Chicago Tribune
Series on
Carlos De Luna's Innocence
Part 1 Part 2
Sidebar Part 3
Chicago Tribune, June 25,
2006
'I didn't do it.
But I know who did'
New evidence suggests a 1989 execution in Texas
was a
case of mistaken identity. First of three parts.
By Steve Mills and Maurice Possley
Tribune staff reporters
CORPUS CHRISTI, Texas - For many years, few questioned
whether Carlos De Luna deserved to die.
His execution closed the book on the fatal stabbing of
Wanda Lopez, a single mother and gas station clerk whose final, desperate
screams were captured on a 911 tape. Arrested just blocks from the bloody
crime scene, De Luna was swiftly convicted and sentenced to death--even
though the parolee proclaimed his innocence and identified another man as
the killer.
But 16 years after De Luna died by lethal injection,
the Tribune has uncovered evidence strongly suggesting that the
acquaintance he named, Carlos Hernandez, was the one who killed Lopez in
1983.
Ending years of silence, Hernandez's relatives and
friends recounted how the violent felon repeatedly bragged that De Luna
went to Death Row for a murder Hernandez committed.
The newspaper investigation, involving interviews with
dozens of people and a review of thousands of pages of court records,
shows the case was compromised by shaky eyewitness identification, sloppy
police work and a failure to thoroughly pursue Hernandez as a possible
suspect.
These revelations, which cast significant doubt over De
Luna's conviction, were never heard by the jury.
His case represents one of the most compelling examples
yet of the discovery of possible innocence after a prisoner's execution.
Presented with the results of the newspaper's inquiry,
De Luna's prosecutors still believe they convicted the right man. But the
lead prosecutor acknowledged he is troubled by some of the new
information.
And a former police detective told the Tribune that he
got tips about Hernandez shortly after the crime and now believes the
wrong man was executed.
Missing from this case is DNA or some other kind of
evidence that could provide conclusive proof of De Luna's guilt or
innocence. The store wasn't equipped with a security camera that could
have captured images of the killer.
The newspaper learned of De Luna from a Columbia
University law professor who had begun to dig up evidence that pointed to
Hernandez, who died in 1999.
The possibility of De Luna's innocence played no role
in his final appeal, which focused on his lawyers' failure to present any
mitigating evidence at his sentencing.
When that failed, and when Texas' governor declined to
grant him clemency, De Luna, 27, quietly accepted his fate a few minutes
after midnight on Dec. 7, 1989. He thanked the warden for being treated
well by the guards and prayed on his knees with the death-house chaplain.
Strapped onto the gurney, chemicals flowing into his
veins, De Luna didn't close his eyes. After 15 seconds, he jerked his head
up and apparently tried to speak.
Ten more seconds passed. De Luna raised his head again
and stared into the chaplain's eyes. De Luna tried again to speak but
failed and soon lost consciousness.
The moment was seared into the chaplain's memory. What,
he still wonders, was De Luna trying to say?
SCREAMS FOR HELP
On a cool Friday in February 1983 just after 8 p.m.,
George Aguirre pulled his van into a Sigmor gas station on South Padre
Island Drive, a four-lane thoroughfare flanked by strip malls and
fast-food restaurants that leads from downtown Corpus Christi to the Gulf
of Mexico.
While he was pumping gas, Aguirre would later testify,
a man standing outside the station with a beer can in his hand slid a
knife, the blade exposed, into his pocket and approached.
The man asked for a ride to a nightclub.
When Aguirre refused, the man walked back to the side
of the station, and Aguirre went inside to warn Lopez, 24, the clerk.
She said she would call the police, and Aguirre, the
only customer in the station, left. When Lopez did call, a dispatcher said
officers could do nothing unless the man came inside.
Minutes later, when he did, Lopez redialed police, and
dispatcher Jesse Escochea took the call.
"Can you have an officer come to 2602 South Padre
Island Drive?" she asked, according to a tape of the call. "I have a
suspect with a knife inside the store."
"Has he threatened you in any way?" Escochea asked.
"Not yet," Lopez said, her voice rising in alarm. Then,
apparently speaking to the man at the counter, she asked, "Can you give me
just a minute?"
"What does he look like?" Escochea asked.
"He's a Mexican," Lopez said, dropping her voice.
"Standing right here at the counter."
"Huh?" Escochea said.
"Can't talk," she said in a near-whisper. To the man,
she said, "Thank you."
"Don't hang up, okay?" Escochea said.
"Okay," Lopez said. Then, to the man: "Eighty-five
cents."
"Where is he now?" Escochea asked.
"Right here," Lopez replied.
"Is he a white male?"
"No."
"Black?"
"No."
"Hispanic?"
"Yes," she said.
"Tall? Short?" Escochea asked.
"Uh-huh," said Lopez, her voice straining to remain
calm.
"Tall?"
"Tall."
"Thank you," she said to the man at the counter.
Escochea continued: "Does he have the knife pulled
out?"
"Not yet!" Lopez said.
"Is it in his pocket?"
"Uh-huh," she said.
"All right," Escochea said. "We'll get someone over
there."
Suddenly, Lopez shouted in a panic, "You want it? I'll
give it, I'll give it to you! I'm not gonna do nothing to you! Please!"
As the telephone banged to the floor, Escochea issued
an urgent call: "Got an armed robbery in progress going down!"
In the background, Lopez was screaming.
About the same time, Kevan Baker, a car salesman,
pulled into the station to buy gas for his 1967 Mercury Cougar. As he
grabbed a gas nozzle, he heard a bang on the station window.
When he looked toward the station, Baker was startled
to see a man struggling with a woman.
