Latino Victims of Denials of Due Process

CHAPTER 10

In reviewing the issue of constitutional right to due process of law, a person must first determine whether the federal or the state government has taken the allegedly unfair action. The Fifth Amendment governs the federal government while the Fourteenth Amendment serves as the guidance for state agents. For example, the Fourteenth Amendment states, “nor shall any State deprive any person of life, liberty, or property, without due process of law.”1 At times, a difficulty arises as to whether a right is procedural or substantive; both categories are critical to a fair and just disposition.

The indefinite due-process concept is exemplified in Rochin v. California, where police suspected Rochin of drug possession and entered his home without a warrant. Police took Rochin, who had swallowed two pills, to a medic—who, following police instructions, applied an oral solution to force Rochin to regurgitate the pills. The U.S. Supreme Court reversed the conviction, concluding that the state practices “offend those canons of decency and fairness which express the notions of justice of English-speaking peoples.”² The Court added that these “notions of justice” are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,”³ as well as those that are “implicit in the concept of ordered liberty.”⁴

A few years later, the Court in Griswold v. Connecticut introduced the new substantive due process (Hall 1999, 116) by announcing the implicit fundamental right to privacy, a right derived from five separate amendments.⁵ The case involved the prosecution of individuals with Planned Parenthood for distributing contraceptives. The Court concluded the Constitution barred prosecutions that invaded the privacy interests of consenting adults and violated fundamental fairness.⁶

The Bill of Rights also contains provisions that are critical to procedural due process. These protections extend a number of rights and freedoms to the accused, including the right to be free from unreasonable searches and seizures, double jeopardy, and self-incrimination. In addition, an accused must be informed of the charges, have the effective assistance of an attorney, undergo a speedy and public trial by an impartial jury, have the opportunity to cross-examine witnesses, and require the prosecution to present legally sufficient evidence beyond a reasonable doubt before a conviction will be considered constitutionally valid. The earlier chapter on the need for interpreters discusses the deprivation of due process by prosecuting a person whose limited English-language skills prevent him from confronting his accusers and having the effective assistance of counsel.

In 1963 in Gideon v. Wainwright, the Court ruled that the Fourteenth Amendment’s due process clause incorporates the Sixth Amendment right to have an attorney in state criminal prosecutions.⁷ Since Gideon was too poor to hire his own attorney, and the trial judge denied his counsel based on state law, the Gideon opinion revolutionized the rights of indigents by requiring states to provide court-appointed counsel for the poor.

Another valuable constitutional right addresses the concept of the presumption of innocence in criminal matters. Different practices undermine this principle, but the author at this point restricts the discussion to use and abuse of bail in criminal cases. Bail permits the release of an accused pending trial or other disposition.8 The Eighth Amendment provides only that excessive bail shall not be imposed. This suggests that some fairly high bail can be set if the circumstances warrant it, thus removing it from the “excessive” category. In some cases, bail can be denied, such as capital murder cases where the maximum sentence can be either death or life without parole.⁹ Bail set on the mere nature of the indictment amounts to an arbitrary act.¹⁰ The judge should review the preliminary allegations of the alleged offense, the potential sentence, and the likelihood of appearance of the accused for his court setting. All these steps are essential to avoid a deprivation of the presumption of innocence to which any accused is entitled.

In a few prominent cases involving Latinos, authorities have improperly utilized bail by increasing it or denying it on the basis of ethnicity or of pro-Latino political or labor activities. In one case, Sal Castro, a Latino school teacher who led the LA school walkout to promote educational improvement, was arrested on a misdemeanor conspiracy charge. Unable to raise the $1,200 bail, he remained in custody until Monday, when bail was set at $500. A court official reduced the amount in half, and Castro was released on his own recognizance. Obviously, Castro was not going to flee from his occupation, but his weekend in jail nonetheless punished him (U.S. Commission on Civil Rights 1970, 48–52).

