "Basically it was a flurry of filings and denials, then more filings and more denials. And finally, when we'd run out of everything else, phone calls to [the Governor's advisor] Rider [Strong] trying to explain all of the different reasons I thought he shouldn't be executed, and then waiting for Rider to call back. That was basically the process.").

Weaver was in Dallas, approximately, 175 miles from Huntsville where the execution was scheduled to take place at midnight. See also 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.

129.

Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:49:00–2:49:41.

130.

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).

131.

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.

132.

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.").

133.

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.

134.

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

135.

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.").

136.

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.").

137.

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.").

138.

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)

139.

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)

140.

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.

141.

See supra note 140.

142.

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.").

143.

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.").

144.

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.").

145.

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.").

146.

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.

147.

See supra note 146.

148.

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.").

149.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:49:22–21:50:40 ("During the day, before 12 o'clock—he didn't eat lunch . . . .").

150.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:15:40–22:16:44 ("I told him I would do whatever you want. About six o'clock I said, 'Are you sure you don't want anything?' He said, 'Can you get me something?' I said, 'Just tell me what you want.' He said, 'Strawberries and ice cream and a shake.' So I called the [inaudible] department and they brought him strawberries and ice cream and a shake.").

151.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:16:44–22:19:01:

Now the book, (reaches over to table, picks up book, camera zooms out to watch) the classic book [published by the Texas Department of Corrections] that was put out about what happens on Texas Death Row, what they eat and the last meal, says he ate nothing. I sat right there by him, and he ate strawberries and ice cream and drank the shake, and we talked . . . . Even Carlos's final words are not accurate in that book. In fact, they're not accurate in any book, or in a magazine. I would tell the convicts and the inmates, "The only way they're going to quote exactly what you say is if you say nothing." And this is true of many people. What Carlos said—I'm five inches from his leg. I would hear what he said, I would—We practiced, ok? He and I practiced at 11:30 what he wanted to say. So I knew what he wanted to say. Some of them wanted me to help them do it, and I couldn't do it. I was not allowed to. But I know that there was a person writing down, exactly, his words. . . . But the ones in this book, and the ones that were on TV. And I'm not knocking reporters. The media just doesn't—They're down there in shock. Ted Koppel is considered one of the greatest people in the world in the media. And he watched an execution. He came to watch the execution of Mario Marquez, who was mentally retarded, who was very much, in my mind, like Carlos. Very much like him. And I was interviewed by Ted Koppel. And I told him, "If you witness this, you're not going to hear or report exactly what he says." He said, "What do you mean?" I said, "Because your emotions are going to be involved." And he went on his TV program and quoted what he [Mario Marquez] said, and it was totally wrong. I met with him the next day and I told him. I said, "this is what Mario said." The same way with Carlos [DeLuna's last words].

Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 3 ("Reverend Pickett pointed to a book on his desk, Texas Death Row, which is a catalog of persons executed in Texas. The book was open at the page showing Carlos DeLuna. Most of the information in the book about last meals was not true, Reverend Pickett stated. Most prisoners do not want a last meal, and those that do get whatever the kitchen is serving for dinner that night. If a prisoner were to ask for lobster or a t-bone steak, they would not get it. Reverend Pickett was very glad that peaches and vanilla ice cream were on hand that night for Carlos.").

152.

See supra note 151.

153.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 176 ("Despite the popular myth, most condemned men who order an elaborate last meal only pick at it.").

154.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain (2002) at 176 ("The mentally challenged always display a voracious appetite.").

155.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:13:52–22:17:05 ("A. Now the book [published by the Texas Department of Corrections], (reaches over to table, picks up book, camera zooms out to watch) the classic book that was put out about what happens on Texas Death Row, what they eat and the last meal, says he ate nothing. I sat right there by him, and he ate strawberries and ice cream and drank the shake, and we talked. Q. Where that book says people had steak and lobster? A. That's not true.");

Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 3 ("Most of the information in the book about last meals was not true, Reverend Pickett stated. Most prisoners do not want a last meal, and those that do get whatever the kitchen is serving for dinner that night. If a prisoner were to ask for lobster or a t-bone steak, they would not get it.").

156.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:15:40–22:16:44 ("I told him I would do whatever you want. About six o'clock I said, 'Are you sure you don't want anything?' He said, 'Can you get me something?' I said, 'Just tell me what you want.' He said, 'Strawberries and ice cream and a shake.' So I called the [inaudible] department and they brought him strawberries and ice cream and a shake.").

157.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:15:40–22:16:44.

158.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:15:40–22:16:44.

159.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:13:52–22:17:05 ("I sat there right by him, and he ate strawberries and ice cream and drank the shake, and we talked.").

160.

See James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 1 ("[Carlos's family] [d]idn't see execution; time of visit with CDL [Carlos DeLuna] is indicated: Rosemary & Brad, 10–12[;] Daniel Conejo & Maria Conejo12–2 [;] Maria Arendando & Vickey Gutierrez 2–3[;] Rosemary & Brad [again.] Called [i.e., telephoned, members of] his family 8:37–8:50 at hospitality house. Toni Pena—wanted to make a call to her. He did call her 9:04–9:26 p.m. Karen Boutard [sic—Boudrie] in Cincinnati, OH. Called her last.").

161.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:27:34–22:28:55 ("So he made that call to his family, and called to the one sister who couldn't come . . . .");

Susan Montez's Notes on Interview with Toni Peña, Half-Sister of Carlos DeLuna (July 20, 2004) at 4 ("Toni told me about the phone call from Carlos the night of his execution. . . . Carlos told Toni he loved her. At this point, tears welled up in her eyes and rolled down her cheeks. It was a very painful and sad moment.");

James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 1 ("[Carlos's family] [d]idn't see execution; time of visit with CDL [Carlos DeLuna] is indicated: . . . . Toni Pena—[Carlos DeLuna] wanted to make a call to her. He did call her 9:04–9:26 p.m.").

162.

James S. Liebman's Notes on Bruce Whitman's Interview with Manuel DeLuna, Brother of Carlos DeLuna (Aug. 11, 2004) at 1 ("Night of Execution: MDL [Manuel DeLuna] has 1 hour conversation with CDL [Carlos DeLuna]; discussed a lot of things; CDL told him 'don't blame God, if I am killed and I am innocent.' Manuel says to CDL 'Tell me the truth.' (MDL says to us: 'I can tell when my brother is lying.') 'Did you kill the lady at the gas station?' CDL said 'I did not. You [referring to Manuel] know him. You know the man that did kill her.'");

Bruce Whitman's Notes on Interview with Manuel DeLuna, Brother of Carlos DeLuna (Aug. 11, 2004) at 1;

see Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:42:06–22:43:10 ("Visitors had to stop at five o'clock. We could still make telephone calls, if they were ok. If they were good inmates, not convicts. If they'd been bad all day long, I wouldn't make a phone call for them. I just wouldn't even offer it. And if I didn't offer it, they didn't know they had the right if they wanted to make a phone call.").

163.

Bruce Whitman's Notes on Interview with Manuel DeLuna, Brother of Carlos DeLuna (Aug. 11, 2004) at 1–2:

Mdl [Manuel DeLuna] was doing time in prison at the "Old Clemens Unit" doc [Department of Corrections], tx [Texas]: "Between 1987 to 1989 or 90 I ran into a young kid from cc [Corpus Christ], tx his name was Carlos [sic—Manuel] Ortiz. I was walking down the hallway at the Old Clemens Unit and ran into him in the classification he was just coming in from the chain and he asked me if my name was mdl? I said yes and he asked to meet me at the rec. yard. I met Carlos Ortiz in the rec. yard and he started talking to me about Carlos Hernandez. He said he met ch [Carlos Hernandez] at a park in cc next to Rojo and Painter street. . . . Ortiz said that night at the park he and some other guys were drinking beer and ch started bragging about all his killings and he mentioned the killing that Carlos De Luna was doing time in the pen for a capital murder and the he took his (ch's) wrap. I asked [Ortiz] why he didn't tell someone about this and he said, your brother was all ready accused, what could I do? We ended up becoming friends I really don't know what happen to the guy. We talked more at other times about my brothers case and [Ortiz] said that when ch was bragging in the park that he actually did kill this Wanda Lopez and that my brother took the [rap] for this . . . . Ortiz did go on to say that ch bragged about several killings under his belt, not one but several he didn't name them or where but he did tell me that ch was a very bad, and I mean bad, person and he actually liked to hurt women and kill them."

See supra Chapter 8, notes 98–107 and accompanying text.

164.

James S. Liebman's Notes on Bruce Whitman's Interview with Manuel DeLuna, Brother of Carlos DeLuna (Aug. 11, 2004) at 1 ("Night of Execution: MDL [Manuel DeLuna] has 1 hour conversation with CDL [Carlos DeLuna]; discussed a lot of things; CDL told him 'don't blame God, if I am killed and I am innocent.' Manuel says to CDL 'Tell me the truth.' (MDL says to us: 'I can tell when my brother is lying.') 'Did you kill the lady at the gas station?' CDL said 'I did not. You [referring to Manuel] know him. You know the man that did kill her.'").

165.

