Hector De Peña was the first lawyer assigned to defend Carlos ...

2012] Los Tocayos Carlos, Part III, Chapter 11 949
wasn’t claiming them as an alibi, and they weren’t important to his
story.
* * * * *
By telling the prosecutors about the Perales sisters, De Peña
and Lawrence had gone out of their way to give the state information
they knew could damage their client’s case. They expected law
enforcement to respond in kind. Unlike the defendant, who has a
right not to tell the state anything, prosecutors have a moral and
legal duty to tell the defendant about any evidence they have that
helps him. But this was another lesson De Peña would learn from the
DeLuna case. Prosecutors and police aren’t always diligent in finding
evidence that helps the defense, or in disclosing it to the other side
when they do.
An example of this lesson lay in psychiatrist Kutnick’s report
concluding that DeLuna’s low IQ score was either a fluke or
malingering. The doctor said he might change his mind if there was
any information about “how far this defendant got in school, and
whether there was a question of his being retarded.” Kutnick asked
prosecutors to look for the information in DeLuna’s school records.
But as he said in his report, he never “heard back from Mr. Schiwetz,”
so he assumed the information was “not obtainable.” Judge Moore, as
well as Lawrence and De Peña, read Kutnick’s caveat and evidently
joined the doctor in assuming Schiwetz had followed up and found no
relevant school records. They didn’t look for themselves.
All that happened in 1983. In 2004, the out-of-town
investigators did look. Within hours the investigators were handed a
sheaf of school records showing that, from the elementary grades on,
teachers and psychologists alike had diagnosed Carlos DeLuna as a
slow learner with a low IQ and learning problems that required
special education classes and led him to drop out before finishing
middle school. DeLuna’s juvenile records showed the same thing.
* * * * *
Another example of evidence that law enforcement didn’t
produce was the audiotape of the manhunt. Within a month of the
crime, De Peña and prosecutor Hunter had discussed the police tapes
in the case, and Hunter offered to let De Peña listen to the portion of
the tape that recorded Wanda Lopez’s 911 call to the police. The
defense lawyers had asked in writing for much more, however,
including records of “all incoming calls and outgoing broadcast made
concerning the reports and whereabouts of any suspect or suspicious
persons reported via the Corpus Christ Police Department arising out
of the” incident at the Sigmor Shamrock on February 4.