The same occurred in a South Texas farm-worker dispute with the Texas Rangers in the late 1960s. Police arrested a labor organizer on a Friday evening for allegedly threatening a Ranger’s life. After the DA set bond at $2,000, the same as the maximum fine, a wealthy landowner put up a property bond. Authorities demanded copies of his tax records to confirm his worth even though they were aware of his wealth. In another incident, Rangers arrested eleven men for “secondary picketing.” The offense carried a maximum $500 fine, but the bail was vengefully set at $1,000 (U.S. Commission on Civil Rights 1970, 48–52).

Jurists in many states serve by partisan election. These judges, regardless of political affiliation, often follow the prosecutor’s recommendation on bail, disregarding the financial ability of the accused. In Houston, the nation’s fourth-largest city, some Democrats and most of the Republican jurists in the 1990s rejected the services of the county’s Pre-Trial Release Agency (PTSA). These jurists promoted the view that PTSA-monitored persons awaiting trial constituted a safety risk. Ironically, PTSA provided a monitoring system and assigned a clerk to maintain contact with the accused, a level of attention greater than private bail companies.

In addition, PTSA-supervised accused were generally charged with nonviolent crimes, and many were not likely to afford a bail bond. These releases ameliorated jail overcrowding. Noncooperation with PTSA thus coerced many indigents charged with nonviolent offenses to remain in custody, cost the county taxpayers attorney’s fees alone exceeding 1.5 million dollars,11 and eventually resulted in many pleading guilty to time served, thus compromising the presumption of innocence.

Robb Fickman, a former president of the Harris County Criminal Lawyers Association (HCCLA), urged officials to solve the jail crowding problem. The HCCLA, based in the large, racially diverse city of Houston, Texas, has continually expressed concerns about jail overcrowding, which has existed from the 1980s and continued through the first decade of the twenty-first century (Collier 2014). In response, the Board of Judges, representing thirty-seven criminal courts, appointed one jurist to oversee possible remedies. Fickman pressed the DA and the defense bar to collaborate. Fickman questioned the propriety of setting punitive bonds that effectively hold persons in custody, and of having jurists assume a role as immigration agents by setting excessive bonds on suspected undocumented persons. He criticized the so-called “Plea Mill” in which the courts hold poor people in custody to entice them to plead guilty, in lieu of continuing in jail until the judge can hear the trial (Fickman 2009, B11).

One’s financial status figures into the justice formula. For instance, the affluent family can easily make bail and buy their freedom while they negotiate an outcome to the charge. On the contrary, the poor do not have access to bail funds. Considering the alternatives of PTSA and personal recognizance (PR) bonds, the imposition of a professional bail effectively discriminates and punishes the poor before they are even adjudicated. The average premium for a bail bond is 10 percent of the amount of the bond. The poor, which include a disproportionately high number of Latinos, cannot easily raise the fee. The financial distinctions thus impact equal justice.

Fickman urged judges to utilize PR bonds for indigents to decrease the unfairness of having the poor accused punished additionally or deprived of equal rights. A system that does not provide an alternative converts into one based on the presumption of guilt, and, as such, constitutes a gross violation of human rights. Unfortunately, too many jurists deny PR bonds even if the accused has lived in the area for years, has an extended family, and has no history of violence. By remaining in jail, a person loses his earnings and often his job. His family suffers and qualifies for welfare. All of this happens before the accused is tried (U.S. Commission on Civil Rights 1970, 51).

Regrettably, political demands and reelection interests interfere with objective judicial assessments. This climate drives some judges to assume a “Tough on Crime” mentality. Who is not in favor of being strict with convicted criminals? The problem occurs when this attitude spills over into the pretrial and trial arena when an accused is supposed to enjoy the due-process right to the presumption of innocence (Laufer 1995, 336–41). Another inherently unfair result surfaces from the bail industry’s financial interests. Those who pay can play. As a result, adherence to the private arena means that poor “criminals” are kept off the streets while the rich ones, regardless of the severity of their crime, can obtain their freedom.

As a result of numerous criticisms of the bail bond system and pretrial detention practices, Congress enacted the Federal Bail Reform Act12 to revise procedures to avoid the needless detention of financially limited persons. Specifically, the law provided that “every person charged with a non-capital offense in federal court must be released on his personal recognizance or upon execution of an unsecured appearance bond, unless the judicial officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the accused as required.”¹³ Unfortunately, state judges, motivated by their political surroundings, are not bound by the federal statute.