James S. Liebman's Notes on Bruce Whitman's Interview with Manuel DeLuna, Brother of Carlos DeLuna (Aug. 11, 2004) at 1;

see Bruce Whitman's Notes on Interview with Manuel DeLuna, Brother of Carlos DeLuna (Aug. 11, 2004) at 1 ("[T]he brothers talked about life, death, family the conversation was almost over and mld [Manuel DeLuna] asked cld [Carlos DeLuna], 'if he did the crime? I just wanted to know if he did kill that girl?").

166.

See Bruce Whitman's Notes on Interview with Manuel DeLuna, Brother of Carlos DeLuna (Aug. 11, 2004) at 1 ("His response to me was, no I didn't. He said it was Carlos Hernandez . . . .").

167.

See James S. Liebman's Notes on Bruce Whitman's Interview with Manuel DeLuna, Brother of Carlos DeLuna (Aug. 11, 2004) at 1 ("(MDL [Manuel DeLuna] says to us: 'I can always tell when my brother is lying.')").

168.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:03:50–22:07:39:

It was our program, our philosophy, that I will ask questions and guide [the inmate] and talk to him. Whatever he wanted to confess to or talk about, that was fine. We'll talk about anything in the world . . . . The most vivid and most remembering part about executions begins after ten o'clock at night. Because at ten o'clock at night, I would move the guards out of the way, and I would explain to them [the condemned inmates] exactly, in detail, what was going to take place. From what was going to happen, what telephone they would hear. You hear two telephone rings. And it's a traumatic process. I would explain to them how many straps would be put down. How, at 12 o'clock, I would wait till I got a call from the governor or a call from the attorney general. I would say, "It's time. Now, I want you to follow me in there. And don't fight. Because I'll have some guys with me. You'll be two feet behind me and just follow me." So I explained all this to Carlos.

169.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:03:50–22:07:39.

170.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:05:50–22:07:39 ("So I explained it all to him. And then [Carlos DeLuna] said, 'Can we talk privately?' So we began to talk privately. And many of the convicts, between 10:15 and midnight, confessed to a lot of things for which they were not convicted. I began in the beginning saying some of them are just bragging. I began to check them out with friends of mine, without telling them. They were true. There was a lot of confession. At ten o'clock to midnight is a very traumatic situation.").

See generally Carlton Stowers, Final Passages: The Reverend Carroll Pickett Leaves a Grim 15-Year Legacy of Very Personal Ministry, Houst. Press, Nov. 2, 2000, available at http://www.houstonpress.com/2000-11-02/news/final-passages/:

For 15 years it was Pickett's job to help strangers—men with evil histories of unspeakable violence and lost hope—through the final hours of their lives. He would talk with them, sing with them and grant their wishes, however trivial, if within reason. They would pray together and read from the Bible. Often they would speak of the grim circumstances that led to their final meeting.

The inmates were men convicted of capital crimes, waiting to receive lethal injections ordered by the state of Texas. Pickett was the prison chaplain, there to serve as their final confidant, the last friendly face they would ever see.

On one occasion, an inmate's tearful description of the unspeakably torturous crime he had committed was so graphic that a nearby prison guard became sick to his stomach . . . .

During those final hours after all appeals had been exhausted, Pickett says, often a stark degree of honesty would haunt him for days: details of murders committed, confessions to additional crimes for which the inmates had never been convicted, tales of troubled lives that set their course to death row. "They were talking from somewhere deep inside, from years of carrying around the knowledge of crime and sin and immorality. They were heavy burdens most of us can't begin to imagine . . . ."

In the final hours before he was executed, [one inmate] admitted to the chaplain that Ignacio Cuevas was not even his real name. Instead, it was the name he had taken from a man he'd killed years earlier.

171.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:05:50–22:07:39.

172.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38–21:47:35:

My responsibility, according to the warden, was to be there in the death house, which is in the northeast corner of the unit, which is only about 50 feet from the house where I lived. My responsibility was to be there when he walked in. I was to be the face that he [the condemned prisoner] saw outside the guards. That was important. Because every inmate distrusts guards. They have to. They're taught that. They're abused by them. Not all guards are abusive, but some are. So it was my responsibility to be there. His charge to me was, and these are his words, "to seduce their emotions so they won't fight getting out of the cell or getting up on the table." And that was primarily what I was supposed to do. I could be a pastor to them, I could be a minister to them, I could work with them whatever their religious presence was. But he told every one of them, the first warden did, and all the other ones that followed him that I worked with, which was about six. They would tell them, "I suggest you talk to him because he's a good counselor. If you don't want to talk about religion, that's fine. But whatever you do, just talk to him." And all but one of those ninety-five talked to me. Of course there were fifty or sixty more that came in and got stays. But as far as going to the table, I did that ninety-five times.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:03:50–22:07:39:

It was our program, our philosophy, that I will ask questions and guide him [the inmate] and talk to him. Whatever he wanted to confess to or talk about, that was fine. We'll talk about anything in the world. But I had those two things on my mind [when he talked to Carlos DeLuna] and I had that article [by Kathy Fair in the Houston Chronicle]. I had that article in my file. He brought that article up three times during the day. We discussed that article. The most vivid and most remembering part about executions begins after ten o'clock at night. Because at ten o'clock at night, I would move the guards out of the way, and I would explain to them [the condemned inmates] exactly, in detail, what was going to take place. From what was going to happen, what telephone they would hear. You hear two telephone rings. And it's a traumatic process. I would explain to them how many straps would be put down. How, at 12 o'clock, I would wait till I got a call from the governor or a call from the attorney general. I would say, "It's time. Now, I want you to follow me in there. And don't fight. Because I'll have some guys with me. You'll be two feet behind me and just follow me." So I explained all this to Carlos. He told me, he said, "I'm not [going to fight]"—And I asked him, did he want me to tell him the truth. He said, "Sure." I did them all that way. . . .

173.

See supra notes 96–98, 105, 170–77 and accompanying text.

174.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38–22:05:50.

175.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38, 22:03:50–22:10:44:

It was our program, our philosophy, that I will ask questions and guide him [the inmate] and talk to him. Whatever he wanted to confess to or talk about, that was fine. We'll talk about anything in the world. But I had those two things on my mind [when he talked to Carlos DeLuna] and I had that article [by Kathy Fair in the Houston Chronicle]. I had that article in my file. He brought that article up three times during the day. We discussed that article. The most vivid and most remembering part about executions begins after ten o'clock at night. Because at ten o'clock at night, I would move the guards out of the way, and I would explain to them [the condemned inmates] exactly, in detail, what was going to take place. From what was going to happen, what telephone they would hear. You hear two telephone rings. And it's a traumatic process. I would explain to them how many straps would be put down. How, at 12 o'clock, I would wait till I got a call from the governor or a call from the attorney general. I would say, "It's time. Now, I want you to follow me in there. And don't fight. Because I'll have some guys with me. You'll be two feet behind me and just follow me." So I explained all this to Carlos. He told me, he said, "I'm not [going to fight]"—And I asked him, did he want me to tell him the truth. He said, "Sure." I did them all that way. . . . "Go ahead, I want to know the whole story." He said, "I'm not so much afraid of dying, it's how, and what's going to happen after that." So I explained it all to him. And then he said, "Can we talk privately?" So we began to talk privately. And many of the convicts, between 10:15 and midnight, confessed to a lot of things for which they were not convicted. I began in the beginning saying some of them are just bragging. I began to check them out with friends of mine, without telling them. They were true. There was a lot of confession. At ten o'clock to midnight is a very traumatic situation. I went to my doctor, and he told me, "One of these days you're going to pay for all this, because you're taking in a lot of stuff you can't get out." And he was a cardiologist in Victoria. And I may be, right now, in that position at this very minute [given heart trouble Pickett was suffering at the time of the interview]. But Carlos wanted to talk about it, and we discussed those two issues: Why did you let her talk on the phone? And why did you stay on the truck? And he said, "I didn't do it." That's as clear as a bell to me. . . . And I believed him.

176.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38, 22:03:50–22:10:44.

177.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38, 22:03:50–22:10:44.

178.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38, 22:03:50–22:10:44.

179.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:45:38, 22:03:50–22:10:44.

180.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:05:50.

181.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:05:50.

182.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:05:50;

see Kathy Fair, Executed Murderer Asks Forgiveness, Chaplain Says, Hous. Chron., Dec. 8, 1989, at 1 ("'He was very much afraid,' Pickett said. 'He was not afraid of dying; he was afraid of the unknown.'").

183.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain in Huntsville, Texas (Feb. 26, 2005) at 22:26:53–22:28:55:

Telephone rang at midnight. All the guards stayed away from the cell. He [Carlos DeLuna] didn't want to talk to anybody but me. And we had made that last telephone call—We'd made calls that night. His family visited in the daytime, and then I went over to the hospitality house to visit them, and they decided they . . . didn't want to witness [the execution]. And he wanted to talk to me about it, and to tell them goodbye, and the family wanted to tell him goodbye. And we worked out a deal over at the hospitality house. Bob Norris was super. That house wasn't built for that purpose but we turned it into that. But he called. I got permission for him to call. The warden always—he never asked me why he wanted to do all these things. So he made that call to his family, and called to the one sister who couldn't come, and called . . . [TV reporter Karen Boudrie] in—I think it's Cincinnati, Ohio, somewhere up there, I may have to look it up. And then after that it was all just me and him. He just wanted to talk. We'd talk about anything. He would ask me a question about what it's going to feel like, and I told him. I told him it's going to take—To my knowledge, it will take nine to twelve seconds for that first medication to go to work. And you'll be totally asleep, you won't feel another thing. And he said, "Will you be with me, daddy?" I said, "I'll be with right with you." He said, "Will you hold my hand?" I told him before we got in there, "There are only certain times I can hold your hand, only certain times." This was the only inmate—all of them asked me to maintain contact, or wipe their brow, or don't let anybody see sweat, things like that. But Carlos wanted me to hold his hand.