Lopez was bent over at the waist, and the man was
yanking on her shoulder-length hair, dragging her toward a storeroom
behind the counter.
"As I turned and saw them and started walking toward
the door, he threw her down and proceeded to meet me at the door," Baker
later testified.
"Don't mess with me. I've got a gun," the man told
Baker.
The two locked eyes for a couple of seconds, Baker
said, then the man took off.
As the attacker fled on foot, Lopez staggered out the
door.
"Help me," she moaned, sliding to the pavement. "Help
me."
Baker ran into the station and grabbed paper towels to
try to stop the bleeding from the stab wound in her left side. As he came
out of the station, the first police car arrived.
Officer Steve Fowler rushed to Lopez.
"I bent over and asked her what had happened. But when
I saw her condition, I just--that was it,"
Fowler later testified. "I just didn't bother asking
anything else. . . . She was dead."
BLOODY CRIME SCENE
About 40 minutes after the attack, police converged on
a truck parked on a side street a few hundred yards from the station.
"Don't shoot! You got me!" De Luna shouted.
He was lying shirtless and shoeless in a puddle of
water under the pickup when the officers pulled him onto the lawn of a
nearby house. He had $149 in his pocket.
They handcuffed him, put him in the rear of a squad car
and drove him to the Sigmor. Aguirre and Baker separately were led to the
car, where an officer shone a flashlight into De Luna's face.
Both men identified him as the person they had seen at
the station.
As police drove De Luna to jail, he grew agitated.
"I'll help you, if you help me," he repeatedly told the officers,
according to a police report.
They ignored him, and finally he blurted out: "I didn't
do it. But I know who did."
After Lopez was taken to the hospital, evidence
technician Joel Infante and Detective Olivia Escobedo began processing the
crime scene, a task that was completed in about an hour.
The station, particularly the area behind the counter,
was a bloody mess, with spatters on the machine used to activate the gas
pumps as well as large smears and pools on the floor.
Lopez's bloodstained flip-flops were behind the
counter, where they apparently had come off during the struggle.
Crime scene photographs show a folding knife, its blade
exposed, on the floor near the station's safe. Three $5 bills were
scattered behind the counter. A pack of cigarettes sat on top of it.
In a recent interview, Infante, now retired, said his
job was to follow Escobedo's directions, taking photographs as well as
dusting for fingerprints.
Infante said he found three fingerprints inside the
station--two on the front door and one on the telephone. But all were of
such poor quality that they were worthless.
He was unable to get fingerprints from the knife found
on the floor or from the pack of cigarettes on the counter. Infante took
no samples of the blood inside the station.
The day after the murder, a man who lived near where De
Luna was arrested found a white shirt and shoes that apparently belonged
to De Luna.
The clothes and shoes--as well as swabs from his
face--were sent to the state crime lab for testing. No blood was found.
HISTORY OF TROUBLE
By the time of his first arrest at 15, Carlos De Luna
was a 7th-grade dropout who liked to sniff paint and glue.
His rap sheet eventually would include nearly two dozen
crimes, mostly offenses such as public drunkenness, disorderly conduct,
auto theft and burglary. He was in and out of juvenile detention, but it
wasn't until a 1980 arrest that he faced time in an adult prison.
He was then living with relatives in Dallas and working
at a Whataburger franchise. Charged with attempted aggravated rape and
driving a stolen vehicle, he pleaded no contest and was sentenced to 2 to
3 years.
Paroled in May 1982, De Luna returned to Corpus
Christi. Not long after, he attended a party for a former cellmate and was
accused of attacking the cellmate's 53-year-old mother. She told police
that De Luna broke three of her ribs with one punch, removed her
underwear, pulled down his pants, then suddenly left.
He was never prosecuted for the attack, but authorities
sent him back to prison on a parole violation. Released again in December
of that year, he came back to Corpus Christi and got a job as a concrete
worker.
Almost immediately, he was arrested for public
intoxication. During the arrest, De Luna allegedly laughed about the
wounding of a police officer months earlier and said the officer should
have been killed.
Two weeks after that arrest, Lopez was murdered.
After authorities charged De Luna with the slaying, the
court appointed Corpus Christi attorney Hector De Pena Jr. to defend him.
Because this was De Pena's first capital case, James Lawrence, an attorney
with death penalty defense experience, was assigned to the case.
It wasn't until five weeks before trial that Lawrence
met with De Luna to hear his account of what happened. Lawrence then
requested that the court pay $500 for a private investigator.
De Luna told Lawrence that on the day of the crime, he
cashed his $135.49 paycheck from his construction job and drank beer with
friends. That night, he said, he was at a skating rink talking with two
women and left to walk toward a nightclub to find someone to give him a
ride home.
He said he was at the nightclub, across from the Sigmor
station, when he heard sirens. Because he had been paroled from prison
only weeks earlier, he panicked and ran.
"I remember our client said, `I didn't do it. I had to
run because I saw what was happening, and no one was going to believe
me,'" Lawrence recalled.
While fleeing, he lost his shirt as he scaled a fence,
De Luna said. He also lost his shoes, though he never explained in court
how or why.
As the trial approached, Nueces County prosecutor Steve
Schiwetz offered De Luna the same deal he said he offered other capital
murder defendants: plead guilty in exchange for a life sentence.
"I would always be inclined to try to let a person try
to save his life," Schiwetz recalled.
But De Luna turned down the deal, insisting he was
innocent.