Oftentimes, the mere fact that the person is of Latino descent creates an assumption that the accused is a flight risk. The continuous focus on undocumented aliens and immigration reform leads allegedly responsible persons to perceive all U.S. Latinos in the immigrant category. A full due-process inquiry allows a jurist to learn that a person whose bail was set arbitrarily at $35,000 (Fickman 2009, B11) was not an “illegal,” a despicable term utilized here only to emphasize the injustice of prejudicial speculation. These stereotypes have incredibly led to the “deportations” of permanent resident aliens and American citizens (Hernandez 2007).

Bail practices similar to those we see today have existed for decades. The Civil Rights Commission in 1968 found that the bail system in the Southwest was “used more severely” against Latinos than against Anglos (U.S. Commission on Civil Rights 1970, 52). Even where the same bail is assessed against a Latino and an Anglo, the economic factors inherently place Latinos at a disadvantage. As a Supreme Court jurist stated, “There is no greater inequality than the equal treatment of unequals.”¹⁴

Financial capacity to pay for a bail bond is only one factor. A complaint alleges that some judges, e.g., in Houston, revoke bonds if an accused appears without a hired attorney and requests appointed counsel. The jurist might think the accused is indigent, but he could have siblings or a financially capable uncle who bailed him out of jail. If a person is provided a due-process indigency hearing and found to be indigent, the jurist is ethically bound to adhere to the law, which requires that the indigency of the accused, and not his uncle, determines his financial status. At this point, the judge must set aside conjecture or political philosophy and decide whether, based on the evidence, the accused merits the appointment of counsel (Fickman 2009, B11).

While those who received the death penalty were primarily male, two Latinas were hanged between 1851 and 1863. These murder “prosecutions” occurred in California and Texas, states with well-documented anti-Latino prejudice. Both “trials” lacked the rudimentary elements of due process. As a result, these sentences qualify as lynchings by mob (Josefa Segovia in California) or at least a due-process sham (Chipita Rodriguez in Texas). The Segovia case occurred during the gold rush days. The rapid accumulation of racially different people and the greed for gold inevitably led to violence. Add liquor and the limited number of women to this formula and one can expect major problems. An intoxicated man named Cannon forcefully entered Segovia’s home. One version claims she fatally stabbed him in self-defense (Gonzales 1999, 86), while another claims that Cannon left and Segovia stabbed him when he returned the next day to apologize (Pitt 1966, 73). Without a doubt, both the speedy trial and the lack of an actual investigation contributed to the conflicting accounts.

The U.S. Constitution guarantees a “speedy” trial, but Chipita’s trial occurred swiftly and unfairly. Even the best lawyer requires actual preparation time. Her counsel’s role indicates nominal participation. For example, the attorney withdrew a motion for new trial (Smylie 1970, 28). Why would counsel withdraw the motion in the face of so many egregious violations? Was counsel merely a means to the legal “lynching” of a Latina who killed an Anglo? In the end, the judge did not provide Chipita a review before the Texas Supreme Court, the appellate court available at the time.15

A study of frontier justice trials from this era indicates that the system granted most accused a jury trial. The trials, however, often proceeded without due-process formalities (McDowell 2007, 338, 349). Chipita’s murder conviction, for example, involved multiple procedural aberrations. First, the sheriff ordered a grand jury panel, and the sheriff then served as one of its members. Second, three of the grand jurors who indicted Chipita later served on the trial jury, violating an 1858 statute. A postmortem review discovered claims that an elderly man, a respected rancher, had confessed to being the one who killed Savage (Smylie 1970, 51, 56, 58). Over a century later, Latino activists convinced the Texas legislature to acknowledge that Chipita Rodriguez had been unjustly convicted (Acosta and Winegarten 2003, 59).

