HRLR
Los Tocayos Carlos
Chapter 7
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Kelly scrupulously followed this rule with Carlos Hernandez.188 One of the most active defense lawyers in town, Kelly was fully aware of Hernandez's reputation as an "extremely violent . . . extremely dangerous person."189 He'd heard the cops talk about the knives, drunken rages, and violent crimes, especially against women.190 When the judge appointed him to represent Carlos, people in the courthouse warned him to be careful.191 They said Hernandez had committed other killings and bragged about it, and he didn't doubt all that was true. But when Carlos tried to confess his crimes to Kelly, whether in a law office or more public place, the lawyer always cut him off.192

Kelly also experienced the man close up. He described Hernandez to investigators years later: "Relatively thick Hispanic accent. Could be somewhat charming. Extremely violent temper. I'm sure you've heard that. Ungovernable temper after consumption of large amount of alcohol."193

"He would drink to excess and make mistakes," Kelly continued. "I imagine he could be violent, merciless. People gave him a wide berth."194

He had good qualities, too, the lawyer said. When he wanted to be, and was sober, he was a good worker. "For a street thug, he was very dependable."195

Overall, the defense lawyer concluded, Hernandez "was not that bad. He took a bath before court and kept his mouth shut, just like a lawyer would ask." 196

In any event, Kelly knew what the police claimed Hernandez had done to Dahlia Sauceda.197 The last thing he needed was to hear more details from Carlos. Instead, Kelly began filing papers demanding that the prosecutors give him all their evidence in the case, from Escobedo and Botary's indictment of Jesse Garza years before to everything gathered by Rivera and Garza in 1986.198

After reading the transcript of the earlier trial, Kelly was particularly interested in two pieces of evidence: the tape recording of Carlos's conversation with his mother from the police station, and the transcript of Carlos's conversation with Botary that had convinced the prosecutor to go to trial against Jesse Garza and let Carlos Hernandez alone.199

* * * * *

On New Year's Eve 1986, Judge Blackmon dismissed the case against Carlos Hernandez. Too much time had passed, Blackmon concluded, and the prosecutors had not come up with the evidence that Kelly needed to prepare an effective defense.200

The tape-recorded conversation with Fidela and the transcript of Carlos' conversation with Botary were essential pieces of evidence in the case, and the D.A.'s office never produced either one.201

Hernandez's release was big news. Local papers and TV stations covered it. The case was notorious, and Carlos had been waiting for a trial to happen for a long time, with no action. Asked by the press to explain his victory, Kelly explained, "it's Christmas."202

Hernandez got lucky. Although they had him dead to rights with his fingerprint, boxer shorts, semen, lies, and confession, it turned out that Ken Botary had taken custody of the tape and transcript and somehow lost both.203 Carlos Hernandez was a free man. No one would ever be punished for murdering Dahlia Sauceda and carving an 'X' on her back.

* * * * *

Carlos knew a good thing when he had it, and he stuck by Jon Kelly, doing odd jobs and putting up signs for the lawyer when he ran for office.204 When Kelly needed someone to persuade a recalcitrant witness to come forward, Carlos had a special knack for getting it done. Carlos could be "convincing," Kelly said with a chuckle.205

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 06:53:10–06:54:00:

Q. When you had a beer with Carlos Hernandez on a hot July afternoon—

A. Sure.

Q. — when somebody needed a little refreshment. Or on other occasions when you were socializing with him or working with him in your endeavors, whether it was your campaigning or work at your home, did he ever intimate to you or suggest to you, hint to you, that he had committed serious crimes, hurt people, anything of that nature?

A. [big pause] Sorta, kinda, maybe. And by that I mean, if he intimated, I would end it immediately. I didn't want to hear it. I didn't want to know about it, and so I didn't need to hear that story. So, if anything was said or was beginning to be said, I would end it. I never was inebriated where I would, you know or had enough to drink where I would allow something like that to be said around me. There was kind of a courtly relationship in terms of . . . . I was the abogado You know? I was the lawyer. And yeah, I mean, you know, he wanted to tell his side or something. I might say, well, they're saying this about you, you know? I don't want to hear, but I think you might want to be aware that this is something that is being said. I remember telling him that a couple times. And, he would start to tell me his side and I would just say, that's it."

Peso Chavez & James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 2, 4, 5, 8, 9:

Carlos Her[n]andez: I don't know if he did it [killed Wanda Lopez]. 1st lesson I learned was never to ask if they did it. . . . [When Carlos would say] Something had happened; he had some problems; I was in public, so I had to cut it off. . . . I never asked what he had done but things came out about what Carlos had done. [One time] He said, "I beat up his girlfriend" (explaining why someone was hostile to him in a cantina). He told me things. He would start to tell me. That led me to tell him to shut up. . . . People say he bragged about things he did. If I could sense it wasn't a time to be around him, I would ask him to leave. He would leave. . . . I wouldn't let him brag. . . . Sure, he [Carlos Hernandez] would've confessed to me. He started to confess to me, but I stopped him. . . . I'd rather not know. If I wanted to, he would've told me.