184.

See supra note 183.

185.

See supra note 183.

186.

See supra notes 172, 175, 183.

187.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:03:50–22:10:44 ("The average convict will not stop a block away and hide underneath a truck. If they're going to run, you keep running and running and running. You get as far away from the scene as possible. . . . But Carlos wanted to talk about it, and we discussed those two issues: Why did you let her talk on the phone? And why did you stay on the truck? And he said, 'I didn't do it.' That's as clear as a bell to me. . . . And I believed him.").

188.

See supra note 187.

189.

See supra note 187.

190.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:10:44–22:11:40:

In my opinion, having watched ninety-five die in the execution chamber—I watched hundreds that died—because we had the hospital. We had an intensive care. We had a Death Row in the hospital. The third floor, I had a hundred people that died over there from heart attacks, C.O.P.D., AIDS, cancer, you name it. And I went through this for sixteen years, listening to them on their last days and nights. I spent way too many hours, I suppose, listening to their last confession. But some of them I believed. And some of them I checked out, and they were innocent people. I fully believe Carlos DeLuna was an innocent man, and I will always believe that.

See Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:05:50–22:07:39:

And many of the convicts, between 10:15 and midnight, confessed to a lot of things for which they were not convicted. I began in the beginning saying some of them are just bragging. I began to check them out with friends of mine, without telling them. They were true. There was a lot of confession. At ten o'clock to midnight is a very traumatic situation. I went to my doctor, and he told me, "One of these days you're going to pay for all this, because you're taking in a lot of stuff you can't get out." And he was a cardiologist in Victoria. And I may be, right now, in that position at this very minute [given heart trouble Pickett was suffering at the time of the interview].

191.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:10:44–22:11:40.

192.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:10:44–22:11:40;

James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 3 ("Rev P[ickett]: 'I would honestly say from the bottom of my heart, he [Carlos DeLuna] was not capable of killing anyone. That is why it was so difficult to watch him die for that reason.'");

Susan Montez, Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 2 ("Reverend Pickett then said, 'He didn't do it, you know. He told me he was innocent, and I believed him.' I asked Reverend to confirm this, and he said, 'Yes. He couldn't have done it.'").

193.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:19:01–22:22:08 ("Carlos and I practiced what he was going to say. . . . Carlos never admitted to the crime. He did not apologize or ask forgiveness from the family of who was killed. His concern was for his family. He was concerned for the friends he had on Death Row. One of his last words, which are very, very important, 'Don't give up.' Because many of them are striving to prove their innocence.");

see also Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:17:05–22:19:01:

Even Carlos's final words are not accurate in that book [prepared by the Texas Department of Corrections]. In fact, they're not accurate in any book, or in a magazine. I would tell the convicts and the inmates, "The only way they're going to quote exactly what you say is if you say nothing." And this is true of many people. What Carlos said—I'm five inches from his leg. I would hear what he said, I would—We practiced, ok? He and I practiced at 11:30 what he wanted to say. So I knew what he wanted to say. Some of them wanted me to help them do it, and I couldn't do it. I was not allowed to. But I know that there was a person writing down, exactly, his words. . . . But the ones [last words] in this book, and the ones that were on TV [were not accurate].

194.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:26:53–22:28:55:

Telephone rang at midnight. All the guards stayed away from the cell. He [Carlos DeLuna] didn't want to talk to anybody but me. And we had made that last telephone call . . . We'd made calls that night. His family visited in the daytime, and then I went over to the hospitality house to visit them, and they decided they . . . didn't want to witness [the execution]. And he wanted to talk to me about it, and to tell them goodbye, and the family wanted to tell him goodbye. And we worked out a deal over at the hospitality house. Bob Norris was super. That house wasn't built for that purpose but we turned it into that. But he called. I got permission for him to call. The warden always . . . he never asked me why he wanted to do all these things. So he made that call to his family, and called to the one sister who couldn't come, and called . . . [TV reporter Karen Boudrie] in—I think it's Cincinnati, Ohio, somewhere up there, I may have to look it up. And then after that it was all just me and him. He just wanted to talk. We'd talk about anything. He would ask me a question about what it's going to feel like, and I told him. I told him it's going to take . . . . To my knowledge, it will take nine to twelve seconds for that first medication to go to work. And you'll be totally asleep, you won't feel another thing. And he said, "Will you be with me, daddy?" I said, "I'll be with right with you." He said, "Will you hold my hand?" I told him before we got in there, "There are only certain times I can hold your hand, only certain times." This was the only inmate . . . all of them asked me to maintain contact, or wipe their brow, or don't let anybody see sweat, things like that. But Carlos wanted me to hold his hand.

See James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 1 ("[T]ime of visit with CDL [Carlos DeLuna] is indicated: Rosemary & Brad, 10–12[;] Daniel Conejo & Maria Conejo12–2 [;] Maria Arendando & Vickey Gutierrez 2–3[;] Rosemary & Brad [again.] Called [i.e., telephoned, members of] his family 8:37–8:50 at hospitality house. Toni Pena—wanted to make a call to her. He did call her 9:04–9:26 p.m. Karen Boutard [sic—Boudrie] in Cincinnati, OH. Called her last.").

195.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:25:30–01:37:29 ("Imagine getting that phone call from him. Thinking, this man is about to die, why did you choose me as the last person to talk to aside from the people that, obviously, would be around there.");

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:49:39–01:50:59:

Q. Start with that last phone call. You say it came within a couple hours of his execution.

A. 10:50 p.m. [Texas time], which was—I was an hour ahead [in Ohio], and I remember him telling me, he said, "At one a.m. your time the process will begin." So he was an hour and ten minutes from midnight in Texas at that time. So it was just a little over an hour before his execution.

Q. Were his appeals over at that point?

A. Yes. He informed me that his last attempt had been denied . . . late that evening. He informed me that that was it, everything had been exhausted, there were going to be no further stays. He knew that this was it, there was nothing else.

196.

See supra Chapter 13, note 8 and accompanying text; supra Chapter 15, notes 311–312 and accompanying text.

197.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:25:30–01:37:29, 01:50:20–1:51:53:

A. I gave him the opportunity, ever the journalist, to say anything he wanted to say, to get it off his chest. If he wanted to admit that, after all this time, "Yeah, I did commit this crime." . . . I felt there were things he wanted to get off his chest, and he did. I wasn't family, I wasn't clergy, but I was more of an objective observer who he felt comfortable telling things to because I was objective, and I wasn't automatically dismissing everything he said as a typical inmate trying to save his butt at the last minute, or one who's found religion, like they all have.

See supra Chapter 13, note 8 and accompanying text; supra Chapter 15, notes 311–312 and accompanying text.

198.

See supra note 197.

199.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:30:50–01:31:35, 01:37:29–01:39:20:

Every time I talked to Carlos, and in every letter, he talked about how his life had gone astray but he always denied committing this crime. . . . He had always admitted other wrongs, the ways his life had gone astray, getting in with the wrong crowd. We talked about that a little bit in that last conversation as well. But he never admitted that one crime for which he was dying for. Again, what do you say to someone who's about to die? I'm not clergy. I don't profess to have some great wisdom. Just being someone that had been there and listened to him, I hoped I was somewhat comforting to him.

200.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:49:50–01:50:59:

Q. Start with that last phone call. You say it came within a couple hours of his execution.

A. 10:50 p.m. [Texas time], which was—I was an hour ahead [in Ohio], and I remember him telling me, he said, "At one a.m. your time the process will begin." So he was an hour and ten minutes from midnight in Texas at that time. So it was just a little over an hour before his execution.

Q. Were his appeals over at that point?

A. Yes. He informed me that his last attempt had been denied . . . late that evening. He informed me that that was it, everything had been exhausted, there were going to be no further stays. He knew that this was it, there was nothing else.

See Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:18:55 ("He [DeLuna] didn't go into it [his case] a lot [while his appeals were still going on]. He professed his innocence. He would not talk about Carlos Hernandez because of the appeals. He didn't want to say anything that would taint his appeal . . . . Nobody was really trying to find Carlos Hernandez for him, unfortunately. But Carlos really didn't want to get into that. He would not let me delve into who [committed the crime] . . . .").

201.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:25:30:

He had nothing to lose at this point. Maybe get it off his chest and tell one human being. He chose me to be last person to talk with—why wouldn't he tell me? I'm the person he supposedly trusted. Did he want to take it to his grave, or was he really telling the truth? I found it interesting that, given that situation, that if he was guilty, why wouldn't he just say so? Because of his whole demeanor and the way he changed over the years, I felt it was something he would have wanted to do had he committed the crime.

202.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:25:30.