The defense strategy was to challenge the state's
eyewitness identification of De Luna. They noted that on the night Lopez
was killed, the first descriptions broadcast over the police radio
mentioned a Hispanic male in a gray sweatshirt or flannel shirt, not the
white dress shirt police said De Luna was wearing that night.
They also intended to emphasize crime lab tests that
failed to turn up a single drop of blood on the white shirt and shoes --
surprising given the bloody crime scene and Baker's account of the
struggle between Lopez and her attacker.
On the eve of trial, De Luna suddenly expanded on his
claim of innocence by saying he left the skating rink with an acquaintance
that night.
De Luna told his lawyers that on their way to the club
the man went to the station to buy a pack of cigarettes, which sold for 85
cents--the same amount Lopez is heard saying on the 911 tape shortly
before she was stabbed.
This man, De Luna said, was the real killer, and his
name was Carlos Hernandez.
De Luna's attorneys passed on Hernandez's name to the
prosecution. But Lawrence and De Pena can't recall whether they or their
investigator pursued the possibility that Hernandez killed
Lopez--apparently leaving it to the state to check out their own client's
alibi.
While De Luna would later testify that he had first met
Hernandez when they were teenagers, the exact nature of their
relationship--whether they were good friends or just acquaintances--is
difficult to sort out.
What the lead prosecutor, Schiwetz, recalls is that De
Luna's lawyers told him their client had met Hernandez in jail. Nueces
County records were pulled and sent to lead detective Escobedo.
When they showed that the men were never in jail at the
same time, Schiwetz didn't pursue De Luna's claim further.
Convinced that De Luna was a liar, Schiwetz had reason
to be confident going to trial in July 1983. He effectively destroyed the
part of De Luna's alibi that on the night of the crime he was at the
roller rink talking to two women. Under Schiwetz's questioning, one of the
women testified that she was not at the rink but at her baby shower. And
she had photos to prove it.
As for De Luna's claim that Hernandez committed the
murder, Schiwetz in his closing argument ridiculed that as well.
Hernandez, he told the jury, was a "phantom."
Yet Hernandez was well-known to authorities, especially
to the co-prosecutor at Schiwetz's side.
Feared for his violent temper, Hernandez had another
distinguishing characteristic: He was particularly fond of knives.
Chicago Tribune, June 26, 2006
A phantom, or the killer?
A prosecutor said Carlos Hernandez didn't exist. But
he did, and his MO fit the crime. Second of three parts.
By Steve Mills and Maurice Possley
Tribune staff reporters
CORPUS CHRISTI, Texas - By the time jurors sat down to
decide the fate of Carlos De Luna, there was little to debate.
Though no physical evidence linked him to the fatal
stabbing of gas station clerk Wanda Lopez, two eyewitnesses did. One said
he observed De Luna outside the station with a knife; the other said he
saw him leaving the blood-spattered scene. Then there was the audio
recording of Lopez's 911 call, which gave little clue to the killer's
identity but graphically documented the attack and Lopez's frantic
screams.
"I had nightmares about it for a long time," one juror,
Shirley Bradley, recalled. "That tape had a shock-value effect on us. ...
It was a clear-cut case."
Finally, jurors rejected De Luna's testimony that
another man, Carlos Hernandez, was the real killer. The lead prosecutor
scoffed at De Luna's assertion, calling Hernandez a "phantom."
But the jurors who found De Luna guilty and then
sentenced him to death in July 1983, five months after his arrest, didn't
hear the whole truth.
Hernandez did exist. Not only was he well-known to
police in this Gulf Coast city as a violent felon, but the co-prosecutor
at De Luna's trial and the lead detective in the case knew Hernandez too.
Four years earlier, they confronted him when he emerged
as a leading suspect in a case they handled together--the murder of
another Corpus Christi woman.
Jurors heard none of that information. The prosecutor
sat silently as his colleague branded Hernandez a figment of De Luna's
imagination.
Yet a Tribune investigation shows that the
circumstances of Lopez's murder eerily echo the details of Hernandez's
lengthy rap sheet--gas station robberies, knife attacks and several
assaults on women.
In 1979, he was arrested as a suspect in the slaying of
a woman found strangled in her van, an "X" carved in her back, but was
released for lack of evidence.
Two months after Lopez's murder on Feb. 4, 1983,
Hernandez was arrested while lurking behind a convenience store. In his
pocket was a knife.
And over the next six years, while De Luna waited in
vain for his legal appeals to keep him from the execution chamber,
Hernandez's list of crimes continued to grow.
A SHORT FUSE
The Hernandez home on Carrizo Street, just a few blocks
from Corpus Christi's tired downtown, was in the 1980s a place of drunken
arguments and violence, much of it perpetrated by Carlos Hernandez.
"Every time there was a fight, there was blood,"
recalled Priscilla Jaramillo, one of Hernandez's nieces, who lived in the
house for several years. "That home on Carrizo Street was nothing but
blood."
The patriarch of the family, Carlos Hernandez Sr., was
sent to prison in 1960 on a rape conviction. His eldest son, Carlos Jr.,
was 5 at the time. After being released, his father never came home.
The matriarch, Fidela Hernandez, took out life
insurance on all six of her children, collecting on four. She
matter-of-factly describes their fates:
Her youngest son, Efrain, was murdered in 1979. Her
eldest daughter, Pauline, died of cancer in 1996. Another son, Javier, was
slain in 1997. And then there was Carlos, whom she kicked out of the house
when he was 16 because Javier and he fought so much. He died in prison in
1999.
Gerardo Hernandez, 50, the only surviving son,
describes their home life this way: "We were not a family. We were
dysfunctional in every way."
He fled as a teenager and now lives in California. "I
had to get away from them as fast as I could," he said.