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 06:30:38–06:31:34, 06:36:40–06:38:02, 06:38:43–06:39:20, 06:48:33–06:49:47, 06:52:11–6:53:10:

Clearly, I was fully aware of Carlos's reputation. Carlos had a rather bad reputation for violence. Personally, other than I would sometimes see the end results because he'd be charged, and I would be told by [Detective] Paul, Rivera, about his violent past and violent nature. But, to be honest, I didn't see that side of him. But obviously, as a criminal lawyer, I wasn't a fool. I understood. . . . But usually the mention of Carlos Hernandez would allow other detectives to make comments. And about Carlos and stuff. I blew it off, but I understood that they truly believed that they knew who Carlos was, that Carlos Hernandez was a dangerous man and that he was someone to reckon with. . . . Carlos Hernandez was known. If someone said, "knife" and "Carlos Hernandez," they'd know exactly what you were saying. If you were an active detective. If you were experienced in patrol in, not so much on the west side, but more on the Mary Street area, you'd know who Carlos was. I mean, come on! They all knew. . . . Well, I mean, I would hear the stories. And I would hear that, you know, that he was extremely violent when he was drinking, and that he was an extremely dangerous person. And it usually involved alcohol . . . But, you know, Carlos Hernandez, drinking . . . I believe the initial crime I represented him on involved alcohol. I believe almost all of his, the alleged crimes, he was involved in did involve some sort of drinking, some time during the evening, whatever evening it was. It usually involved him and alcohol. . . . I didn't think of Carlos Hernandez in those terms, but often the crimes that I remember involved violence to women.

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:26:39–07:29:33 ("At one point [during my investigation of a city councilman,] my son was at home after school, and someone broke into our house. . . . And Carlos found out about it and asked it [sic] he, if I wanted him to look into it. . . . I imagine he would have beaten [the intruder] within an inch of his life. But that didn't need to be done . . . .").

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 06:30:38–06:31:34, 06:36:40–06:38:02, 06:38:43–06:39:20, 6:39:36–6:40:30, 06:48:33–06:49:47, 06:52:11–6:53:10:

Clearly, I was fully aware of Carlos's reputation. Carlos had a rather bad reputation for violence. Personally, other than I would sometimes see the end results because he'd be charged, and I would be told by Paul, Rivera, about his violent past and violent nature. But, to be honest, I didn't see that side of him. But obviously, as a criminal lawyer, I wasn't a fool. I understood. . . . But usually the mention of Carlos Hernandez would allow other detectives to make comments. And . . . about Carlos and stuff. I blew it off, but I understood that they truly believed that they knew who Carlos was, that Carlos Hernandez was a dangerous man and that he was someone to reckon with. . . . Carlos Hernandez was known. If someone said, "knife" and "Carlos Hernandez," they'd know exactly what you were saying. If you were an active detective. If you were experience in patrol in, not so much on the west side, but more on the Mary Street area, you'd know who Carlos was. I mean, come on! They all knew. . . . You don't talk much about other clients to clients, but occasionally, not so much from the clients, but there'd be a case of some violence of some sort. An aggravated assault or something. And you would see Carlos's name mentioned as a possible suspect in a report. Or, maybe his name would come up. . . . Well, I mean, I would hear the stories. And I would hear that, you know, that he was extremely violent when he was drinking, and that he was an extremely dangerous person. And it usually involved alcohol . . . But, you know, Carlos Hernandez, drinking . . . I believe the initial crime I represented him on involved alcohol. I believe almost all of his, the alleged crimes, he was involved in did involve some sort of drinking, some time during the evening, whatever evening it was. It usually involved him and alcohol. . . . I didn't think of Carlos Hernandez in those terms, but often the crimes that I remember involved violence to women.

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 06:30:38–6:31:34, 06:35:00–6:36:16:

I would be told by [Detective] Paul, Rivera, about [Hernandez's] violent past and violent nature. . . . Paul would occasionally, initially especially, would say, "This is a real bad guy. He's been involved in violence for years. He has just an uncontrollable temper, which goes off at times. He's a very dangerous man." And it would be followed up by other detectives. I was socially—my wife at the time was very friendly with the wife of a lieutenant in the police department, or a sergeant, I forget. And, so socially it would come up that I was Carlos Hernandez's lawyer, and it was always lead to comments and talk.