203.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:25:30–01:37:29, 01:25:30–01:37:29 ("Imagine getting that phone call from him. Thinking, this man is about to die, why did you choose me as the last person to talk to aside from the people that, obviously, would be around there."; "Then this overwhelming feeling of, 'What do I say to this man? How do I comfort him? Should I comfort him? What is my role here? What am I supposed to do?' Sort of a feeling of helplessness, really. So I let him do a lot of talking.").

204.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:25:30–01:37:29, 01:50:20–1:51:53:

A. I gave him the opportunity, ever the journalist, to say anything he wanted to say, to get it off his chest. If he wanted to admit that, after all this time, "Yeah, I did commit this crime." . . .

Q. What did that suggest to you about the likelihood that at a that point he might want, need to be honest with you as he was approaching the end?

A. I felt there were things he wanted to get off his chest, and he did. I wasn't family, I wasn't clergy, but I was more of an objective observer who he felt comfortable telling things to because I was objective, and I wasn't automatically dismissing everything he said as a typical inmate trying to save his butt at the last minute, or one who's found religion, like they all have.

See Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:25:30–01:37:29:

Maybe get it off his chest and tell one human being. He chose me to be last person to talk with—why wouldn't he tell me? I'm the person he supposedly trusted. Did he want to take it to his grave, or was he really telling the truth? I found it interesting that, given that situation, that if he was guilty, why wouldn't he just say so? Because of his whole demeanor and the way he changed over the years, I felt it was something he would have wanted to do had he committed the crime.

205.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:25:30:

I said, "Carlos, is there anything you want to tell me? Do you want to tell me anything about what really happened?" He said, "No, they're putting to death an innocent man." And I think at that point it really hit me that maybe they were. He had nothing to lose at this point. Maybe get it off his chest and tell one human being. He chose me to be last person to talk with—why wouldn't he tell me? I'm the person he supposedly trusted. Did he want to take it to his grave, or was he really telling the truth? I found it interesting that, given that situation, that if he was guilty, why wouldn't he just say so? Because of his whole demeanor and the way he changed over the years, I felt it was something he would have wanted to do had he committed the crime.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:51:53 ("I asked him point-blank, 'Do you have something you want to confess to me? Do you have something you want to tell me, Carlos?' He said, 'No, I didn't commit this crime that they're killing me for.'").

206.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:25:30 ("I said, 'Carlos, is there anything you want to tell me? Do you want to tell me anything about what really happened?' He said, 'No, they're putting to death an innocent man.' And I think at that point it really hit me that maybe they were. He had nothing to lose at this point.");

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:50:59–1:53:55:

He knew I would be objective with the information that he shared with me, and he shared with me quite a bit. But again, he still denied. He knew he had an hour, a little over an hour to live. He knew there was no hope of any last minute stay or reprieve for him. I asked him point-blank, "Do you have something you want to confess to me? Do you have something you want to tell me, Carlos?" He said, "No, I didn't commit this crime that they're killing me for." But he said he had made peace. He said, "There's nothing I can do." He admitted that he was scared to die, but he said he wasn't going to fight it, he wasn't going to go kicking and screaming. I remember him telling me to tell his sister that he loved her, and that it would be ok for her to talk to her. I asked him, I said, "One day, I don't know when, Carlos, but I'd like to write about you and this." He gave me his blessing for that, and said I could talk [to] his sister and his family in Dallas if I wanted to. He talked a little bit about being the black sheep, and admitted some things that he had done, getting into trouble in the past. Wished that his life had gone differently, that he had gotten in with a different crowd and had a different upbringing, so to speak. Again, he had the perfect opportunity to cleanse his soul and tell somebody, get it off his chest. I might have been the perfect person for that, and that didn't happen. And I asked him. I don't think he had anything to tell me other than what he told me. There was nothing to admit to. I believe that.

207.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:25:30 ("I said, 'Carlos, is there anything you want to tell me? Do you want to tell me anything about what really happened?' He said, 'No, they're putting to death an innocent man.' And I think at that point it really hit me that maybe they were. He had nothing to lose at this point.");

see also Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:39:20–1:41:22, 1:55:33–1:57:31:

This case affected me. Before, I was all for capital punishment, and thought it was—As murders go, I've seen and read and covered even more brutal and heinous crimes than this one in particular. There were many times I thought, "That person needs to be put to death." But over the years it's changed for me. This case has done that. If we put to death one innocent man, then what's the point? We can put him away for life, but you can't say "oops, we goofed" after someone's been put to death. . . . All I know is it's definitely changed my opinion of the death penalty . . . .

208.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:53:55–01:55:33:

I was devastated. I remember hanging up the phone and just grabbing my mother and just crying and crying. She and I just fell down, just sat down on the floor and just cried and cried. I said I really didn't think this was going to happen so soon. That I couldn't believe it was happening, I couldn't believe that he called me. The whole thing was overwhelming, and I was just feeling guilty again that I hadn't done more to help him. . . . I could have stood up, I could have protested out front, I could have pounded on the governor's mansion, anything. Done more stories, gotten more attention, tried to raise money for better to get legal counsel. There's any number of things I could have done. But it probably wasn't until that last phone call that I really, truly believed him. Maybe if I had had an opportunity to have some kind of revelation like that at an earlier time, maybe I would have jumped on board on his behalf and tried to do more. But it was too little, too late, and that was a very frustrating feeling.

209.

See supra note 208.

210.

See supra note 208.

211.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:19:01–22:22:08:

But Carlos and I practiced what he was going to say. If you notice the real words, Carlos never admitted to the crime. He did not apologize or ask forgiveness from the family of who was killed. His concern was for his family. He was concerned for the friends he had on Death Row. One of his last words, which are very, very important, "Don't give up." Because many of them are striving to prove their innocence. 120, I believe it is, in America, have been taken off Death Row in the last three years or four years, who were found to be innocent. I believe Carlos was one of those. But as we approached midnight, he began to talk more and more. When he asked me to pray for him, he had a little card in his pocket. Now this is not material that's in the book. But he had a little card in his pocket. And he said, "I can't read very well." How would a human being feel about another human being? Everything that he did, to me, was to show his immaturity or his—he had not a very good education, or any education at all. But he was not a mean person. He didn't have a list of 40 different crimes. And he pulled that card out, he said, "I want to pray this prayer, but I can't read very well." . . . "Will you read this prayer for me." Now, we were not permitted . . . we were not permitted to touch an inmate, but he wanted me to hold my hand, he wanted me to hold his hands. I'd been warned by the warden, never let a convict . . . never put your hands through the gate, through the bars. Because they can either pull you forward . . . . And we had on Death Row out here, not long ago, a chaplain put his hands through, and the guy had a knife, and he slit his arm open wide. But that didn't bother me about Carlos. I put my hands through those bars, and he grabbed me like he was holding on for dear life. He was going to die, he was going to die in just a few minutes.

212.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:19:01–22:22:08.

213.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:19:01–22:22:08 :

Now, we were not permitted . . . we were not permitted to touch an inmate, but he wanted me to hold my hand, he wanted me to hold his hands. I'd been warned by the warden, never let a convict . . . never put your hands through the gate, through the bars. Because they can either pull you forward . . . . And we had on Death Row out here, not long ago, a chaplain put his hands through, and the guy had a knife, and he slit his arm open wide. But that didn't bother me about Carlos. I put my hands through those bars, and he grabbed me like he was holding on for dear life. He was going to die, he was going to die in just a few minutes.

See also Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 5 ("I asked the Reverend if he had ever been threatened . . . [and] he answered that he had been stabbed twice, both times by prisoners doing LWOP [life without parole].").

214.

See supra note 213.

215.

See supra note 213.

216.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:23:15 ("But I put them in there, and he was sitting on the cot, the bunk. But I started praying, and I could feel my hands go down. Carlos went down and he was on his knees. By the time I finished the prayer—and it was probably 4 minutes, 5 minutes long—he was on his knees, crying. Crying. And he got up and he said, 'Will you now repeat for me the twenty-third Psalm, and tell me what it is, it means for me right now.' So I repeated that. I explained to him, 'We're in the valley of the shadow of death, Carlos.'").

217.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:23:15.

218.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:23:15.

219.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:23:15.

220.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:24:07–22:26:20:

And I'd told him, at ten o'clock, where the door was, it was just a few steps away, and what was going to take place in there. And we went through the twenty-third Psalm again. He got back up and he stood. He didn't let go of my hands. The guards came over there and gave him that look, but he knew that—The guards never told the warden that my hands were through the bars. I was never permitted to pour coffee for them, I was never permitted to light their cigarettes. Of course, it wasn't legal to smoke down there but if they're getting ready to die, what's the difference? The warden knew what I was doing. Then he [DeLuna] got up and said, "I'm ready to go." He said, "I'm going to follow everything you said, and I believe everything you said." And that's the part that caused me to go [seek therapy]—after we got into the death house, it got even more personal, and that's what was my problem.

221.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:26:00.

222.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:26:20 ("Then he [DeLuna] got up and said, 'I'm ready to go.' He said, 'I'm going to follow everything you said, and I believe everything you said.' And that's the part that caused me to go [seek therapy]—after we got into the death house, it got even more personal, and that's what was my problem.").