Family members portray Carlos Hernandez as a man with a
vicious streak, particularly when he was drinking. He had a particular
fondness for a knife with a folding lock blade, the kind that killed
Lopez. He constantly sharpened it on a whetstone, family members and
friends recall, and demonstrated its keenness by shaving hair off his
forearms.
"He could pop that sucker out real quick," said
Marshall Lester, a Hernandez friend. "He slept with it and everything. He
had it with him at all times. . . . And he was real quick about stabbing
people. He'd get angry real quick if something didn't go his way."
Hernandez's first major brush with the law came at age
16 when he was found delinquent for drunken driving and negligent
homicide. Driving home from a party with his sister and her fiance, he
slammed into another car at more than 100 miles an hour, killing the
fiance.
In the years to come, his rap sheet grew as he was
arrested for sniffing paint, stealing a car and three robberies--all at
gas stations.
The robberies got him a 20-year prison sentence at age
18. He served less than six years, and after returning to Corpus Christi
in 1978, he held a series of laborer jobs, drank heavily and continued to
brawl.
Jon Kelly, an attorney who represented Hernandez in the
late 1970s and '80s, said Hernandez was one of the most frightening men he
knew. Kelly recalled a time when he mentioned to Hernandez that a client
owed him money. Hernandez talked to the man, and the bill was paid.
After that, Kelly said they would sometimes meet for a
drink or smoke marijuana together. Kelly remembers walking into a tough
bar and "everybody stopped and stepped back. . . . It was because of
Carlos."
In November 1983, four months after De Luna was sent to
Death Row, Hernandez was arrested for assaulting his wife, Rosa Anzaldua,
with an ax handle, according to police reports.
He also shattered a window, sending a shower of glass
onto one of Anzaldua's three sleeping children. Hernandez threatened to
kill her and the children.
He was sentenced to 30 days in jail. She filed for
divorce.
ON DEATH ROW
Carlos De Luna spent his time on Death Row working in a
prison shoe shop, taking correspondence courses in business, and writing
letters to his family. He also found himself in a familiar kind of
trouble.
In 1984, guards discovered De Luna and another inmate
sniffing glue. The guards seized a bottle of glue and a bottle of paint
thinner.
Two years later, De Luna came within 13 hours of
execution before a federal judge granted a stay to allow another legal
challenge. In that appeal, De Luna for the first time asserted that his
trial lawyers failed to investigate Hernandez as Lopez's killer.
Through it all, De Luna tried to stay upbeat during
visits with relatives, according to a half sister, Mary Arredondo. Mostly,
she said, they stuck to small talk about family matters. Inevitably,
though, the conversation turned to De Luna's case.
"I always asked him. He said Carlos Hernandez did it,"
Arredondo recalled. "I asked him why he ran. He said that he was on parole
and didn't want to go back to jail."
By June 1988, De Luna had been on Death Row for nearly
five years and was despairing.
"I sometimes sit here at night, and I cry to myself,"
he wrote, "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 anyone but myself and I accept
that," he added, "that is why I [will] accept it if the state of Texas
decides to execute me."
ANOTHER ATTACK
While De Luna sat on Death Row, Hernandez was on the
streets of Corpus Christi and often back in court, facing allegations that
he had attacked women.
In 1986 a grand jury indicted him in the strangulation
murder seven years earlier of Dahlia Sauceda. Police had discovered the
naked body of Sauceda--an "X" carved in her back--in her van in a parking
lot. Her 2-year-old daughter was asleep next to her.
When her body was discovered in 1979, police found
Hernandez's fingerprint on a beer can in the van along with a pair of his
boxer shorts. He was arrested and questioned.
At first Hernandez told police he had not seen Sauceda
in months. A day later he said he had been in the van with Sauceda and had
sex with her. But he insisted he did not kill her, and police, saying they
didn't have enough evidence, let him go.
When another man was charged with the murder, his
defense lawyer asserted that Hernandez was the real killer. Prosecutor Ken
Botary--later the co-prosecutor in De Luna's trial--interviewed Hernandez
in his office before the trial.
Hernandez was brought to that tape-recorded interview
by Detective Olivia Escobedo, who would be the lead investigator in Wanda
Lopez's murder. At trial, Botary cross-examined Hernandez. The defendant
was acquitted.
When Hernandez was later charged with Sauceda's murder,
police said they had new evidence: His girlfriend, Diana Gomez, told them
he had confessed to the murder.
Gomez said Hernandez told her that he had killed
Sauceda because she was having an affair with Hernandez's brother-in-law
Freddy Schilling.
"He carved the `X' in her back with a knife," according
to a police account of Gomez's statement.
A judge later dismissed the murder charge because
prosecutors couldn't find the tape of Botary's interview with Hernandez.
Two decades later, Fidela Hernandez, now 80, says she
believes her son was innocent of the Sauceda killing. "He got on his
rodillas [knees] and said, `Mama, I didn't do it,'" she said in an
interview. "But Carlos, if he killed her, he had a right to kill her.
Freddy didn't take care of my daughter."
THE FINAL HOURS
After years of failed appeals, De Luna lost his final
bid for clemency on Dec. 6, 1989.
By then, prison guards had moved him to the holding
cell just steps from the execution chamber in Huntsville. It was there
that he met death-house chaplain Carroll Pickett. A Presbyterian minister,
Pickett had counseled 32 other prisoners in the seven years since Texas
resumed executions in 1982.
