 |
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
Published June 26, 2006
 Photos: Individuals involved in the investigation and trial
|
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.
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.
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.
mpossley@tribune.com
smmills@tribune.com
Copyright © 2006, Chicago Tribune
|
|