223.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:28:55–22:30:57:

They brought him [DeLuna] in and they strapped him down. I stood right next to him. And he kept looking at me. The guards left. The guards walked out. There's nobody in there but Carlos on the gurney, the warden standing here, I was standing here, and he says to the warden, "You need to keep the same guards, because this chaplain is very—he's my daddy for today." I'm churning. So I'm holding his left hand. I agreed to hold his left hand. And I told the warden—What I would usually do is, I'd have to check their vein. I'm not a doctor, I don't know anything about veins. But they didn't want the executioners to be known. So I checked his veins, and I asked him if he'd burned them with drugs, and he hadn't. They were good. So I had to go up—Every night at eleven o'clock I'd go up and talk to the warden and say, this is what his last words are going to be, this is what he's expecting, and these are his last requests. And I told the warden, I said, "Warden, I want to get your permission, he wants his hands to be held." He said, "You know how it works, do whatever will keep him from fighting." That was the warden's big concern. So I was holding his right hand. The executioners, two of them, came in, one big tall man and one short man. And they always started with the left arm. They put ace bandage around the hand and tightened it down, sometimes taped [it down]. Then they would go for the vein right in the middle. Most of the time they were successful, most of the time. But it's traumatic to watch, it was traumatic to watch. Because I had told Carlos DeLuna, that was going to be the only pain. That was all I'd seen before. So it [the needle] went in real well. And the sodium, or the salt water, as the first, when it just cleans out, it began to run. And the two guys came around to the other side. And Carlos said, "Will you hold my other hand?" Well, the other hand already had tape and ace bandage around it, so I went around the gurney and held the other hand. I said to Carlos, "This is the last I can touch you. Once they get that I can't touch that." He said, "Would you hold my leg?" Because I'd told him I would be five inches from his leg. So I held his left hand till they went around and did insertion and needles in his right arm. And then I went back to my required place where I could watch the drip. It was my responsibility to watch the changing of the drugs and notify the warden by a nod. We had signals. So Carlos—The two executioners left and went into the little room. The warden left to go tell, he went out the door and he went to the next door, big heavy metal doors. And he always shut that door. He gave me about 45 seconds. I had about 45 seconds, just me and the inmate. And that is the 45 seconds that is never recorded anywhere. Everything else is recorded. What time the syringe started, what time he took a bath, what time he ate, what time he made a telephone call. All that's recorded. This is never recorded.

224.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:28:55–22:30:57.

225.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:30:25–22:30:57:

So I was holding his right hand. The executioners, two of them, came in, one big tall man and one short man. And they always started with the left arm. They put ace bandage around the hand and tightened it down, sometimes taped [it down]. Then they would go for the vein right in the middle. Most of the time they were successful, most of the time. But it's traumatic to watch, it was traumatic to watch. Because I had told Carlos DeLuna, that was going to be the only pain. That was all I'd seen before. So it [the needle] went in real well. And the sodium, or the salt water, as the first, when it just cleans out, it began to run. And the two guys came around to the other side.

226.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:30:25.

227.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:02:26;

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:30:57.

228.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:30:57:

So it [the needle] went in real well. And the sodium, or the salt water, as the first, when it just cleans out, it began to run. And the two guys came around to the other side. And Carlos said, "Will you hold my other hand?" Well, the other hand already had tape and ace bandage around it, so I went around the gurney and held the other hand. I said to Carlos, "This is the last I can touch you. Once they get that I can't touch that." He said, "Would you hold my leg?" Because I'd told him I would be five inches from his leg. So I held his left hand till they went around and did insertion and needles in his right arm. And then I went back to my required place where I could watch the drip.

229.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:30:57.

230.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:30:57.

231.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:30:57.

232.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:30:57:

And then I went back to my required place where I could watch the drip. It was my responsibility to watch the changing of the drugs and notify the warden by a nod. We had signals. So Carlos—The two executioners left and went into the little room. The warden left to go tell, he went out the door and he went to the next door, big heavy metal doors. And he always shut that door. He gave me about 45 seconds. I had about 45 seconds, just me and the inmate. And that is the 45 seconds that is never recorded anywhere. Everything else is recorded. What time the syringe started, what time he took a bath, what time he ate, what time he made a telephone call. All that's recorded. This is never recorded.

233.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:33:07:

And he said, "I just want to thank you, daddy, for being my daddy for one day." I couldn't cry. I never have been able to, and I wasn't supposed to, first of all. He said, "Would you please keep your hand on my leg?" So it [sic] put it right on his knee. One of the things I did, I put my thumb where I could feel his pulse. On everybody that asked for it. After a while they all started asking for it. But the warden came back in and he, Carlos DeLuna, whispered to me, "I just want to thank you for being so good to me, daddy." And the warden looked up at me and just smiled. The warden's a tough man, cowboy boots, all that kind of stuff. But he never interfered with that last 45 seconds. Then the witnesses came in, stood back here. Carlos looked over at them, and then he looked back. He kept his eyes on me, and he said he was going to. He said, "Will you be where I can see you?" I said, "Yes, I'll stand right here. I won't move." And Mr. Lynaugh, who was the director [of the overall Department of Corrections], stepped through the door and said, "Warden, you may proceed," which is procedure. The warden said, "Thank you, sir." The warden said, "Carlos, do you have any final words?" And Carlos gave his statement. I have his accurate statement. . . . . The book [put out by the Texas Department of Corrections] doesn't have his accurate statement. But it was very sweet, if you want to use that term. It was very sincere.

234.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:33:07.

235.

James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 1 ("[Carlos's family] [d]idn't see execution").

For the reaction of Wanda Lopez's family to DeLuna's execution, see Transcribed Videotape Interview with Richard Louis Vargas, Brother of Wanda Lopez, in Corpus Christi, Texas (Dec. 4, 2004) at 07:11:30–7:11:50 ("Q. At that time, the night of your sister's death until Dec 7, 1989 when Carlos DeLuna was executed, what were your feelings towards him? A. I didn't know the individual, only what I come to hear. I couldn't believe that he did it, for what reason. If he only knew my sister he wouldn't of done this.");

Associated Press, Texan Is Put to Death by Injection for Killing Woman in a Robbery, N.Y. Times, Dec. 8, 1989, at A24, available at http://www.nytimes.com/1989/12/08/us/texan-is-put-to-death-by-injection-for-killing-woman-in-a-robbery.html ("When told about the execution, Ms. Lopez's mother, Mary Vargas, said, 'I'm glad this is over with.'"); Cindy Tumiel, Convicted Killer Executed After Court Rejects Appeals, Corpus Christi Caller-Times, Dec. 7, 1989, at B1 ("DeLuna has continued to maintain his innocence, claiming that the murder was committed by a friend named Carlos Hernandez. But those whose lives were touched by the crime doubt the story. 'He'll be lying until he dies,' said Mary Vargas, Lopez'[s] mother. 'He'll lie like he's been lying. Now he has to pay for what he did to my daughter.'").

See generally Carlton Stowers, Final Passages: The Reverend Carroll Pickett Leaves a Grim 15-Year Legacy of Very Personal Ministry, Hous. Press, Nov. 2, 2000, available at http://www.houstonpress.com/content/printVersion/223725/:

One of the traditions attached to the administration of the death sentence that troubled him most, Pickett says, was that of the family members' being allowed to witness the execution. "I've always felt it would be easier on everyone if they could find it in themselves not to be there and watch."

"I would meet with them beforehand and do the best I could to explain what they would see, but it rarely prepared them. There is a great difference in watching an elderly loved one die of cancer and seeing a healthy man who, for lack of a better term, is not of dying age, being put to death. Seeing someone you care for strapped down, scared, totally helpless, knowing he is about to be killed, is a traumatic experience beyond almost any other I can imagine."

From his vantage point in the death chamber, Pickett saw witnesses faint, and he watched as others became hysterical and violently ill. "I don't like to think of the number of times I've been told by a family member afterward that I hadn't prepared them for what they actually experienced," he says. "The truth of the matter is, no matter how hard you try, there is just no way to do it."

In keeping with his duties, however, Pickett never voiced his personal feelings on the matter, never discouraged any visit by those who wished to be on hand in the final moments.

236.

Holdings of the Texas State Archives, Execution Witness List, Carlos DeLuna #744 (Dec. 7, 1989) (listing "The Honorable Jim Mattox, Attorney General, State of Texas" as one of the witnesses to the execution);

Michael Graczyk, Associated Press, Texas Inmate Executed for 1983 Robbery-Slaying, Dec. 7, 1989;

see Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain in Huntsville, Texas (Feb. 26, 2005) at 22:45:11–22:53:24:

Jim Mattox, the Attorney General of Texas, started attending the executions. I don't know exactly when, it might have been right at the very beginning. The very first ones were high profile—Cowboy Autry [James David Autry, executed in 1984], Charlie Brooks [executed in 1982], Candyman [Ronald Clark O'Brien, executed in 1984], these people were high profile. . . . But Jim Mattox would come and . . . sometimes he'd want to come in and talk to the inmate at a quarter to eleven. And he would ask questions, which I felt like were totally out of place,8 totally out of place. . . . Sometimes he and I would talk. He told me several times, "I am not in favor of this killing. I am not in favor of this." In particular when he had one that wasn't a high-profile case. Sometimes he would come in the witness room and watch the tie-down and watch the insertion. . . . Sometimes Jim Mattox would stay in the visitors room, the witness room . . . Jim Mattox said, [a]fter [Carlos DeLuna] was strapped down, and the warden left . . . And he whispered to me, "Come here." . . . "How long do you think we have to keep doing this horrible thing?" I didn't say a word.