As he had with each prisoner, Pickett explained to De
Luna every detail of what would take place in the coming hours: how the
warden would come and say it was time to go; how there were eight steps
from the holding cell to the door of the execution chamber, five more to
the gurney; how guards would strap him down; and then, finally, how the
warden would remove his glasses to signal for the flow of lethal chemicals
to begin.
De Luna's only question for Pickett was whether it
would hurt when the needles were inserted in his arm.
Later that day, De Luna, the youngest of nine children,
visited with family members--his sister Rose, her fiance, a half brother
and his wife.
Shortly before 5 p.m., the U.S. Supreme Court turned
down his appeal. De Luna showered and donned dark blue pants and a light
blue shirt.
Increasingly anxious, he asked Pickett if he could call
him daddy. "I never had a daddy," Pickett said De Luna told him. "You are
like my daddy should have been."
About 7 p.m., after the governor denied De Luna's
clemency request, Pickett talked to him about the crime. In ministering to
condemned prisoners, Pickett had learned that, in their last hours, most
inmates, even those who would claim innocence in a final statement, would
confide their guilt to him.
"I'm the last person they're going to talk to," Pickett
said in an interview, "so they feel they can finally talk about it."
De Luna told him he was innocent.
Shortly before 10 p.m., De Luna asked to make a call to
a former Corpus Christi TV reporter who had covered the trial and kept in
touch in the years afterward.
"We both knew there was no hope at that point," the
reporter, Karen Boudrie, said. "I asked him pointblank: Is there anything
you want to get off your chest?
"He said, `I'm not the bad guy they say I am,'" she
recalled. "He said, `I didn't do it.'"
Around 11 p.m., De Luna looked at Pickett and said,
"Let's get serious."
They grasped hands through the cell bars, and De Luna
asked Pickett to pray that he would be strong in his last minutes and that
he would be quickly received into heaven.
When they began, Pickett noticed, De Luna was sitting
on the side of the bunk; by the end, he had dropped to his knees on the
cell's cold concrete floor.
"A little after 12, the signal came. I stepped back,"
Pickett recalls in a recording he made shortly after the execution. "The
doors opened. I walked into the death chamber, the death house itself.
Carlos followed behind me."
De Luna climbed onto the gurney. "As he laid down, he
said, `Are you here, chaplain?' I had assured him I would be. He asked me
to hold his hand. . . . I told him he had done fine," Pickett says on the
tape. "And he said, `This is not so bad.'"
After the witnesses to the execution filed in, the
warden asked: "Carlos De Luna, do you have any last words?" De Luna made
no reference to the slaying of Wanda Lopez. "I want to say that I don't
hold any grudges," he said as part of his short final statement.
At that, the warden removed his glasses.
"After about 10 seconds, [De Luna] raised up his head
and looked at me with those big brown eyes," Pickett says on the tape.
"The warden looked at me, and I looked at him. He was concerned. I was
concerned. Something was not going right. Because he should have been
asleep.
"After about 10 seconds more, he raised his head up
again. He looked square in my face and my eyes. I just simply squeezed his
leg. I don't know what he was trying to say. I wish I did.
"This bothers me and probably will forever and ever.
Because nothing was happening. I had told him, I had promised him it
wouldn't hurt, it wouldn't take long. Now we were more than 25 seconds
into it, and he was still able to raise his head up and look. I was
sickened."
Pickett looked at the tube running into De Luna's
veins. He could see the bubbles indicating where each chemical ended and
the next began.
More than 9 minutes passed.
"He gave a couple of exhales, and that was it." At
that, the doctors came in and declared De Luna dead. It was 12:24 a.m.
"The first injection began at 12:14," Pickett spoke
into the tape recorder later. "This was 10 minutes. Too long. Way. Too.
Long."
Partly as a result of watching De Luna's execution,
Pickett eventually became an activist against the death penalty.
"This one I wonder: What was he trying to tell me, if
anything, when he raised up his head? ... What did he say? What did he
think?
"Whatever," Pickett added, "Carlos De Luna did not need
those extra minutes and certainly not those extra 25 seconds. That I will
never forget."
LEAVING NO VICTIMS
By the time De Luna was executed, Hernandez was on his
way back to prison for another knife attack on a woman. He had sliced Dina
Ybanez, a friend, from her navel to her sternum.
Hernandez was living in Ybanez's garage, baby-sitting
her children in the daytime. During a quarrel, Ybanez told police,
Hernandez pulled a knife out of his back pocket and attacked her. He ran
away but was arrested a short distance away, wearing bloody jeans.
"He told me he was going to kill me," Ybanez said in a
recent interview, "because he wasn't used to leaving live victims."
Hernandez pleaded guilty to the assault and was
sentenced to 10 years in prison. He served less than two years before he
was paroled and moved back to Corpus Christi.
Hernandez went to prison for the last time in 1996
after he assaulted a man. When police arrested him, he was carrying two
knives.
He never got out. Years of heavy drinking finally
caught up to him in the spring of 1999, at age 44. Suffering from
cirrhosis, he was confined to a prison infirmary outside Texarkana.
On the evening of May 6, 1999, he died, and his body
was taken to the inmate cemetery in Huntsville. His mother would not bring
his casket home.
She said she told the prison authorities: "Bury him in
the dirt there."
Chicago Tribune, June
26, 2006
Sidebar: A prosecutor's silence
Co-prosecutor knew of Hernandez. He now says he
should have told his partner.
By Maurice Possley and Steve Mills
Tribune staff reporters
When lead prosecutor Steve Schiwetz told a jury that a
man named Carlos Hernandez was a "phantom" and not the killer of gas
station clerk Wanda Lopez, his coprosecutor sat nearby and said nothing.