Another injustice, documented in three separate cases entitled the State v. Gregorio Cortez, occurred in 1901 Texas.16 Cortez became a fugitive to avoid the custom of being lynched, in this case aggravated by his having to kill a law officer in self-defense. To worsen matters, the brutal officer Cortez killed was a former Texas Ranger. Accompanied by his somewhat bilingual deputy, Sheriff W. T. Morris appeared at Cortez’s home without a warrant or probable cause to believe the Cortez brothers had stolen a horse. Angered by Gregorio’s denial, the sheriff pulled his firearm and shot Romaldo. Gregorio then acted in defense of both his brother and himself in fatally shooting the sheriff. At trial, the deputy admitted the Cortez brothers had not initiated any aggression. Gregorio further allowed the deputy to leave since he had not threatened them.

Considering the anti-Mexican attitudes among Anglos, Gregorio immediately chose to flee. When captured and taken to trial, Cortez presented a witness named Mayfield, who confirmed that expressions of a desire to lynch Cortez circulated among citizens of Karnes County.¹⁷ While Cortez legally exercised his right to self-defense, he realized “justice” in this case would be different. During flight, Cortez’s plight worsened when two other law enforcement officials, members of a posse, were killed. In summary, because of the use of excessive, unwarranted force by Sheriff Morris, Cortez was eventually acquitted in that death. However, the courts convicted him in the other homicides. Considering the initial injustices that set off his escape, Governor O. B. Colquitt granted Cortez a pardon in 1913 (Paredes 1958, 59).

This section closes with a brief description of a major murder case in Los Angeles County. Known officially as People v. Zammora [sic], and popularly as the Sleepy Lagoon Murder case for the area where a death occurred, the police and the prosecution initiated murder charges against twenty-one Latino men and one Anglo companion.¹⁸ America had recently declared war to fight the Japanese and Hitler’s policy of racism and hate. Yet, at home, in the barrios of East Los Angeles (East LA), racism, hate, and segregation prevailed.

Prejudice apparently explains the Sleepy Lagoon Murder prosecution. Although the judicial opinion declined to find a racial motive, the evidence suggested differently.¹⁹ The LA district attorney emphasized the “incriminating” evidence of the ducktail haircuts, the pachuco (gang member) pants, and “things of that kind” to justify prosecuting this large number of young men in the victim’s death. Five of the twenty-two later managed to obtain a separate trial, and all five were acquitted (Cortes 1974, “Sleepy Lagoon Case”). The other seventeen became the focus of the “largest mass trial for murder” in America (Daniels and Kitano 1970, 74). Twelve were convicted of murder (three for first degree murder and nine for second degree murder).20

The accused youths, residents of the 38th Street neighborhood, went to Sleepy Lagoon to “hang out” with female companions. A rival group from Downey Street attacked them. In retaliation, the defendants returned to the barrio for reinforcements. The prosecutor’s theory alleged a conspiracy among the 38th Street defendants to seek revenge by committing murder. According to the appellate court, a review of a 6,000-page record and 1,400 pages of legal arguments produced scant evidence that the defendants engaged in the premeditation, deliberation, malice, and intent necessary for the various murder convictions. Instead, the appellate court found the 38th Street group planned to engage in a fistfight with the boys from Downey.²¹

In the process of the fight, or maybe even before the fight, Jose Diaz received a blunt-trauma head injury and died. Witnesses saw Diaz leave the party premises before the 38th Street defendants arrived. Diaz left accompanied by two other guests, who were not produced as witnesses.²² The appellate court mandated the entry of an acquittal, stating that the evidence was legally insufficient to support any murder verdict.²³

Zammora involves a prosecution that never should have been presented as a murder for several reasons. First, a first-degree murder case requires proof of specific intent to commit a purposeful taking of human life, and that was utterly lacking. Second, the evidence requires direct proof from an eyewitness, some indirect or circumstantial proof, or a noncoerced admission by the accused, and this proof was missing. Third, the prosecution knew the evidence was legally insufficient, but they proceeded anyway, capitalizing on anti-gang and anti-Latino prejudice. Fourth, due process requires that an accused communicate with his counsel in order to assist with confrontation of the witnesses. The judge’s decision to try all the men in one trial created serious problems as to compliance with these rights. The trial judge ordered the men to sit in a special section of the courtroom, away from their lawyers, since there was no room at counsel table.²⁴ The court held that this arrangement deprived the defendants of the effective assistance of counsel, since a trial judge must allow an accused to consult with counsel not only prior to trial but also during his trial. The court further criticized the trial of seventeen accused in one massive trial, stating that seeking swiftness and expediency appeared too much like proceeding not in the calm spirit of regulated justice, but with “the haste of the mob.”²⁵

