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May 17, 2012
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Report questioning Tex. execution doesn't sway lawyers

Defense lawyer says he isn't convinced the state wrongly put a man to death

By Michael Graczyk
Associated Press

HOUSTON — The defense lawyer for a Texas inmate executed two decades ago said Wednesday he isn't convinced the state wrongly put a man to death despite a new report that again questions the case.

Carlos DeLuna was convicted in the fatal stabbing of a Corpus Christi convenience store clerk during a robbery in 1983. His attorney, James Lawrence, said his legal team "pounced" on problems with the prosecution's evidence — shaky eyewitness accounts, no blood found on DeLuna despite a bloody crime scene — but noted that DeLuna never identified the man he claimed was the killer.

"If you tell me they killed the wrong guy, I don't know," Lawrence said.

A team headed by a Columbia University law professor published a 400-page report this week that contends DeLuna didn't kill the clerk, 24-year-old Wanda Jean Lopez. Citing prosecutors' reliance on a single eyewitness to the attack and claiming attorneys on both sides didn't fully look into another suspect, the report concludes that DeLuna was wrongly executed in 1989. The report supplemented a Chicago Tribune investigation that raised similar questions about DeLuna's case in 2006.

Death penalty opponents have often focused on Texas — where 482 prisoners have been executed since 1982, more than any other state — to find evidence of a wrongful execution. Several cases have been reviewed and criticized, though top state officials have never acknowledged and courts have never ruled that an innocent person was put to death.

The Texas Attorney General's office, which handles capital case appeals, declined comment on the report after it was posted online Tuesday by the Columbia Human Rights Law Review.

DeLuna claimed the killer was a man named Carolos Hernandez whom he'd met in the Nueces County jail.

The county's former prosecutor who tried DeLuna, Steve Schiwetz, said records showed DeLuna had never been in the jail at the same time as a Carlos Hernandez. He also said investigators gave defense attorneys photos of every Carlos Hernandez who had been jailed in Nueces County and showed them to DeLuna, who refused to identify any of the photos as the killer.

"It still bothers me to this day he wouldn't," Lawrence said, noting that he's handled at least 20 capital murder cases.

"The conclusion I come to is he's making it up, giving a phony name, hence the phantom Carlos Hernandez," Schiwetz said. "What am I supposed to do?"

Schiwetz, who is now in private practice, believes Hernandez either didn't exist or had no connection to the case. Nothing so far, he said, has "changed my mind as to who did it."

Tuesday's university report concluded, however, that Hernandez was an ex-convict with a long record who died in prison in 1999.

DeLuna told police he was at a skating rink with friends, including twin sisters, at the time of the murder. But photographs and other evidence presented at trial showed the sisters were at a baby shower that night.

Lawrence said eyewitness testimony was shaky, which was noted in the Columbia report. He also noted that DeLuna had no blood on him when he was arrested not far from the crime scene — hiding under a truck. DeLuna said he was hiding because he was on parole and feared police.

The university report said the witness who saw the store clerk struggle with her attacker has wavered in recent years in his recollection of the incident. Schiwetz acknowledged that the witness was brought back to the scene by police and told that DeLuna had been caught hiding, which was "not good police procedure."

But the former prosecutor said there were other witnesses who said a man with a knife matching DeLuna's description at the convenience store. The case, he said, "was tried as clean as a hound's tooth. I did not skate close to the edge like some guys do."

Lawrence questioned the second-guessing by a law school 30 years later for his handling of the case, though he said it was good to bring up awareness.

"We don't need the death penalty," he said.

Associated PressCopyright 2014 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Copyright 2012 Associated Press






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