Yet Ken Botary, a veteran of the Nueces County district
attorney's office, was, by his own account, well aware of Hernandez and
his reputation for violent acts here.
Three years earlier, Botary had prosecuted another
murder case and lost after defense lawyers argued that Hernandez was the
real killer. Botary interviewed Hernandez before that trial and
cross-examined him on the witness stand. Botary was even called to testify
about his interview of Hernandez.
Just before trial, Carlos De Luna's lawyers identified
Hernandez as Lopez's real killer. From that point on, any information
about Hernandez was critical to the defense. Botary knew that a prosecutor
has a duty to disclose evidence favorable to the defense and that failure
to do so can be cause for an appeals court to set aside a conviction and
order a new trial.
Schiwetz said Botary never told him about Hernandez. By
remaining silent, Botary allowed Schiwetz to misinform De Luna's jury.
In a series of interviews, Botary offered changing
explanations of how he handled the information about Hernandez.
"I got the name right off the bat," Botary said. "I
knew Carlos Hernandez was a dangerous man."
But Botary, now a criminal defense lawyer in Corpus
Christi, says he may not have associated the Hernandez mentioned by De
Luna's lawyers with the man he had interviewed and cross-examined in the
earlier murder case.
He acknowledged that had he been De Luna's lawyer at
the time, he would have wanted to know the information. "I think I should
have told Schiwetz," Botary said.
In Botary's defense, Schiwetz noted that at the time of
De Luna's trial, prosecutors in Corpus Christi carried heavy caseloads, so
his colleague simply may not have made the connection.
But, Schiwetz added, if Botary had told him, he would
have alerted the defense and never called Hernandez a phantom.
Chicago Tribune, June 27,
2006
The secret that wasn't
Violent felon bragged that he was real killer.
Last
of three parts.
By Steve Mills and Maurice Possley
Tribune staff reporters
CORPUS CHRISTI, Texas - It was a secret they all
shared. Some kept it out of fear. Some because no one ever asked. Whatever
their reasons, it was a secret that might have saved Carlos De Luna from
the execution chamber.
Twenty-three years after Wanda Lopez was murdered in
the gas station where she worked, family members and acquaintances of
another man, Carlos Hernandez, have broken their silence to support what
De Luna had long asserted: Hernandez, a violent felon, killed Lopez in
1983.
A Tribune investigation has identified five people who
say Hernandez told them that he stabbed Lopez and that De Luna, whom he
called his "stupid tocayo," or namesake, went to Death Row in his place.
They also say he admitted killing another woman, in
1979, a crime for which he was indicted but never tried.
Although some aspects of De Luna's actions on the night
of Lopez's killing remain suspicious, the Tribune uncovered substantial
evidence that undermines his conviction. Among the findings:
The only witness who came face to face with the killer
at the station after Lopez was stabbed now says he was not positive of his
identification of De Luna. He identified De Luna, he said, after police
told him they had arrested De Luna hiding under a truck near the scene of
the attack--information that eased his uncertainty.
The Tribune's analysis of financial records from the
Sigmor gas station also undercuts the state's assertion that the killing
took place during a robbery, an aggravating circumstance that elevated the
murder to a death penalty case. Newly examined inventory documents suggest
no money was taken at all.
The prosecution argued that Hernandez was a "phantom,"
even though one of the prosecutors knew well of Hernandez but failed to
inform De Luna's attorneys--a possible legal error that could have been a
reason to overturn his conviction.
And one of Corpus Christi's senior detectives at the
time of the crime now says he believes De Luna was wrongly executed. The
former detective, Eddie Garza, said tipsters told him that Hernandez
killed Lopez, the mother of a 6-year-old girl. Yet it appears those tips
were not pursued.
Garza knew both men and said Lopez's slaying was the
kind of crime Hernandez would commit, not De Luna.
"I don't think [De Luna] had it in him to do something
like this and stab somebody to death," Garza said.
But Hernandez, he added, "was a ruthless criminal. He
had a bad heart. I believe he was a killer."
A SECRET NO MORE
After Hernandez died in prison in 1999, word reached
Corpus Christi, and people began to talk.
Janie Adrian remembered how Hernandez bragged about
stabbing Lopez, how he said Carlos De Luna, the man who shared his first
name, was innocent.
"He said, `My stupid tocayo took the blame for it,'"
she recalled recently.
Adrian, a neighbor of Hernandez's mother, Fidela, said
she always thought someone would ask what she knew. Nobody ever did, so
she never told.
"I kept it to myself," she said in her Corpus Christi
home. "Maybe I could have said something then."
Dina Ybanez waited because she was afraid. She met
Hernandez in 1985, and after he befriended her and her husband, he
confided that he killed Lopez.
"He said he was the one that did it, but that they got
somebody else--his stupid tocayo--for that one,"
Ybanez said in an interview. "Carlos would just laugh
about it because he got away with it."
Like a number of people in Corpus Christi who knew
Hernandez, Ybanez said he also admitted committing the 1979 murder of
Dahlia Sauceda, a local woman who was strangled and had an "X" carved into
her back. Hernandez was questioned in the murder in 1979, then indicted
for it in 1986, although prosecutors never took him to trial.
Ybanez said she so feared Hernandez that she never
contacted police about his admissions, not even after he cut her from her
navel to her sternum during a quarrel. "He said he was going to kill me
like he did her," she said.
Beatrice Tapia and Priscilla Jaramillo never spoke
about what they knew because they wanted to forget.
Although they had not seen each other in years, they
independently recalled the same chilling details from the day they heard
Hernandez say he killed Lopez.