The appellate court in Zammora closes with assessing the role of Judge Charles W. Fricke, a jurist who clearly did not adhere to judicial ethics. Nicknamed “San Quentin Fricke,” the judge had a reputation for the number of convicts he sentenced to the notorious state prison (American Experience 2002). The trial judge severely criticized defense attorneys, often in the presence of the jury. One censure involved the allegedly repetitive objections, actions that lawyers must take to protect a client. If the objections do not appear in the record, the convicted accused cannot appeal on this claim. The appellate court noted several questionable judicial rulings and comments. When counsel objected to the prosecution’s “leading” a witness to suggest an answer, the judge ordered counsel to review during the break “what a leading question is,” suggesting dishonesty on the lawyer’s part.26 Judge Fricke complained “of useless and unnecessary objections” and stated that a lawyer must have “been asleep” and thus did not recall correctly what a witness stated. When the attorney assigned that comment as misconduct, the judge cynically responded, “It is about time for you to make another one [objection], anyway.” After the attorney asked the judge to instruct the jury to disregard the judge’s comments, the judge refused.²⁷

The observant jury could easily deem the judge’s actions to suggest guilt among the Latino defendants and obstructionist efforts by the attorneys. The appellate judge described the nature of the “reprimand and severe castigation administered by the court” as both undeserved and unwarranted.²⁸ The court added that the trial judge’s reprimands materially injured the defense, especially when not even a mild censure was deserved. The judge’s comments in the presence of the jury suggested that defense counsel resorted to unethical and even evil practices. The court found that the judge’s insinuations about counsel’s good faith resulted in a deprivation of a fair and impartial trial, which due process mandates.

The California Court of Appeals decided that the complete lack of probative evidence on one hand, and the judicial misconduct on the other justified the release of all twelve men who had been improperly convicted of murder. The court also criticized the trial judge’s effectively denying an accused his “right to present his case with the aid of counsel,”²⁹ stressing that the right to counsel includes not only having a lawyer but also that “a defendant shall not be hindered or obstructed in having free consultation with his counsel.”³⁰

Due Process Injustices in Modern Death Penalty Cases

A Texas appellate decision and a federal habeas corpus decision provide the facts in State v. Ricardo Aldape-Guerra. These facts unfortunately reveal the extensive efforts to impose the death penalty, obviously the most extreme and final punishment allowed by our law. The author seeks to provide an example of what our modern-day “justice” system tolerated until the Mexican government and a major law firm provided assistance. The two Aldape court opinions reveal amazing factual differences. They agree on only two facts. First, Officer James Harris of the Houston Police Department approached and ordered Ricardo Aldape-Guerra and Roberto Carrasco-Flores to stand against the police vehicle. Second, Officer Harris died from three shots to the face. Instead of using the dual surnames utilized in Latin America, the rest of the discussion refers to these two men as Aldape and Carrasco, their paternal surnames. The facts gleaned from the Texas case refer to Aldape and to his companion erroneously as Roberto Flores. The author utilizes the actual name, Carrasco, when “Flores” appears in the state opinion.

The Texas opinion reveals that on the night of July 13, 1982, Officer Harris received a complaint from a pedestrian that a black car almost ran over him. Harris quickly found a black Buick stalled on Walker Street in a predominantly Latino neighborhood. Harris stepped out of his vehicle to question the occupants. Aldape, alleged to be the driver, and his companion, Carrasco, approached Harris as ordered. One of the two then fatally shot Harris three times. The investigator described the bullets as entering the left side of his face and exiting on the right side. Detectives recovered three bullets from a 9-millimeter firearm from the side of a house in a location consistent with the direction of travel of the slugs that killed Harris.31

Jose Armijo and his two children, 10-year-old Jose Jr. and his 2-year-old sister, drove to the point of the stalled vehicle. After the officer’s shooting, Jose Sr. attempted to reverse. Unfortunately, a shot fired from a 9-millimeter pistol from the north side of the street fatally wounded Jose Sr. Aldape and Carrasco fled on foot in an easterly direction down Walker, with one man on the north and the other man on the south side of the street. Each fired his respective weapon as he ran. Two 9-millimeter cartridges were later found on the north side of the street, and two cartridges from a .45 caliber pistol were discovered on the south side of the street.

