`I didn’t do it. But I know who did’ New evidence suggests a 1989 execution in Texas was a case of mistaken identity
By Maurice Possley and Steve Mills
Tribune staff reporters
Published June 25, 2006
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?”
“Yes,” she said.
“Tall? Short?” Escochea asked.
“Uh-huh,” said Lopez, her voice straining to remain calm.
“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.
– – –
ABOUT THE SERIES
Since the U.S. Supreme Court approved the reinstatement of the death penalty 30 years ago, there has yet to be an instance of DNA proving that an innocent person was executed.
As more cases are re-examined, though, doubt is being cast on a number of executions–especially those in Texas, where the criminal justice system has executed more people than any other state.
The Tribune has been investigating criminal justice issues in depth since 1999. Its examination of flaws in Illinois’ death penalty system helped prompt a moratorium on executions in the state.
The paper also has exposed problems in Texas’ death penalty system. In 2004, it revealed the faulty science behind the arson investigation that led to the execution of Cameron Todd Willingham. Last year, a Houston Chronicle investigation cast serious doubt on the evidence that sent Ruben Cantu to the death chamber.
The Tribune learned of Carlos De Luna, who was executed in 1989 for a murder in Corpus Christi, after James Liebman, a professor at Columbia Law School in New York City, contacted the newspaper.
Liebman has co-authored studies that found high rates of court reversals due to serious error in capital cases. In subsequent research with students on behalf of the NAACP Legal Defense and Educational Fund, he came across the De Luna case. Liebman asked a private investigator to go to Corpus Christi and look into De Luna’s claim during his trial that another man was the real killer.
A woman told the investigator the other man had bragged about committing the murder. Believing De Luna’s execution was worth a deeper look, Liebman contacted the Tribune.
“This was no longer a legal or academic enterprise,” he said.
Part 2: A phantom, or the killer? A prosecutor said Carlos Hernandez didn’t exist. But he did, and his MO fit the crime.
By Steve Mills and Maurice Possley
Tribune staff reporters
Published June 26, 2006
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.”
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 point-blank: 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.”
Part 3: DID ONE MAN DIE FOR ANOTHER MAN’S CRIME? THE SECRET THAT WASN’T
Violent felon bragged that he was real killer
By Maurice Possley and Steve Mills
Tribune staff reporters
Published June 27, 2006
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.”
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.”
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?