THE SECOND STAGE OF CARLOS DELUNA’S capital murder trial decided whether his sentence would be life in prison or death. It began the next morning, Thursday, July 21, 1983, in front of the same jury.
The fact that a unanimous jury had found the defendant guilty of cold-blooded murder just the day before was a bad sign for anyone facing the death penalty, but it was especially bad for DeLuna.
In most capital trials, the defendant offers an excuse—a mental defect or disease, for example—that may be strong enough to avoid a conviction for capital murder by justifying a verdict of not guilty by reason of insanity or guilty of only a lesser crime such as manslaughter. If that fails, the same defense may still lay the groundwork for a sentence less severe than death. Even if the impairment is not great enough to excuse the defendant entirely, it still may be “mitigating” enough to convince the jury to spare the defendant’s life.
But DeLuna and his lawyers offered no reason to doubt that he was fully responsible for his actions and instead argued for acquittal at the first stage of trial by claiming that someone else committed the crime. When the jury promptly decided “beyond a reasonable doubt” that he did commit the offense—a very bad one at that—only a single, dubious option remained open to DeLuna at the sentencing stage.
Lawyers have a name for this defense to the death penalty, which reveals just how desperate the ploy is. “Whimsical doubt,” they call it. The hope is that, even after all twelve jurors have found the defendant guilty of a very bad crime beyond any “reasonable” doubt, at least one juror will still have a tiny inkling left over that someone else may have committed the crime and will vote against a death sentence because of it.
Reducing even this slim chance of escaping a death verdict was another strike against DeLuna: the sentencing jurors almost certainly believed that he lied to them at an earlier stage of the trial. That made three strikes. The jurors had found him guilty beyond a reasonable doubt. They believed that he disrespected them by trying to deceive them. And they probably thought that he was convinced of his own guilt, because only a guilty person or a fool would tell a lie under oath, especially a lie that’s easy to expose or so obviously false that no reasonable person would believe it.
The day before, Assistant District Attorney Steven Schiwetz had ended his dramatic argument in favor of guilt on “lies” of both sorts—the easily exposed Mary Ann Perales detail in DeLuna’s testimony, and the defendant’s seemingly ridiculous claim that “some other dude named Carlos did it.” By emphasizing those “lies,” Schiwetz had cleverly set the stage for a death verdict even before the sentencing trial began.
Carlos’s lawyers did their part to seal his fate. They didn’t impress upon their client the idiocy of bringing up Mary Ann Perales when they knew that she would dispute his claim and that the prosecutors would find her because the defense lawyers had alerted law enforcement to talk to her. Far worse, they gave no bodily reality to “the phantom Carlos Hernandez.”
The sentencing stage went forward in about the same way as the guilt stage had gone. Schiwetz and Kenneth Botary did their job capably. The defense lawyers did little—even less at this stage than at the prior one. And by declining Schiwetz’s second offer of a plea bargain while the jury was still deliberating on his guilt, Carlos DeLuna burned the best remaining bridge he had to a sentence of life rather than death. Now he had nothing to offer the prosecutors in return for a deal. They already had their murder conviction and a life sentence at least.
. . .
The second stage of a capital trial starts with the State presenting evidence of “aggravating factors,” or reasons why the jury should impose a death sentence. Schiwetz began this process with three so-called character witnesses. Following a formula that courts have used for centuries to enable juries to decide whether a criminal defendant is a good or bad person by relying on what amounts to gossip, Schiwetz elicited how each witness knew DeLuna and asked each a single question about DeLuna’s reputation. The witness could answer the question with only one of two words: “good” or “bad.”
Schiwetz first called a Corpus Christi police officer to the stand, then a retired sheriff’s department deputy constable, and finally Detective Eddie Garza and asked each to describe Carlos DeLuna’s “reputation in the community.” Each witness answered that it was “bad.” Garza’s network of informants made him a particularly reliable expert on the reputations of young Hispanic men in the city. Defense counsel let the testimony pass without asking a single question on cross-examination.
. . .
With these formalities behind them, the prosecutors got down to business.
They called several witnesses to testify about a family party on May 14, 1982, to welcome home Marcos Garcia from the state penitentiary. Frail, sick, and looking much older than her fifty-four years, Marcos’s mother, Juanita Garcia, testified that Marcos had invited Carlos DeLuna, a friend from the penitentiary, to join them. Only days before, DeLuna himself had made parole—for the first time—from his convictions in Dallas. He arrived at the party dressed in black slacks and a button-down dress shirt with the sleeves rolled up.
Garcia testified that, after everyone had left and she went to sleep, she awoke to find Carlos DeLuna lying on top of her. Threatening to kill her if she screamed, Carlos pulled his pants down, removed Garcia’s underwear, and kissed her. When she protested, he hit her, breaking three ribs. Although DeLuna never attempted to have intercourse, he stayed on top of Garcia for twenty minutes.