As a general rule, physical evidence never deceives. Evidence in Aldape strongly points to the conclusion that Mr. Armijo’s killer used a 9-millimeter firearm and ran on the north side of Walker. The jury heard that Carrasco used a straw purchaser a month before the murders to obtain the 9-millimeter gun used to kill the two men. Police found Carrasco, who died later the same night in a shootout with police, with that same gun. The physical evidence absolutely points to Carrasco, not Aldape, as the one who murdered Harris and Armijo.

The prosecution nonetheless represented in trial that Aldape was the actual shooter. Some witnesses, as will be explained, corroborated this version. How could this possibly occur, considering the claim among forensic scientists that the physical evidence never lies (Lewis and MacDonell 1984)? To prove their claim, prosecutors needed an eyewitness to state that Aldape pulled the trigger. Under the law, mere presence at the scene of a crime does not suffice. In addition, running away fearfully or hiding after an acquaintance or a friend kills a person does not impute culpability.

Ballistics investigators found the slugs from 9-millimeter bullets lodged in the side of a house. Investigators followed the likely path of these projectiles and found the expected location of the slugs. Additionally, upon searching Carrasco’s body, police found a magazine containing twenty additional 9-millimeter rounds. Inside Carrasco’s right-front pants pocket were eleven more loose rounds of 9-millimeter ammunition. Convincingly, police found Harris’s service revolver tucked inside the waistband of Carrasco’s pants. Aldape was not armed when found; however, officers found a bandanna wrapped around a .45 caliber pistol some two feet from him. Ballistics established that this pistol had fired the .45 cartridge casings found on the south side of Walker Street, contradicting claims by witnesses that Aldape ran down the north side of Walker.32

The major issue centered on who actually shot Harris—Aldape or Carrasco. Ten-year-old Jose Armijo Jr. provided the most damaging and apparently certain identification of Aldape as the shooter. His certainty began to decrease when he stated that one of the men got the officer’s gun and that he then observed both men run down Walker on opposite sides of the street. Jose Jr. claimed Aldape ran down the north side of the street, next to Jose Jr.’s side of the car. He added that as Aldape ran by their car, he aimed his gun into the car and shot his father, Jose Sr. The record in the trial is silent as to how a 10-year-old child was able to state which is the south and the north side of Walker, other than being told by another witness or by a police officer.

Several civilian witnesses testified for the prosecution. Patricia Diaz testified that she became scared, looked down, and heard four shots. Herlinda Garcia claimed Aldape pulled something out of his pants and shot the policeman. Garcia added that Aldape ran down the north side of Walker. Vera Flores, Herlinda Garcia’s sister, standing in the same position as Herlinda, initially claimed that Aldape fired the fatal shots. She later admitted that she could not say whether Aldape or Carrasco shot Officer Harris. Interestingly, Vera contradicts her sister Herlinda by declaring that Aldape ran down Walker on the south side. Herlinda and Vera were together at the crime scene, yet they saw things quite differently, a phenomenon explained by eyewitness experts like Dr. Elizabeth Loftus and others (Morgan et al. 2013, 11–17).

After the State rested, the defense presented two teenage boys, Jacinto Vega and Jose Heredia, as witnesses. Both identified Carrasco, the passenger, as the one who shot Officer Harris. On cross-examination, the State impeached both witnesses, claiming a prior inconsistent statement, their acquaintance with Aldape, and their fear of him.33 The alleged inconsistency arises from Vega’s pointing to Aldape in the lineup. Vega explained that he identified Aldape because police had simply asked him whether he recognized anyone, not whether anyone in the lineup shot Harris. The other defense witness, Heredia, identified the passenger Carrasco as Harris’s killer. Heredia referred to Carrasco as “Werro,”³⁴ a misspelling for Güero, a Spanish nickname for a blond-haired or light-complexioned man. To question their credibility, the prosecution got Vega and Heredia to admit they knew Aldape.