James S. Liebman's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 2–3 ("Jim Maddox [sic—Mattox] came over to [DeLuna's] execution. . . . P[ickett] has [a] note on paper that Maddox was around for this [DeLuna's] one [execution]. . . . We'd take them in and strap them in; and Maddox would come into visitor's room and stay there. . . . Maddox: This one: 'Never should have been here.' . . . 'Why do we have to do this.' . . . "; "Maddox: 'This guy should never have been here.'").

237.

Carlton Stowers, Final Passages: The Reverend Carroll Pickett Leaves a Grim 15-Year Legacy of Very Personal Ministry, Hous. Press, Nov. 2, 2000, http://www.houstonpress.com/2000-11-02/news/final-passages/:

While [Pickett's] focus in those final hours was to keep the inmate as calm as possible, often those in law enforcement would demand one final chance at obtaining a confession or details of the crime for which the prisoner had been convicted. One sheriff even suggested that Pickett disregard the confidentiality vow he'd taken as a minister and wear a wire so that any admission to other crimes of which a particular inmate was suspected might be recorded. Ultimately Pickett went to the warden with a request that then-Texas attorney general Jim Maddox [sic—Mattox] be kept away from the death house on execution day. "He always wanted to talk with the prisoner, asking for details of the crime," Pickett recalls. Maddox, he says, only made a bad situation worse with his demanding demeanor and monopoly of the condemned man's final hours.

Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 7 ("Reverend Pickett was asked twice to wear a wire while spending time with a condemned prisoner, in case the prisoner should confess to the instant or other crimes. He refused. Attorney General Maddox [sic—Mattox] was especially pushy about getting last-minute confessions or details of crimes, so much so that Reverend Pickett requested that the warden not allow Maddox into the prison during an execution.").

238.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:33:07–22:35:15;

see Kathy Fair, Murderer DeLuna Is Put to Death, Hous. Chron., Dec. 7, 1989 at 33A (noting that DeLuna repeatedly lifted his head from the gurney to look at Pickett).

239.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:33:07–22:35:15.

240.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:33:07–22:35:15;

see Kathy Fair, Murderer DeLuna is Put to Death, Hous. Chron., Dec. 7, 1989 at 33A. ("DeLuna, Pickett said, was scared and had asked the minister to maintain physical contact with him while he died. So Pickett stood there, with his right hand lightly resting on the condemned man's lower right leg as the lethal injection was administered.").

241.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:17:05–22:19:01:

Even Carlos's final words are not accurate in that book [published by the Texas Department of Corrections about final meals and statements]. In fact, they're not accurate in any book, or in a magazine. I would tell the convicts and the inmates, "The only way they're going to quote exactly what you say is if you say nothing." And this is true of many people. What Carlos said—I'm five inches from his leg. I would hear what he said, I would—We practiced, ok? He and I practiced at 11:30 what he wanted to say. So I knew what he wanted to say. Some of them wanted me to help them do it, and I couldn't do it. I was not allowed to. But I know that there was a person writing down, exactly, his words. . . . But the ones in this book, and the ones that were on TV [were not accurate]. And I'm not knocking reporters. The media just doesn't—They're down there in shock. Ted Koppel is considered one of the greatest people in the world in the media. And he watched an execution. He came to watch the execution of Mario Marquez, who was mentally retarded, who was very much, in my mind, like Carlos. Very much like him. And I was interviewed by Ted Koppel. And I told him, "If you witness this, you're not going to hear or report exactly what he says." He said, "What do you mean?" I said, "Because your emotions are going to be involved." And he went on his TV program and quoted what [Mario Marquez] said, and it was totally wrong. I met with him the next day and I told him. I said, "This is what Mario said." The same way with Carlos [DeLuna's last words].

See supra notes 151–52 and accompanying text. For press accounts of DeLuna's final words, see infra notes 243, 247, 265. For the official Texas Department of Criminal Justice version of DeLuna's final statement, see Texas Dep't of Criminal Justice, Offender Information Last Statement for Carlos DeLuna (Dec. 7, 1989), http://www.tdcj.state.tx.us/death_row/dr_info/delunacarloslast.html.

242.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:17:05–22:21:08.

243.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:19:01–22:22:08:

But Carlos and I practiced what he was going to say. If you notice the real words, Carlos never admitted to the crime. He did not apologize or ask forgiveness from the family of who was killed. His concern was for his family. He was concerned for the friends he had on Death Row. One of his last words, which are very, very important, "Don't give up." Because many of them are striving to prove their innocence. 120, I believe it is, in America, have been taken off Death Row in the last three years or four years, who were found to be innocent. I believe Carlos was one of those.

See Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30 ("He loved his family very much.");

Associated Press, Texan Is Put to Death by Injection for Killing Woman in a Robbery, N.Y. Times, Dec. 8, 1989, at A24, available at http://www.nytimes.com/1989/12/08/us/texan-is-put-to-death-by-injection-for-killing-woman-in-a-robbery.html ("'I want to say I hold no grudges,' Mr. DeLuna said while strapped to a gurney in the death chamber. 'I hate nobody. I want my family to know I love them. I want to tell everyone on death row to keep the faith up, to keep going. Everything will be all right.'"); Michael Graczyk, Associated Press, Texas Inmate Executed for 1983 Robbery-Slaying, Dec. 7, 1989 ("DeLuna, 27, said . . . 'I want my family to know I love them.");

Anne Michaud, Inmate Executed at Walls, The Huntsville Item, Dec. 7, 1989, at 1 ("Carlos DeLuna used his last minutes of life to tell his family he loved them.").

244.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:50:40–21:54:40:

A. I didn't tell many people that this took place. Because, first of all, so much gets out of there that I don't know how it gets out. It's like that one letter. Nobody ever knew, when people wrote letters, who I mailed them to. Because the warden never looked at them, nobody ever looked at them. I took them and mailed them at four o'clock in the morning when nobody was at the Post Office. But somehow the prosecutor in Nueces County found out about that. How he did, I will never—I don't know to this day. And it bothered me. But that was because he trusted me and I trusted him. I never understand about how that happened. I never have revealed where that letter went, and I will not. I promised Carlos and I will keep that promise.

Q. There was an article written in the Houston Chronicle by a reporter by the name of Kathy Fair. And an implication left by that letter [sic—article] was that Carlos DeLuna had written a letter to the family of the victims to ask their forgiveness. I know you have a relationship with Carlos, a minister-penitent relationship, which prevents you from revealing. But is it accurate to say that he wrote a letter to say that he wrote a letter to the family of the victim.

A. No. . . . I think, in that article, Kathy says, and I told her—She was the one who informed me that the Nueces County prosecutor found out about it. And she asked me about that. And I think that article states that I stated it was not [written or addressed] to anyone involved in this crime for which he was executed. I'm pretty sure that's in that article. To this day, I will maintain, it was not. It was not to anyone involved with this case. But I will not say who it went to.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:21:30–21:26:27:

Q. There was a letter that was written. Carlos wrote a letter at the very, very end of his hours, he wrote a letter . . . . Would you tell us about that letter—what the contents were and what became of the letter?

A. I wish I would have been able to save that letter. When I opened that letter, Carlos was apologizing for all the hurt that he caused. And I know what he meant by that. He was hurting for us, because he knew that I would be hurting for him. He knew that. And he was just so sorry for all the pain that he caused to his family members, and to his mom, to our mother. He knew that.

Q. Did he say anything in that letter that indicated he was guilty of the crime for which he was—

A. No. He never stated that on the letter. He just said he was sorry for causing us pain. He was sorry.

Q. What happened to that letter?

A. When we moved, I had asked my sister, that lives in Garland. I had some boxes, all Carlos's stuff, that was sent back to me. And that was the hardest thing, receiving your brother's things. They sent them in boxes. All his belongings in a box. I placed all those things in a storage box, because I was very hurt. When we moved I asked my sister if we could store some stuff in her garage and she said yes.

A. When I did ask for all the stuff back, which was six, seven years later, all the stuff got destroyed. Which I was very devastated, because Carlos's things were there. All his belongings, his watch that he wore all the time, his books that he read, his Bible, were all destroyed. And all the letters that we corresponded back and forth was all destroyed in that box.

Q. Do you know how it got destroyed?

A. My sister said it was damage by all the rain, things that her storage got all messed up. Not only did my things get destroyed but her things got destroyed, too.

Q. Let me just ask, if someone were to say, here's this newspaper article, and it says that he wrote a letter asking for forgiveness at the end of his life, and that proves that he must have admitted his guilt of this crime in that letter, what would you say to that?

A. Carlos was asking for forgiveness from us, for us to forgive him for all the agony that he put us through, for the pain. He knew that we were going through pain. He's told me many times, "I'm so sorry that this is happening, I'm so sorry that you're going through all this." And he asked for me to forgive him, but what's there to forgive? Your family members, your brother, your sister makes a mistake? Carlos never hurt me, he never did anything to me. Did he get in trouble? Yes. Did it hurt to see him get executed? Yes. But he's my brother and I love him. His forgiveness came from God. I believe that God forgave him, and Carlos is in the best place now. He's peaceful. He's at peace.