Garcia’s description of DeLuna’s acts did not speak to whether he was guilty of killing Wanda Lopez, but that was no longer the issue. The issue was whether DeLuna deserved to live or die, and the effect of the invalid’s account was devastating.
It was Juanita Garcia’s unexpected testimony that led Hector De Peña, seated next to DeLuna at the defense table, to whisper “Oh shit” loudly enough for the court reporter to hear it. “In my opinion,” news reporter Karen Boudrie explained later, “when they put on, in the death penalty phase, the 5[4]-year-old woman that Carlos supposedly tried to rape . . . that sealed his fate. That one person’s testimony sealed his fate as far as whether he would get life or death. She was the most pathetic-looking woman you would ever want to see.”
. . .
Before trial, the prosecutors had disclosed to the defense that they intended to call Juanita Garcia and other members of her family to testify in favor of a death sentence for Carlos DeLuna. When the prosecutors did so, they also gave James Lawrence and De Peña a court record indicating that DeLuna had been convicted of misdemeanor assault in the incident, a minor offense.
Although the incident caused DeLuna’s parole to be revoked and sent him back to prison for several months, and although their client’s life was at stake, Lawrence and De Peña decided that it wasn’t worth interviewing Garcia and her daughters before trial.*1 Unlike the prosecutors, who sent detectives to talk to Mary Ann Perales the minute they got her name from De Peña and Lawrence, the defense lawyers decided to fly blind when it came to Garcia. They had no idea what was coming when she took the stand.
Lawrence and De Peña also failed to look for the case file on the incident, which explains why it was treated as a minor misdemeanor, not a serious crime. One of Botary’s and Schiwetz’s colleagues in the D.A.’s office had investigated the complaint, talked to Garcia, and “determined that there was no rape or attempted rape that was prosecutable in this case.” The explanation at least would have prevented the prosecutors at DeLuna’s trial from referring to the incident—as Schiwetz repeatedly did—as an attempted rape.
Lawrence and De Peña, however, never saw that record until after Garcia testified, when the prosecutors showed them the file in the case. At that point, the only thing the defense lawyers could think to do was object to all the records, which the jury never saw.
De Peña later chalked up the incident to more prosecutorial sharp practice. Gentlemen, he believed, would have shared the entire Juanita Garcia file with the defense before trial, tipping them of to what was coming. Instead, the prosecutors gave them only one page in the file, which indicated that the incident was minor.
After showing the jury other court records, which described DeLuna’s convictions in Dallas for attempted rape and car theft, the State rested its case for the death penalty.
Now it was the time for the defense lawyers to present their client’s evidence of mitigating factors—everything about Carlos DeLuna’s life, background, age, poverty, mental problems, family relationships, and good deeds that might, singly or together, give at least one juror a reason to grant mercy. Because death verdicts have to be unanimous, one juror’s vote for mercy would spare DeLuna’s life.
Incredibly, in a step that today would be an almost automatic reason for an appeals court to throw out a death sentence, Lawrence and De Peña immediately rested DeLuna’s case as well. They didn’t call a single witness or put on any mitigating evidence.
The jury heard nothing about Carlos’s limited intelligence, “specific learning disabilities,” and inability to handle the mental rigors of the seventh grade. His lawyers presented no testimony from his former teachers, the school psychologist who discovered his reading and memory problems, or a family member who had watched him struggle with his schoolwork. They didn’t even offer a school or juvenile court record.
Although Carlos’s sisters were in the courtroom, his lawyers called none of them to testify to his sweetness as a child or that one of them had to raise him when she was still a girl because his father had abandoned the family and his mother was too exhausted to bring him up. His younger sister, Rose, never got a chance to describe his suggestibility and manipulation by their older brother, or Carlos’s generosity with his paltry Whataburger wages so Rose didn’t have to stand in the paupers’ line in the school cafeteria.
His lawyers didn’t chase down records showing that Carlos had stayed out of trouble while in prison on the Dallas convictions and had provided information to prison officials and testimony leading to the conviction of four inmates for killing a fifth.
They called no one to say that she believed in Carlos’s basic goodness and redeemability and to beg for the twenty-one-year-old’s life.
Summarizing DeLuna’s defense to the death penalty, the local news paper reported the next morning that “[d]efense attorneys neither called witnesses nor presented evidence in yesterday’s punishment phase of the trial.”
. . .
Schiwetz’s closing argument in favor of a sentence of death was shorter and less dramatic than his argument that DeLuna was guilty.
He began by reminding the jurors that they all had “promised” the judge that they were willing to impose death. People with a problem imposing a death sentence are excluded from juries in capital murder cases.
Schiwetz then explained that, to impose a death sentence in Texas, the jury had to find that the killing was deliberate and that the defendant would be a danger to other people if he wasn’t executed.