Jose Manuel Esparza, Aldape’s housemate, testified that Carrasco ran into the house and stated he had just shot a policeman. Carrasco had his 9-millimeter gun and another gun stuck in his waistband. Esparza testified that when Aldape ran up to the house, he told the two men to leave. Another man present, Mr. Luna, claims Aldape stated that Carrasco killed a policeman.

In his own defense, Aldape testified that he placed his hands on the police car’s hood as the officer ordered. Aldape stated that Harris held his gun while telling Carrasco to go to the police car. Aldape then heard shots close to his ears, saw the officer fall, and witnessed Carrasco pick up the officer’s weapon. Aldape ran down the south side of the street and fired two shots into the air because he thought someone was chasing him. Aldape’s claim of running on the south side is corroborated by .45 caliber casings found on that side. Ballistics tests also support Aldape’s claim that the .45 caliber pistol found near Aldape fired the casings found on the street’s south side.³⁵ When Aldape reached his house, Carrasco was already there. Carrasco told Aldape that he had shot into Armijo’s vehicle. Aldape then ran out the back door and hid behind the horse trailer until police found him.36

Two judges dissented from the Texas decision to affirm Aldape’s conviction. First, the state’s own witnesses contradicted each other as to who ran on which side of Walker. This information proved to be vital, since whoever fled down the north side shot Armijo with the same weapon used to kill Harris. The dissent described the testimony as nothing more than a classic “swearing match.” The dissent took notice of Patricia Diaz’s demonstration of Aldape “pointing,” although she admitted she did not see anything in Aldape’s hands. She ducked and then heard shots. She admitted that she only observed “the way Aldape was standing,” concluding, “I didn’t exactly know who shot who.”³⁷ The dissent also pointed to critical evidence regarding Vera Flores. She first stated she heard three gunshots, but she did not see a gun. Questioned as to why she claimed Aldape fired the fatal shots, Flores surprisingly admitted her speculation by explaining, “When he started running, I just seen him shooting down the street.” An extremely crucial claim by Flores is that Aldape ran on the south side of Walker.³⁸

The dissent analyzed how all of the State’s witnesses, except Diaz, testified that Aldape killed Harris. On further scrutiny, the dissent found these claims to be not assertions but mere conclusions. Garcia claims to have seen what appeared to be a gun, which Aldape pulled from his pants, and then she heard shots. However, by this point, she was running from the scene. Her ability to observe was compromised. Since she saw Aldape, Garcia assumed he fired the fatal shots. She admitted she never saw Carrasco there, but he clearly was at the murder scene.

Galvan, who lived on the north side of Walker, saw Aldape approach Harris, saw Harris touch Aldape in some manner, and then saw the flash and heard gunshots. She then saw Aldape run in her direction. She did not see a gun in Aldape’s hand. According to the dissent, the most remarkable aspect of these witnesses’ testimony is that when the killing occurred none had any idea what Carrasco was doing or even where he was.³⁹

It was nighttime, a factor that may explain these contradictions. Clarity and perception are substantially diminished. In addition, eyewitness experts like Dr. Elizabeth Loftus describe factors that can result in the distortion of testimony. These include the frightening and stressful aspects of a violent incident, particularly where there is a discharge of firearms (Morgan et al. 2013, 11–17). The dissent argues that the evidence from these other witnesses besides Jose Jr. does not remove the reasonable hypothesis that as Aldape approached the patrol car, Carrasco came between the two cars, positioned himself beside and behind Aldape, stood just to Harris’s left, and shot Harris. This theory comports with the physical evidence in the case. Furthermore, the dissent found it inconceivable that between the killing of Harris and the subsequent gun battle with police, when the murder weapon was discovered on Carrasco’s person, Aldape and Carrasco would have traded weapons.40 Another interesting and exculpatory aspect of the evidence for Aldape is that Carrasco had thirty-one additional 9-millimeter bullets.⁴¹ Aldape did not have any.