Peso Chavez & James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 7 ("CH [Carlos Hernandez] was notorious. Well known. . . . When [Judge] Jack Blackmon asked me to take the case, his court manager (Car[ol]) said I should know who CH was. DA said the same thing. They let me know at the time he was a real slime. I know they let me know that CH was a bad guy. Very notorious.").

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 06:54:00:

I mean, if [Hernandez] intimated, I would end it immediately. I didn't want to hear it. I didn't want to know about it, and so I didn't need to hear that story. So, if anything was said or was beginning to be said, I would end it. I never was inebriated where I would, you know or had enough to drink where I would allow something like that to be said around me. There was kind of a courtly relationship in terms of—I was the abogado You know? I was the lawyer. And yeah, I mean, you know, he wanted to tell his side or something. I might say, well, they're saying this about you, you know? I don't want to hear, but I think you might want to be aware that this is something that is being said. I remember telling him that a couple times. And, he would start to tell me his side and I would just say, that's it.")

Peso Chavez & James S. Liebman Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 3 ("I'm sure he was involved in other killings I hear[d] that.");

Peso Chavez & James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 2, 4, 5, 8, 9:

Carlos Her[n]andez: I don't know if he did it [killed Wanda Lopez]. 1st lesson I learned was never to ask if they did it. . . . [When Carlos would say] Something had happened; he had some problems; I was in public, so I had to cut it off. . . . I never asked what he had done but things came out about what Carlos had done. [One time] He said, "I beat up his girlfriend" (explaining why someone was hostile to him in a cantina). He told me things. He would start to tell me. That led me to tell him to shut up. . . . People say he bragged about things he did. If I could sense it wasn't a time to be around him, I would ask him to leave. He would leave. . . . I wouldn't let him brag. . . . Sure, he [Carlos Hernandez] would've confessed to me. He started to confess to me, but I stopped him. . . . I'd rather not know. If I wanted to, he would've told me.

Peso Chavez & James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 3, 6:

I'm sure he [Hernandez] was involved in other killings I hear[d] that . . . . [Detective] Paul Rivera told me Carlos Hernandez committed other crimes. Paul resented that I got him [Hernandez] off [after Hernandez was charged with the Dahlia Sauceda killing in 1986]. Carlos had a reputation, and that reputation was probably well deserved. There was a litany of crimes (murders) that CH [Carlos Hernandez was said to have] committed. Not sure he committed all of them. . . . They [police] had a litany of sins they thought Hernandez had committed.

Peso Chavez & James S. Liebman Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 2–5:

Carlos Hernandez as person: At times very pleasant. Relatively thick Hispanic acc[]ent. Could be somewhat charming. Extremely violent temper. I'm sure you've heard that. Ungovernable temper after consumption of large amount of alcohol. Also used marijuana. Not coke. He would drink to excess and make mistakes. . . . For a street thug, he was very dependable. . . . I imagine he could be violent, merciless. People gave him a wide berth. . . . When he got angry, people could tell it and they gave him a wide berth. . . . Carlos H. worked minor construction until he got bored, then would [quit]. If no other way of getting money, he might steal. But he would work before stealing. Violent man . . . Occasionally he was around my children. He came around my house. As long as he was sober he was okay. [He] was not that bad. He took a bath before court and kept his mouth shut, just like a lawyer would ask. . . . Tough guy. Mexican. Let it be known he was tough. Nobody bothered him. I'm not sure he's the villain you all want to make him out to be. . . . He did what I said: shut up, don't talk to the cops; come to court clean. He was everything a lawyer could want. . . . He could be frightening. I saw that. Someone he didn't like, and vice versa; CH [Carlos Hernandez] responded in kind. I knew it was time to leave. . . . Carlos was not liked. Why? I imagine because he was dangerous. He was not the prince of peace. I enjoyed dealing with him. I treated him with respect. He did things for me.

See supra note 193.

See supra note 193.

See supra note 193.

Peso Chavez & James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 7:

CH [Carlos Hernandez] was notorious. Well known. . . . When Jack Blackmon asked me to take the case, his court manager said I should know who CH [Carlos Hernandez] was. DA said the same thing. They let me know at the time he was a real slime. I know they let me know that CH was a bad guy. Very notorious. As of 1983, [Detectives] Rivera and Garza knew of CH. They never liked him. . . . Anyone in homicide [at the Corpus Police Department] w[ou]ld know who CH was. If you worked that area of town, they'd know.

Def.'s Mot. for Discovery, Texas v. Hernandez, No. 86-CR–1032-B (Nueces Cty., 117th Dist. Tex. Dec. 2, 1986) at 1–2.