Jaramillo is Hernandez's niece, and during the 1980s
she lived at his mother's home, where, she said, she was sexually abused
by Hernandez.
Not long after Lopez was slain, Jaramillo, then 11, and
Tapia, 16, a neighborhood friend, were sitting on the front steps, mostly
talking but also listening to Hernandez and his brother Javier, who were
on the porch drinking beer.
Carlos told his brother that he had killed the woman at
the gas station.
"He was saying he did something wrong and said Wanda's
name. He said he killed her," recalled Tapia, who still lives in Corpus
Christi. "He said he felt sorry about it."
Jaramillo's recollection is similar. "My Uncle Carlos
said that he had hurt somebody--that he had stabbed somebody," said
Jaramillo, who now lives elsewhere in Texas. "Javier didn't believe it.
"Carlos said, `I did.' And he named her, and Javier
knew her," Jaramillo said. "He said the name was Wanda."
In addition to the four women who recounted Hernandez's
admissions, the Tribune interviewed a Corpus Christi man who told a
similar story. Miguel Ortiz, who has a criminal record, said the two were
drinking in a park when Hernandez talked about a clerk he had "wasted" at
a gas station.
"I just let that go," Ortiz said.
TIPS ON HERNANDEZ
While some in Corpus Christi kept silent about
Hernandez, others apparently did not.
Garza, a detective at the time, recalled getting tips
just days after De Luna was arrested that someone else was talking about
how he had stabbed the gas station clerk.
"We were getting information that Carlos Hernandez was
the one that had done the case," said Garza, who now is a private
investigator. "Several people were telling us that."
Garza says he passed along the information to the
detective leading the investigation, Olivia Escobedo.
Escobedo, now a real estate agent and police consultant
in Florida, said she remembers no such tips. "I don't recall anything
about a Carlos Hernandez," she said in a recent interview.
"I always followed every lead," added Escobedo, who
primarily had investigated sex crimes and handled the De Luna case alone.
"I went down rabbit trails when I didn't have to. I followed everything I
could think of."
Garza's partner at the time, Paul Rivera, now a captain
in the county sheriff's department, also said he doesn't remember the
tips.
Garza did not testify at the trial but did at De Luna's
sentencing, asserting that the defendant had a "bad" reputation in town.
Garza says that by then he assumed the tips had been checked out and
determined to be false. Now he believes the tips were ignored.
His recent examination of the case's police reports, at
the Tribune's request, renewed his skepticism about De Luna's guilt. Garza
concluded the initial crime scene investigation was sloppy and brief.
He noted that none of the blood spattered on the floor
of the station was collected for testing, so there was no way to determine
whether the attacker's blood was present. The only items sent for blood
testing were the knife, De Luna's clothing and a $5 bill.
One police photo shows Escobedo standing in the middle
of the spattered blood behind the station counter. The station reopened a
few hours after the crime.
"This case wasn't put together right," Garza said.
Noting that investigators found no physical evidence
that could be used to identify the attacker, he said, "It probably was
there to be found. It was just overlooked."
WITNESS' DOUBTS
With no forensic evidence linking De Luna to the crime,
prosecutors relied heavily on two eyewitnesses who said they saw him at
the station--one before and one after the murder.
Arrested less than an hour after the attack, De Luna
was handcuffed and placed in a patrol car, then driven to the gas station,
where an officer shone a light on his face.
Of those witnesses, only Kevan Baker came eye to eye
with the killer after Lopez had been stabbed. Now living near Jonesville,
Mich., Baker recalls that night vividly.
He had stopped to buy gas and saw Lopez and a man
struggling inside the station. When he approached the door to help, the
assailant emerged, they locked eyes and the attacker fled.
De Luna and Hernandez were about the same height and
looked alike in police mug shot profiles.
Baker identified De Luna but now says he was uncertain.
"I wasn't all that sure, but him being Hispanic and all . . . I said,
`Yeah, I think it is him,'" Baker recalled recently. "The cops told me
they found him hiding under a truck. That led me to believe this is
probably the guy."
This form of identification--called a show-up, in which
a witness views only one suspect instead of attempting to pick a suspect
out of a lineup--can be accurate, but it also can give eyewitnesses a
false sense of certainty, according to experts. They say shackling a
suspect exacerbates the potential for a mistaken identification.
"Law enforcement figures `we got our guy,' so their
whole demeanor, their language, the way they handle the guy suggests to
the witness that this is the person," said Gary Wells, a research
psychologist at Iowa State University and a leading expert on eyewitness
identification issues. "That's a lot of pressure to put on a witness."
The other witness who identified De Luna as he sat in
the police car, George Aguirre, declined to be interviewed for this
article. At a pretrial hearing, Aguirre was unable to point out De Luna in
the courtroom. At trial a month later, though, he did.
Two additional witnesses at the trial, John and Julie
Arsuaga, said they caught a glimpse of De Luna's face as he ran slowly
through a parking lot east of the station a few minutes after Lopez was
attacked.
De Luna told authorities that when he saw Hernandez
struggling with Lopez, he fled from the area because he was on parole and
didn't want to be spotted by police.
Julie Arsuaga could not be reached for comment. In a
recent interview, her former husband said he still believes De Luna was
the man he saw down the street.
But he acknowledged he never saw De Luna at the gas
station: "I didn't see the man commit a crime."
NOT A ROBBERY?
The discovery of $149 in De Luna's pocket when he was
arrested was important to the prosecution's case because it was one more
way to tie him to the crime.
But a review of the station's business records show
that's a shaky assumption.
De Luna's defense lawyers established that he had
cashed a paycheck for $135 the day of the murder and $71 a week earlier.