Jose Jr. at first claimed he did not know what the two men looked like, nor did he know what they had worn. He later explained that fear caused him to respond in this fashion. At trial, however, he specifically identified a man who fit Aldape’s description as his father’s killer. The youngster stated that the man had long hair and wore a green shirt, consistent with Aldape. For some reason, defense counsel did not question the young boy on his ability to perceive the shooting itself. For instance, Jose Jr. suggested at trial that when he heard the first shots, which killed the officer, he pushed his baby sister to the floorboard, where they remained until the two men had run away.⁴²

As to the child’s assertion that Aldape killed his father, Dr. Loftus has found in her studies of memory and stressful incidents how individuals are affected by the information they later learn from other sources (Morgan et al. 2013, 11–17). This expertise raises the strong suspicion that young Jose’s consultations with police, prosecutors, and witnesses may have influenced his memory of what occurred.⁴³ His identification of Aldape may have been primarily affected by Hilma Galvan, as will be later discussed based on the evidence developed at the federal habeas hearing.

ALDAPE’S FEDERAL HABEAS CORPUS HEARING

In 1995, with the support of the Mexican Consulate in Houston and a pro bono effort by Scott Atlas, a prominent Houston attorney, U.S. District Court Judge Kenneth Hoyt issued an order that granted habeas corpus relief to Aldape. In the federal decision, Aldape is known as Guerra. For consistency, he will be referred to as Aldape in discussion of the federal case.

Without a doubt, the federal jurist radically disagreed with the majority findings of the Texas court. Judge Hoyt concluded that Aldape placed his hands on the officer’s car, but Carrasco pulled a semi-automatic pistol and shot Harris three times. Carrasco had light skin, was clean-shaven, and had short hair. Aldape, on the other hand, had black, straight, shoulder-length hair, a mustache, and a beard.⁴⁴

Aldape complained that prosecutors informed four persons during the jury selection that he was an “illegal alien.” The prosecutors claimed this status constituted evidence that the jurors could consider when answering the punishment special issues. The state trial judge concluded that entering the United States without permission was irrelevant to the issue of a defendant’s propensity for future dangerousness.⁴⁵ This prosecutorial effort might explain the efforts to pin a capital crime on the survivor, a possibly innocent person. Aldape also claims he was denied an impartial trial for several reasons. For one, police took him to the crime scene and before witnesses in handcuffs and with bags over his hands. In addition, he was the only Latino with long hair in the lineup. Before, during, and after the lineup, the police allowed the witnesses to communicate among themselves. After the lineup, several witnesses gave conflicting second statements declaring that Aldape was the shooter.

Hilma Galvan’s actions might explain these developments. She spent most of her time in the hallway talking to Jose Jr. and to Flores. She pointed toward Aldape and talked to Jose Jr. and Armando Heredia in Spanish, loud enough for all the witnesses and the officers in the room to hear. Galvan stated that since Carrasco had died, they could blame the man who “looked like God” because of his long hair, or the “wetback” from Mexico, with shooting the officer. Galvan continued spreading her anti-alien rhetoric by claiming that Mexicans only come to the United States to commit crimes. The federal jurist attributed Galvan’s actions to her bias against Mexican nationals who “take jobs from Americans.”46 The judge concluded that Galvan’s prejudice against undocumented aliens was probably the motivation for the inconsistencies between her own statement and her testimony.

Notwithstanding the number of witnesses who contradicted Aldape’s role as the shooter, the DA promoted this claim. During a pretrial meeting of the witnesses, the DA told the witnesses that Carrasco was dead and that Aldape was the shooter. During the trial, two life-size mannequins were stationed in front of the jury. Carrasco’s mannequin was bloody and riddled with what appeared to be wounds, while Aldape’s had no such marks. Richard Bax, one of the prosecutors in the 1982 trial, at least conceded at the habeas hearing that the physical evidence “totally pointed towards Carrasco-Flores as being the shooter.”⁴⁷

Aldape further claimed that the prosecution had failed to disclose materially exculpatory evidence, and used evidence known to be false, or half-truths, to convict him. For example, Patricia Diaz got a glimpse of Aldape after she heard the shots and observed what appeared to be empty hands. An officer insisted that Diaz, a minor in 1982, had seen more and threatened to take away her infant daughter unless she cooperated.⁴⁸