A phantom or the killer?

A phantom or the killer?
A prosecutor said Carlos Hernandez didn’t exist. But he did, and his MO fit the crime. Second of three parts.

http://www.chicagotribune.com/news/specials/chi-tx-2-story,0,5022270.htmlstory




Tribune investigation

Did this man die ...
for this man's crime?


Part 1:
`I didn't do it'

Part 2:
Phantom or murderer

Sidebar:
Prosecutor's silence

Part 3: Tuesday
What the jury didn't hear



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By Steve Mills and Maurice Possley
Tribune staff reporters
Published June 26, 2006

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.

Graphic: Two lives of crime


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."


Photos: Carlos Hernandez, his family and some who have accused him


ANOTHER ATTACK

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."



Audio: Edited excerpts of death-house chaplain Carroll Pickett's recollections of De Luna's final day and the execution


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."

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Coming Tuesday: What the jury didn't hear

mpossley@tribune.com

smmills@tribune.com