See James S. Liebman, Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 11, 2004) at 2 ("Kathy Fair—Houston Chronicle. Now Kathy Walt; husband [is a lawyer] in [Texas] AG's [Attorney General's] office. She's PP [press person] for Gov. [Perry.] She wrote article saying CDL [Carlos DeLuna] wrote letter asking for forgiveness on night before execution. She came to P[ickett] to ask who letter was sent to. He wouldn't tell her, but he did tell her and article says that it was NOT [written to] anyone involved in the crime in any way. Not [written to a] member of V's [victim's] family. Believes it was [written to] a member of his [DeLuna's] family to whom he wrote.");

Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 3 ("I asked Reverend Pickett about a letter Carlos had sent out shortly before his death. Reverend Pickett said he regularly mailed out letters for prisoners about to be executed. The warden knew about it and did not object. Reverend Pickett mailed a letter out for Carlos, but he could not reveal the contents of the letter because of the priest-penitent relationship he had with Carlos. Reverend Pickett stated that he could tell me it was not a confession to murder.");

see also Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:54:47–21:55:52 ("My method of ministry, if he would have given me a letter at ten minutes to midnight, I put them inside this pocket. (mimes putting a letter in his inside jacket pocket) The warden knew I was doing this. I did this for almost all ninety-five. But he never asked me who it went to. The system requires they are supposed to be censored, but once a person is dead they don't have to censor. So I wasn't breaking any laws.").

245.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:21:30–21:26:27 (quoted supra note 244).

246.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005).

In a second instance of potentially misleading news coverage attributable to Houston Chronicle reporter, Kathy Fair, see supra Chapter 15, notes 345–348 and accompanying text, she wrote in the opening paragraph of her last story on Carlos DeLuna for the Chronicle that "[o]ne of Carlos DeLuna's last acts before being executed was to ask a prison chaplain to mail a letter to one of his victims seeking forgiveness." Kathy Fair, Executed Murderer Asked Forgiveness, Chaplain Says, Hous. Chron, Dec. 8, 1989, at 32A.

As Fair disclosed later in the article, she had no basis for using the word "victim" in a context that suggested she was talking about a crime victim. Her source for the information in the story was Rev. Pickett. And "Pickett" told her, as she acknowledged near the end of the article, "that DeLuna had asked him to mail a letter to someone the convict believed had not forgiven him. It was not sent to Lopez's parents, Pickett said. He declined to specify to whom the letter was addressed, other than to say it was not sent to anyone involved in the case for which he was executed." Kathy Fair, Executed Murderer Asked Forgiveness, Chaplain Says, Hous. Chron, Dec. 8, 1989, at 32A (emphasis added).

As is set out above, see supra note 244, although Pickett's duty of confidentiality to a penitent prevents him from disclosing the addressee of the letter, see Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:50:40–21:54:40, he has confirmed that the letter was not mailed to anyone with any relationship to Wanda Lopez, see Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 21:50:40–21:54:40, other sources cited supra note 244, and Carlos DeLuna's sister Rose Rhoton has revealed that the letter was written to her seeking forgiveness from her and the rest of his family for all the anguish he put them through over the course of his life. See Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:21:30–21:26:27.

247.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:19:01–22:22:08:

But Carlos and I practiced what he was going to say. If you notice the real words, Carlos never admitted to the crime. He did not apologize or ask forgiveness from the family of who was killed. His concern was for his family. He was concerned for the friends he had on Death Row. One of his last words, which are very, very important, "Don't give up." Because many of them are striving to prove their innocence. 120, I believe it is, in America, have been taken off Death Row in the last three years or four years, who were found to be innocent. I believe Carlos was one of those.

See Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30 ("And then he told these guys out on Death Row to hang in there.");

DeLuna Executed for the 1983 Robbery-Slaying of Woman, Galveston Daily News, Dec. 8, 1989, at A11 ("Convicted killer Carlos DeLuna, saying he had no hate and professing support for his fellow death row inmates, was executed early Thursday for the 1983 Robbery-Slaying of a Corpus Christi Woman. . . . DeLuna had insisted all along that he was not responsible for the death of Wanda Jean Lopez, 24"); Michael Graczyk, Associated Press, Texas Inmate Executed for 1983 Robbery-Slaying, Dec. 7, 1989 ("Convicted killer Carlos DeLuna, saying he had no hate and professing support for his fellow death row inmates, was executed early Thursday for the 1983 Robbery-Slaying of a Corpus Christi Woman.");

Cindy Tumiel, Convicted Killer Executed After Court Rejects Appeals, Corpus Christi Caller-Times, Dec. 7, 1989, at B1 ("DeLuna gave a short statement to those present, '. . . I want to tell everyone on death row to keep the faith up—to keep going. Everything will be all right'").

248.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:19:01–22:22:08; see Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30 ("And then he told these guys out on Death Row to hang in there.").

249.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30 ("And then he told these guys out on Death Row to hang in there. And then he looked up at me, and he had these big old brown eyes. I'll never forget those brown eyes. I can dream about those brown eyes. So, since I had not told the warden what his last words were going to be, I nodded to the warden that that was it.");

see Kathy Fair, Murderer DeLuna Is Put to Death, Hous. Chron., Dec. 7, 1989 at 33A (noting that DeLuna repeatedly lifted his head from the gurney to look at Pickett).

250.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30.

251.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30:

He loved his family very much. He was sorry that he'd ended up like this. But we had been talking all day about how his life had not been a good life. He'd messed with the wrong crowd, moved with the wrong people at the wrong time. And then he told these guys out on Death Row to hang in there. And then he looked up at me, and he had these big old brown eyes. I'll never forget those brown eyes. I can dream about those brown eyes. So, since I had not told the warden what his last words were going to be, I nodded to the warden that that was it. His sign for the executioners—there was a two-way mirror there, behind the mirror—was to take off his glasses. The warden's responsibility was—that meant start the sodium tri-pentathol. Then he looked at his watch. All he did was watch his watch. I watched the inmate; the inmate was mine. The legal stuff was his. . . . But I was squeezing his leg, and holding him. I saw the fluid change in the drop, the sodium tri-pentathol started. I had told him, it's going to be nine seconds and you'll be asleep. Well, about ten, fifteen seconds, he raised up his head. Our heads aren't strapped down in Texas. And he looked at me, and it really hurt me, because I knew the time had passed. The other guys had gone to sleep. They'd given their cough or whatever it was. And I wonder, to this day, what was he thinking? And then about another ten seconds passed, and he raised his head again. Nobody had ever done this. Those big, brown eyes were wide open. Here I am, five inches from his knee, five feet from his face, and he's looking straight at me. And I don't know what the question was in his brain. I don't know what he was thinking. If I wanted to be paranoid, I could say he was thinking, "You lied to me," but he was not that type of person. In a way, he was telling me, "I'm innocent. I didn't do this." So I could imagine a million things. And he lay back down. And I saw the bubble come at twenty-four seconds. Then the tubocurare started, and that's what froze his muscles. And his eyes closed. We waited. Then I saw the next bubble come, and it was the potassium which froze his heart. And he was pronounced dead ten minutes after the first drug. They used to keep records, and they tried to beat [i.e., complete the entire procedure and induce death within] six minutes. His was ten minutes. And that's what hurt me.

See Kathy Fair, Murderer DeLuna Is Put to Death, Hous. Chron., Dec. 7, 1989 at 33A (noting that DeLuna repeatedly lifted his head from the gurney to look at Pickett).

252.

See, e.g., Baze v. Rees, 553 U.S. 35, 44 (2008):

The first drug, sodium thiopental (also known as Pentothal), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs.

Rev. Carroll Pickett with Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain 57–58 (2002) ("If all went according to plan . . . [t]he first drug would sedate the inmate, the second would relax his muscles, then collapse the diaphragm and lungs, and the third would stop his heart from beating . . . . The entire process would last no more than a few minutes."); see also Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004):

Reverend Pickett then explained to me about the drugs used in executing prisoners in Texas. The first drug administered was sodium pentothal, which is supposed to put the prisoner to sleep within 7 to 12 seconds. Looking at the tube, you knew the sodium pentothal was on the way when you saw the first bubble. When you saw the second bubble, the second drug was on its way. This was pabulon [sic—Pavulon], which froze the muscles. It has been banned by the American Veterinary Association because it is harmful and painful to animals. The third drug administered was potassium chloride, which froze the heart. All prisoners got the same dosage, regardless of their size and weight. Each dose cost the state $70.10. Reverend Pickett said that usually, after the sodium pentothal was administered, the pulse would stop right away. It was different with Carlos. His pulse did not stop and he did not go to sleep.

253.

See supra note 251.

254.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30:

And I wonder, to this day, what was he [Carlos DeLuna] thinking [when he raised his head and looked at Pickett]? And then about another ten seconds passed, and he raised his head again. Nobody had ever done this. Those big, brown eyes were wide open. Here I am, five inches from his knee, five feet from his face, and he's looking straight at me. And I don't know what the question was in his brain. I don't know what he was thinking. If I wanted to be paranoid, I could say he was thinking, "You lied to me," but he was not that type of person. In a way, he was telling me, "I'm innocent. I didn't do this." So I could imagine a million things. And he lay back down. And I saw the bubble come at twenty-four seconds. Then the tubocurare started, and that's what froze his muscles. And his eyes closed. We waited. Then I saw the next bubble come, and it was the potassium which froze his heart. And he was pronounced dead ten minutes after the first drug. They used to keep records, and they tried to beat [i.e., complete the entire procedure and induce death within] six minutes. His was ten minutes. And that's what hurt me.