Def.'s Mot. to Dismiss, Texas v. Hernandez, No. 86-CR–1032-B (Nueces Cty., 117th Dist. Tex. Dec. 30, 1986) at 1:

The Nueces County District Attorney's Office is to provide Defendant Carlos Hernandez by and through his attorney of record, with the tape recording of the conversation between Defendant Carlos Hernandez and his mother made by the Corpus Christi Police Department during the period of Defendant Carlos Hernandez' interrogation in the month of December, 1979. . . . The District Attorney's Office is to provide Defendant Carlos Hernandez with a transcript of the conversation and interview between Asst. District Attorney Kenneth Botary and Defendant Carlos Hernandez, made on or about January 4, 1980.

See supra note 43 and accompanying text.

Order Granting Mot. to Dismiss, Texas v. Hernandez, No. 86-CR–1032-B (Nueces Cty., 117th Dist. Tex. Dec. 31, 1986) at 1:

[I]t appearing to the Court that the State was not ready for trial within 150 days . . . and it further appearing to the Court that there would be serious questions involving the availability of witnesses, the Court finds that the Defendant's motion should be granted. It is, therefore, ordered, adjudged, and decreed that the indictment herein is dismissed and the Defendant is ordered discharged.

See James S. Liebman's Notes on Interview with Bill May, Corpus Christi Criminal Defense Lawyer and Former Assistant District Attorney (July 13, 2004) at 1 (noting that he was the Assistant District Attorney assigned to the 1986 proceedings against Carlos Hernandez, and that the case had been dismissed because Kenneth Botary had taken possession of, and then lost, the tape recording of Hernandez's discussion with his mother and the transcript of his conversation with Carlos).

Def.'s Mot. to Dismiss, Texas v. Hernandez, No. 86-CR–1032-B (Nueces Cty., 117th Dist. Tex. Dec. 30, 1986) at 2:

No effort was made to ascertain or discover whether there still existed a tape recording of the conversation between Carlos Hernandez and his mother made at the Corpus Christi Police Department during Defendant Hernandez' interrogation in December, 1979. . . . That the District Attorney's Office failed to make any attempt to locate a transcript of the conversation and interview between assistant District Attorney Kenneth Botary and Carlos Hernandez made in January of 1980.

Peso Chavez & James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 1 ("Hernandez case. He remembers getting a dismissal near Xmas 1986. It was on TV when CH [Carlos Hernandez] walked. Channel 6 (has offices on Staples near downtown). Newsman got interested because Carlos was in jail for so long. I would make a lot of noise, and that probably caught the newsman's ear. . . . News tape showed Carlos Hernandez walking away. JK [Jon Kelly] remembers saying something about "it's xmas" when asked why the judge did it. Reporter gave a run down of how long it had taken to try the case.").

James S. Liebman's Notes on Interview with Bill May, Corpus Christi Criminal Defense Lawyer and Former Assistant District Attorney (July 13, 2004) at 1 (noting that he was the Assistant District Attorney assigned to the 1986 proceedings against Carlos Hernandez, and that the case had been dismissed because Kenneth Botary had taken possession of, and then lost, the tape recording of Hernandez's discussion with his mother and the transcript of his conversation with Carlos).

Peso Chavez & James S. Liebman's Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 4, 6 ("When I was running for office, I had him [Carlos Hernandez] put up signs. He would do it."; "When CH [Carlos Hernandez] was sober, he was relatively pleasant. He did work at my house.").

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez, in Corpus Christi, Texas (Dec. 9, 2004) at 07:32:08–07:33:54 ("Q. You said that you used Carlos Hernandez to do some investigation for you, to provide information. A. Sure I did.");

Peso Chavez & James S. Liebman Notes on Interviews with Jon Kelly, Lawyer for Carlos Hernandez (Aug. 16, 18, 20, 2004) at 5, 8, 9:

If I needed information in the community, he [Carlos Hernandez] could get it. People didn't lie to him[.] Could use his information in court. You could rely on it. People told him things because they were scared. 2 or 3 things he told me were useful to me in very serious cases where I made serious money. Mary St. was very violent, and he could get me information there. . . . Carlos did what I asked. He did me favors. I'd say, "Carlos, do you know about a guy name xxx." He would come back. . . . [The professional investigators in town who were Hispanic] were lifers, in Army security—elite; their Spanish would stick out in the barrio. By contrast, Carlos H[ernandez] knew how to talk to people in the barrio. He was convincing (laughs). I asked him to find out, and he would find out. . . . Maybe he got me information. I offered him money for it. He said no, you'll do m[e] a favor some time; buy me a beer. . . . He [Hernandez] helped me on 2 or 3 cases. I wouldn't have gotten information in those cases without him.

Chapter 7
Page: 12 of 18