Further, they noted that the $149 was in a neat roll--unlikely if the
money had just been snatched from a cash register--and that none of the
bills tested positive for blood. Money found scattered in the Sigmor
station was bloodstained.
At trial, a district manager for the chain of stations
told the jury that an inventory performed the night of the crime showed a
shortage of $166. He couldn't say how much of that was merchandise and how
much, if any, was cash.
But another Sigmor employee at the time, Robert Stange,
never believed any money was taken.
Stange, who said he was never interviewed by police,
prosecutors or defense lawyers, worked the day shift at the station before
Lopez. In a recent interview, he said he was called back that night after
the murder to clean up the blood and conduct the inventory.
He said he found $55 in cash receipts as well as $200
kept at the station to make change for customers.
Lopez, he said, always made sure that when she
accumulated $100 in receipts, she immediately put it in the safe and noted
the time and the amount of the cash drop in the station's daily log.
A copy of the log shows that Lopez last made a drop of
$100 at 7:31 p.m., 38 minutes before she was attacked.
For De Luna's $149 to have been robbery proceeds,
Stange explained, Lopez would have had to take in at least that much in
the half-hour before the crime occurred, without putting any of it in the
safe. Lopez, he said, "would have never kept that kind of money in the
drawer without making a drop. She didn't want that kind of money on hand.
Nobody did."
At the request of the Tribune, Kevin Stevens, a DePaul
University accounting professor, examined the inventory report prosecutors
used at trial. Stevens, who coincidentally worked at a gas station while
in college, concluded that the Sigmor's bookkeeping system was too
haphazard to be accurate.
"They can't know how much cash was missing," Stevens
said, "because they can't know how much cash was there."
STILL CONFIDENT
After the Tribune began its investigation, the lead
prosecutor in De Luna's trial, Steve Schiwetz, decided to examine the case
file.
Troubled by some of the questions being raised, he
spent hours at the Nueces County district attorney's office with a
reporter poring over the trial exhibits, police reports and other
documents in the case, as well as studying documents the Tribune provided.
Now a lawyer in private practice, Schiwetz acknowledged
that the case relied heavily on eyewitness testimony. "Sometimes it's
reliable. Sometimes it isn't reliable," he said in an interview. "And
sometimes, in cases like this, you're not entirely sure how reliable it
is."
Schiwetz labeled Hernandez a "phantom" at trial, but
said he would not have done so if he'd been informed by a fellow
prosecutor that Hernandez had been a suspect in the murder of another
woman. Schiwetz also said that if he had been told of reports that Carlos
Hernandez was claiming to be Lopez's killer, he would have investigated
them.
"Anytime somebody's going around saying they killed
somebody, I think it's worth looking at," he said. "But I've heard a lot
of people make claims for stuff they did or didn't do that weren't true."
Ultimately, Schiwetz points to several elements of the
case that still persuade him the jury convicted the right man. De Luna, he
said, lied when he claimed to have talked to two women at a skating rink
on the night of the crime and lied when he apparently said he first met
Hernandez in jail. De Luna had lost all credibility, Schiwetz said.
"He's lying about the most important story he's ever
going to tell in his entire life," he said.
In addition, while De Luna said he lost his shirt while
scaling a fence, he gave no explanation for how he lost his shoes,
Schiwetz noted. Though the crime lab found no blood or other evidence on
them, Schiwetz told the jury that De Luna could have stabbed Lopez without
getting blood on his shirt and that any blood on his shoes washed off when
he ran through wet grass.
As for Hernandez's history of knife crimes, he said,
"Every man in this town has carried a knife. And most of us still do. I
carry a knife. I did not kill Wanda Lopez or anybody else."
Schiwetz's co-prosecutor on the De Luna case, Ken
Botary, also remains confident the verdict was correct.
"I'm not ready to concede Carlos De Luna was innocent,"
Botary said.
ANGER AND REGRETS
Wanda Lopez's murder still haunts those who were
touched by it.
Her brother, Louis Vargas, no longer is filled with the
rage that so consumed him that he imagined sneaking into the prison and
killing De Luna himself.
Now, when he thinks about his sister's death, he mainly
is filled with horror at how she died. He cannot forget her screams on the
911 tape.
"This is like opening a can of worms," he said. "All
this time, we were told it was this one guy. Now do we have to think it
was somebody else?"
His parents adopted Wanda's young daughter. Now a
mother of four, she is raising a family of her own and still lives in
Corpus Christi.
De Luna's sister, Rose Rhoton, has long believed in her
brother's innocence. She blames his lawyers for not mounting a more
aggressive defense and authorities for not pursuing Hernandez as a
suspect.
She has regrets of her own as well.
"If God ever gave me a second chance," Rhoton said,
sitting in her Dallas home and beginning to cry,
"I would fight harder for Carlos."
When Rhoton departed the death house in Huntsville,
having seen her brother for the last time, she left him in the care of a
minister, Carroll Pickett.
The death house chaplain, Pickett prayed with De Luna
and, as he did with all inmates facing execution, gave De Luna an
opportunity to confess and make his peace. De Luna, he said, insisted he
was innocent.
De Luna was the 33rd Death Row inmate to whom Pickett
ministered, and in the years that followed he would minister to 62 more.
But this one stayed with him always: how De Luna claimed he was innocent,
how he took longer to die than most inmates, how he tried to raise his
head from the gurney and speak to Pickett before the lethal injection left
him lifeless.
"When I saw him die," Pickett said, "part of me died
too."
The experience forced him to ask a question he says he
still can't answer: Do the innocent die differently than the guilty? |