To help the jurors decide whether the murder of Wanda Lopez was deliberate, Schiwetz invited them to take the buck knife used to kill Wanda into the jury room with them “and look at it, open it up and try to imagine what effect that would have sticking it in the lungs or the heart and . . . decide whether that was all done deliberately.”
“Listen to the tape again,” Schiwetz recommended. “Listen to her begging for mercy. Listen to that scream.”
On “future dangerousness,” Schiwetz referred the jurors to DeLuna’s criminal record. Carlos had “become mentally a convict,” Schiwetz said, coining a phrase the newspapers quoted the next day. The prosecutor noted that within days of being paroled in 1982, DeLuna “went over and tried, I submit to you, tried to rape his best friend’s mother. That says about everything you need to say about Carlos DeLuna.”
Rejecting the idea that life in prison was punishment enough, Schiwetz claimed that DeLuna “doesn’t mind the penitentiary. He kind of likes it, he . . . would just as soon kill to get back in there.”
The prosecutor ended by reminding the jury of Wanda Lopez’s six-year-old daughter, who was gaily seated in her smiling mother’s lap in the photograph that Wanda’s father had shown the jury on the first day of the trial.
. . .
Lawrence and De Peña again split the defense argument, but they didn’t coordinate their statements to the jury. De Peña had no idea what his co-counsel would say until he listened to Lawrence along with the jury.
De Peña, for his part, argued that the killing was not deliberate and that DeLuna would not be a danger in the future if he was imprisoned instead of executed. The jury, he reminded them, had to find both things to be true in order to come back with a death sentence.
Bizarrely, and perhaps disastrously for Carlos DeLuna, Lawrence argued the exact opposite. He said that the way Texas law was written, everyone found guilty of murder at the first stage of a capital trial (which required a finding that the killing was “intentional”) also was guilty of “deliberate” killing. He then argued that only someone who was entirely without sin could avoid a “yes” answer to the second question, whether he might be a danger in the future. Lawrence criticized both legal rules as silly and unfair. The first, he said, was “ridiculous”; the second was “impossible.”
Having in this way told the jurors that, if they followed the law, they had to impose death on his client, Lawrence then indulged his fondness for personal attacks by insulting the jurors. As Schiwetz had already reminded them, all the jurors had promised the judge that they would follow the law and consider the death penalty. Lawrence now argued that they would be “absurd” and “selfish” “destroyers of life” who put themselves “above God” if they imposed the penalty.
Even in arguing that enough doubt about DeLuna’s guilt existed to justify a life sentence, Lawrence put the matter in personal terms, telling the jury that, as was his right, he disagreed with them about DeLuna’s guilt.
The barbs that Lawrence directed at the jury left De Peña “aghast.” A lawyer friend sitting in the audience with De Peña’s wife caught De Peña’s eye and mimed someone hammering a nail. Both spectating lawyers could see that Lawrence was putting the last nail in DeLuna’s coffin.
De Peña finished up for the defense. He closed by saying, “If any of us, myself, cocounsel, Mr. Schiwetz, if we have said anything to offend you personally, I ask that you overlook that, [and] don’t hold it against Carlos De Luna.”
. . .
Even with all the strikes against him, including the ones pitched by his own lawyers, Carlos DeLuna came close to avoiding a death sentence. After hours of discussion, the jury twice came back with a “yes” answer to the question whether the killing was deliberate but said they could not agree on whether DeLuna would “constitute a continuing threat to society” if he was not executed.
Judge Moore asked the foreman, juror Morales, if he thought the jury could come to a decision on the second question after more discussion. Morales said the jury could try, but “it would be rather difficult to go back in there and try and make a decision.”
The judge then asked each of the other jurors whether they all might be able to reach agreement after further discussion. All but one responded that agreement might be “possible.” Judge Moore directed the bailiff to take the jurors to dinner and then to return them to the courthouse to deliberate further, adding that he would stay as long as they wanted to work that night.
Later that evening, the jury returned with a verdict of death.
“I know what you have been through,” the judge told the jurors. “I’m glad that you had the courage of your convictions, and you may be excused with my thanks.”
. . .
In the Corpus Christi Caller-Times the next day, reporter Linda Carrico described Carlos DeLuna’s reaction to the verdict: “At first undisturbed by the jury’s decision, DeLuna became agitated when Nueces County sheriff’s deputies attempted to escort him back to jail before he could say good-bye to his sister.”
“‘Let me hold my sister, man!’ a sobbing DeLuna screamed.”
Note
*1. In his 2005 interview, Hector De Peña acknowledged that he and James Lawrence were “surprised” by the testimony of Juanita Garcia and her daughters because the two lawyers had relied entirely on the single document provided to them by the prosecutors before trial, which indicated that the offense was a misdemeanor. The two lawyers conducted no independent investigation into the matter.