CARLOS DE LUCA CASE (5): TRIBUNE SERIES; DISTURBING SIDEBAR;
The Chicago Tribune has distinguished itself with its stories on Carlos De Luna - a man who was executed by the State of Texas for the murder of Gas Station clerk Wanda Lopez;
The Tribune, which also distinguished itself in its investigative reporting on the Cameron Todd Willingham case, published a three-part special report - to be run over the next three posts on this Blog - which suggests that De Luna died for another man's crime.
(Tribune reporter's Steve Mills and Maurice Possley reported both the Willingham and De Luna stories;)
------------------------------------------------------------------------------- "JUST BEFORE TRIAL, CARLOS DE LUNA'S LAWYERS IDENTIFIED HERNANDEZ AS LOPEZ'S REAL KILLER. FROM THAT POINT ON, ANY INFORMATION ABOUT HERNANDEZ WAS CRITICAL TO THE DEFENSE. BOTARY KNEW THAT A PROSECUTOR HAS A DUTY TO DISCLOSE EVIDENCE FAVORABLE TO THE DEFENSE AND THAT FAILURE TO DO SO CAN BE CAUSE FOR AN APPEALS COURT TO SET ASIDE A CONVICTION AND ORDER A NEW TRIAL."
REPORTERS STEVE MILLS AND MAURICE POSSLEY: CHICAGO TRIBUNE;
Sidebar: A prosecutor's silence Co-prosecutor knew of Hernandez. He now says he should have told his partner By Maurice Possley and Steve Mills | Tribune staff reporters June 26, 2006;
"CORPUS CHRISTI, Texas: When lead prosecutor Steve Schiwetz told a jury that a man named Carlos Hernandez was a "phantom" and not the killer of gas station clerk Wanda Lopez, his co-prosecutor sat nearby and said nothing," the disturbing sidebar begins;
"Yet Ken Botary, a veteran of the Nueces County district attorney's office, was, by his own account, well aware of Hernandez and his reputation for violent acts here," it continues;
"Three years earlier, Botary had prosecuted another murder case and lost after defense lawyers argued that Hernandez was the real killer. Botary interviewed Hernandez before that trial and cross-examined him on the witness stand. Botary was even called to testify about his interview of Hernandez.
Just before trial, Carlos De Luna's lawyers identified Hernandez as Lopez's real killer. From that point on, any information about Hernandez was critical to the defense. Botary knew that a prosecutor has a duty to disclose evidence favorable to the defense and that failure to do so can be cause for an appeals court to set aside a conviction and order a new trial.
Schiwetz said Botary never told him about Hernandez. By remaining silent, Botary allowed Schiwetz to misinform De Luna's jury.
In a series of interviews, Botary offered changing explanations of how he handled the information about Hernandez.
"I got the name right off the bat," Botary said. "I knew Carlos Hernandez was a dangerous man."
But Botary, now a criminal defense lawyer in Corpus Christi, says he may not have associated the Hernandez mentioned by De Luna's lawyers with the man he had interviewed and cross-examined in the earlier murder case.
He acknowledged that had he been De Luna's lawyer at the time, he would have wanted to know the information. "I think I should have told Schiwetz," Botary said.
In Botary's defense, Schiwetz noted that at the time of De Luna's trial, prosecutors in Corpus Christi carried heavy caseloads, so his colleague simply may not have made the connection.
But, Schiwetz added, if Botary had told him, he would have alerted the defense and never called Hernandez a phantom."
My interest in forensic pathology began with my Toronto Star investigative reporting into once famed since disgraced former doctor Charles Smith. I began this Blog after retiring from the Star in 2006 in order to follow the aftermath into the independent Goudge inquiry into many of Smith's cases. I have now begun to focus on cases involving flawed forensic science no matter where they occur (the recent Amanda Knox prosecution in Italy, for example) and am fascinated by the interest in the Blog from people in countries throughout the world. In another development, my interest in "junk science" "pseudo-experts" and the miscarriages of justice they all too often cause has drawn me deeply into the on-going U.S. death penalty debate where so many troubling cases involve issues relating to DNA and other developments in the world of forensic science. For all of this I rely on my experience as a reporter at the Toronto Star, my work as a lawyer in Ontario's criminal courts, and my abhorrence of injustice. Please send cases and developments which may be of interest to this Blog to firstname.lastname@example.org. Read on! Harold Levy.