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

2012] Los Tocayos Carlos, Part III, Chapter 11 935
even a single defense investigator, and when they do, the amounts
provided can be laughably low. In Corpus at the time, the most you
could get for a defense investigator was $500—enough for twenty-five
hours total from someone willing to work at rock-bottom rates.
One reason capital murder cases are so demanding is that
they’re actually two trials in one. In other cases, there’s one fullblown
trial in front of a jury, to decide if the defendant is guilty. If the
jury finds him guilty, the judge decides on a sentence after a short
hearing. But in a capital case, if the jury finds the defendant guilty,
there’s a second full trial, at which the same jury decides whether to
sentence the defendant to death or life in prison. At that trial, the
prosecutors get to put on more evidence—of “aggravating” factors, or
every reason they can find why the crime or the criminal is especially
bad. Then, the defendant is allowed to put on “mitigating” evidence—
reasons why the crime wasn’t as bad as some others, or why the
defendant is a better person than the crime suggests or has good
excuses for why he is the way he is.
Making things even more difficult, that second, sentencing
trial was a new concept back in 1983. Courts had only started using
the procedure a few years before Carlos DeLuna was arrested, and
Texas had carried out its first execution under the new procedure
only two months before. Even experienced capital murder lawyers
were still getting used to the new rules in 1983.
“Let’s be honest,” Carlos Hernandez’s lawyer Jon Kelly said,
explaining to the private investigators how things went in capital
cases in 1983. Most capital murder verdicts were challenged—and
more than a few were overturned by appeals courts—because of
“incompetence” of defense lawyers trying to deal with all the
complications and difficulties of a capital trial with few resources to
draw on.
It was understood that lawyers assigned to represent
“indigents” in capital murder cases were “going to be under pressure”
from prosecutors, the court, the client, and the press and had to be
able “to handle a myriad of things.” That’s why, Kelly said, the
assumption in Corpus Christi at the time was that you’d only get
assigned to represent someone threatened with death if the judge
thought you had “enough brains” and experience to “make sure that
basic rights are protected” despite all the difficulties you faced.
“In those days, it was an honor to be an attorney in a capital
murder case,” Kelly explained—a sign that the judge “thinks you’re
good,” that you’re in the highest echelon.
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