See Susan Montez's Notes on Interview with Carroll Pickett, Texas Death House Chaplain (July 17, 2004) at 4:

Reverend Pickett said that Carlos was concerned about whether the execution by injection of drugs would hurt. Reverend Pickett told him he would be asleep in 7 to 12 seconds. Unable to hold Carlos's hand when the time came, Reverend Pickett held his ankle, where he could feel a pulse. Carlos was looking into Reverend Pickett's eyes. "There he was, looking at me with those big brown eyes, AND HE DID NOT GO TO SLEEP. I knew when I saw that second bubble coming that he was going to hurt. And I knew that he thought I had lied to him." . . . Reverend Pickett then explained to me about the drugs used in executing prisoners in Texas. The first drug administered was sodium pentothal, which is supposed to put the prisoner to sleep within 7 to 12 seconds. Looking at the tube, you knew the sodium pentothal was on the way when you saw the first bubble.

When you saw the second bubble, the second drug was on its way. This was pabulon [sic—Pavulon], which froze the muscles. It has been banned by the American Veterinary Association because it is harmful and painful to animals. The third drug administered was potassium chloride, which froze the heart. All prisoners got the same dosage, regardless of their size and weight. Each dose cost the state $70.10. Reverend Pickett said that usually, after the sodium pentothal was administered, the pulse would stop right away. It was different with Carlos. His pulse did not stop and he did not go to sleep (emphasis in original).

255.

See Baze v. Rees, 553 U.S. 35, 71–73 (2008) (Stevens, J., concurring in the judgment):

Because it masks any outward sign of distress, pancuronium bromide [also known as Pavulon] creates a risk that the inmate will suffer excruciating pain before death occurs. There is a general understanding among veterinarians that the risk of pain is sufficiently serious that the use of the drug should be proscribed [forbidden] when an animal's life is being terminated. As a result of this understanding among knowledgeable professionals, several States—including Kentucky—have enacted legislation prohibiting use of the drug in animal euthanasia. It is unseemly—to say the least—that Kentucky may well kill [capital prisoners] using a drug that it would not permit to be used on their pets. Use of pancuronium bromide is particularly disturbing because—as the trial court specifically found in this case—it serves "no therapeutic purpose."

Baze v. Rees, 553 U.S. 35, 113–114 (2008) (Ginsburg, J., dissenting):

It is undisputed that the second and third drugs used in Kentucky's three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. Potassium chloride causes burning and intense pain as it circulates throughout the body. Kentucky's protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentucky's omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.

256.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30:

And then [after giving his last statement] he [DeLuna] looked up at me, and he had these big old brown eyes. I'll never forget those brown eyes. I can dream about those brown eyes. So, since I had not told the warden what his last words were going to be, I nodded to the warden that that was it. His sign for the executioners—there was a two-way mirror there, behind the mirror—was to take off his glasses. The warden's responsibility was—that meant start the sodium tri-pentathol. Then he looked at his watch. All he did was watch his watch. I watched the inmate; the inmate was mine. The legal stuff was his. . . . But I was squeezing his leg, and holding him. I saw the fluid change in the drop, the sodium tri-pentathol started. I had told him, it's going to be nine seconds and you'll be asleep. Well, about ten, fifteen seconds, he raised up his head. Our heads aren't strapped down in Texas. And he looked at me, and it really hurt me, because I knew the time had passed. The other guys had gone to sleep. They'd given their cough or whatever it was. And I wonder, to this day, what was he thinking? And then about another ten seconds passed, and he raised his head again. Nobody had ever done this. Those big, brown eyes were wide open. Here I am, five inches from his knee, five feet from his face, and he's looking straight at me. And I don't know what the question was in his brain. I don't know what he was thinking. If I wanted to be paranoid, I could say he was thinking, "You lied to me," but he was not that type of person. In a way, he was telling me, "I'm innocent. I didn't do this." So I could imagine a million things. And he lay back down. And I saw the bubble come at twenty-four seconds. Then the tubocurare started, and that's what froze his muscles. And his eyes closed. We waited. Then I saw the next bubble come, and it was the potassium which froze his heart. And he was pronounced dead ten minutes after the first drug. They used to keep records, and they tried to beat [i.e., complete the entire procedure and induce death within] six minutes. His was ten minutes. And that's what hurt me.

See Kathy Fair, Murderer DeLuna Is Put to Death, Hous. Chron., Dec. 7, 1989 at 33A (noting that DeLuna repeatedly lifted his head from the gurney to look at Pickett).

257.

See supra note 256.

258.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30 ("And he lay back down. And I saw the bubble come at twenty-four seconds. Then the tubocurare started, and that's what froze his muscles. And his eyes closed. We waited. Then I saw the next bubble come, and it was the potassium which froze his heart. And he was pronounced dead ten minutes after the first drug. They used to keep records, and they tried to beat six minutes. His was ten minutes. And that's what hurt me. Those 24 seconds were hard.").

259.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30.

260.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30.

261.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:35:15–22:39:30.

262.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 22:39:30–22:39:51 ("I had to go talk to somebody [a therapist] about it. I didn't sleep for days. Next time I went to sleep was December 12th. I can remember sleeping December 12th. I didn't sleep December 8th, 9th, 10th, 11th. That's a long time to stay awake for one kid.").

263.

Transcribed Videotape Interview with Carroll Pickett, Texas Death House Chaplain, in Huntsville, Texas (Feb. 26, 2005) at 23:08:08–23:09:45:

And maybe—I have to say this the right way. It's in the book [that Reverend Pickett wrote about his experiences as the Death Chaplain], and in the book it's said right, because I quoted Dave Erb. Doctor Dave Erb was my counselor in Dallas. He was my therapist, he was my teacher. He helped me get my doctorate in Clinical Pastoral Education, and I went to him for a year in training. A C.P.E.'s a big deal. I told him everything about how I felt. I explained practically the whole day, particularly those last few minutes when those big old brown eyes raised their head up and—I don't know what he's thinking. Incredible guilt. . . . But that's the point that Carlos DeLuna made me start more and more going to "let's look into these things." That's when I started thinking, we are killing innocent people. We are killing children. We are killing mentally retarded [individuals]."

264.

See supra note 263.

265.

Michael Graczyk, Associated Press, Texas Inmate Executed for 1983 Robbery-Slaying, Dec. 7, 1989:

Convicted killer Carlos DeLuna, saying he had no hate and professing support for his fellow death row inmates, was executed early Thursday for the 1983 Robbery-Slaying of a Corpus Christi Woman.

"I want to say I hold no grudges, I hate nobody," DeLuna, 27, said while strapped to the Death Chamber Gurney. "I want my family to know I love them. Want to tell everyone on Death Row to keep the faith up, to keep going. Everything will be all right."

The lethal injection began at 12:14 A.M. He was pronounced dead 10 minutes later.

DeLuna had insisted all along that he was not responsible for the death of Wanda Jean Lopez, 24, whose final words of terror on Fed. 4, 1983 were captured on a police emergency dispatcher's tape recording. The Woman had called police for help after customers tipped her they saw a man with a knife outside the convenience store-gas station where she worked.

Eyewitnesses identified him at his trial as the knife-wielding man.

See also Associated Press, Texan Is Put to Death by Injection for Killing Woman in a Robbery, N.Y. Times, Dec. 8, 1989, at A24, available at http://www.nytimes.com/1989/12/08/us/texan-is-put-to-death-by-injection-for-killing-woman-in-a-robbery.html ("[DeLuna] said another person committed the crime . . . ."); Anne Michaud, Inmate Executed at Walls, The Huntsville Item, Dec. 7, 1989, at 1 ("Carlos DeLuna used his last minutes of life to tell his family he loved them. . . . The First injection began at 12:14 a.m. He was declared dead at 12:24. While at the "death house" in Hunstsville's Walls Unit awaiting his execution Wednesday, DeLuna visited with his sisters, Rosemary DeLuna and Vicky Gutierrez; his friend, Brad Rhoton; Daniel and Maria Conejo, his half-brother and sister-in-law; and Maria Arredondo, his half sister.");

Cindy Tumiel, Convicted Killer Executed After Court Rejects Appeals, Corpus Christi Caller-Times, Dec. 7, 1989, at B1:

Carlos DeLuna was put to death early today for the robbery and slaying of a Corpus Christi service station attendant whose pleas for mercy were monitored by a police emergency dispatcher.

. . . .

Before dying, DeLuna gave a short statement to those present, "I want to say I hold no grudges. I hate nobody. I love them. I want to tell everyone on death row to keep the faith up—to keep going. Everything will be all right," he said.

. . . .

DeLuna has continued to maintain his innocence, claiming that the murder was committed by a friend named Carlos Hernandez. But those whose lives were touched by the crime doubt the story. "He'll be lying until he dies," said Mary Vargas, Lopez' mother. "He'll lie like he's been lying. Now he has to pay for what he did to my daughter."