Interview with Scott Atlas

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Table of Contents 
  •  Background 
  •  Early career 
  •  William James Rummel Case 
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  •  SOLIS: So I have a few basic questions for you that I’m curious about, but really I would just like you to tell me about not only what you can remember but kind of just your experience of being involved in this case, but if you don’t mind, I’d like to know just a little bit about you before the case and just leading up into the case, just to give a little background. 
  •  SCOTT ATLAS: Okay, when you say about me, are you talking about, ‘I was born in a log cabin’ kind of thing, or— 
  •  SOLIS: Whatever, whatever you want to share just to give a little background. 
  •  ATLAS:   Well, I was born in Austin while my father was in law school. They moved to McAllen, south Texas on the border—close to the border—when I was eight or nine months old. And I grew up there, attended the public schools in McAllen my entire life. [I] graduated from McAllen High School, went to Yale University in New Haven, Connecticut for four years, came back, spent a little time in the military, and then went to the University of Texas School of Law and graduated in 1975. [I] spent a year clerking for a federal judge, a judge on the U.S. Court of Appeals for the Fifth Circuit, Tom Gee, who was actually involved in the Aldape case, eventually; [he] helped us try the evidentiary hearing in federal court in 1993. Then [I] went to work in Houston for Vinson & Elkins in November of 1976 in their commercial litigation section—the name changed a little over the years but essentially it was commercial litigation— and worked there for almost thirty years. 
  •  About several months after I joined the firm I decided that I had an interest in working on a pro bono case if I could. While I’d been clerking for Tom Gee, at one point he had come into my office and told me he needed help finding a lawyer for an indigent defendant in a criminal case, a criminal appeal. He said that he had a file somewhere of lawyers who had written him on their own and volunteered to take cases, and that his secretary could help me find the file. He wanted me to call them, see if they were still alive and if so, if they had any interest in taking the case. Which I did, found a lawyer for whatever this case was. But it seemed like an inefficient way to find lawyers for pro bono cases. So when I got to Vinson & Elkins, I wanted to work on a Fifth Circuit appeal but I didn’t know what the firm’s rule about it was. So I started asking around, and I discovered that there were a number of people who had handled similar cases, but that all of them were people who had worked for federal judges before. […] The judge would call them, or they told the judge they wanted a case. So that told me that number one, Vinson & Elkins didn’t mind you doing it, and number two, not many lawyers in the firm were aware they had the ability to do that if they chose and didn’t have the means of finding a case.   
  •  So I decided that I would solicit lawyers in the firm to see if they had any interest in taking a Fifth Circuit appeal. So I sent a memo—this was in the days long before email—I sent a memo to everyone in the firm under some arbitrary cutoff age. I forget what it was, it was something like thirty-five, which at the time seemed like the [age] when you dropped off the face of the earth. My attitude’s changed a lot about that over the years, but it seemed reasonable at the time. And I volunteered to be a go-between for all these lawyers so that they would never have to answer the phone with a judge on the line asking them to take a case and feel like they had to accept even if their schedule was just crazy. Several dozen lawyers responded, volunteering to take a case. And I then sent a letter to all of the Fifth Circuit judges in the state of Texas volunteering the services of the lawyers in the firm, and offered to be their go-between. All they had to do was one-stop shopping. All they had to do was contact me and I’d find a lawyer for them.   
  •  This was—I’d started in November of ‘76, this was late winter, early spring of ‘77. And I got the first call from the law clerk of one of the judges asking if I’d be willing to take a case, it was actually the clerk for Tom Gee, for whom I’d clerked, who knew I was interested in a case, and asked if I’d agree to take the first case since I had signed the letter, and I said sure. [It] turned out to be an extraordinary case, of a fellow named William James Rummel.  

    Rummel was from San Antonio; he’d been given an automatic life sentence under the Texas three-time loser statute, which at the time said third felony meant automatic life. And his three felonies were what made the case so fascinating. He basically had three petty property offenses totaling two hundred and thirty dollars. He had forged a twenty-nine dollar and thirty-six cent check to pay his rent, he had sold four tires that had been stolen—he didn’t steal them but he knew they were stolen—for eighty bucks; and then (phone rings) let me turn this off […]

    His last offense was he had taken a hundred and twenty dollar, seventy-five cent check, I think, to fix an air conditioner and then hadn’t done the work, and they claimed it was fraud, that he’d taken the money without intending to do it. So for two hundred and twenty nine dollars and eleven cents he got an automatic life sentence. His case was in the Fifth Circuit by that point, and let me short-circuit it, because that case is worth a whole other three or four hours of conversation—I ended up arguing and winning—it was—I did research and determined that it was the first case in which the Fifth Circuit and the Supreme Court had ever been asked to decide whether there was a limit on how long a sentence you could get under the Eighth Amendment’s cruel and unusual punishment clause. And by the time the dust settled, I won the case two to one on the Fifth Circuit on the Eighth Amendment issue. I then lost eight to six when the entire Fifth Circuit reheard the case. Then the Supreme Court agreed to hear the case, and I argued at the age of twenty-nine. […] I can assure you there’s nothing more dramatic for a lawyer, especially for somebody who’s not even in their thirties.   
  •  I lost the case five to four. They ultimately decided that they did not want to interfere with the discretion of the prosecutors. And there was a lot of difficult line-drawing questions, how long a sentence is too long. Finally got him out on ineffective assistance of counsel, not me, but the lawyer who represented him—[…]—the lawyer who’d represented him for his last crime testified in deposition, essentially that he knew where the people were that could testify about work he tried to do on repairing the air conditioner system, and if he tried it all and then stopped it was just a breach of contract. If he didn’t try, it was a fraud argument, but if we could prove anything about his efforts to fix the air conditioner it would eliminate the fraud claim.  

    And he essentially testified that Ricardo—that Bill told him where the witnesses—where he could find witnesses, but they were all bartenders who worked in what he called “a bad part of San Antonio.” He said he only got paid a hundred dollars to take the case and he put it something like this, he said, “For a hundred dollars I didn’t think it was worth my time to go walking through sleazy bars looking for witnesses.” 
  •  So I finally convinced a judge that was ineffective assistance of counsel, he ordered a new trial, then I convinced my client to plea bargain because the state was going to appeal and I thought we had a very strong argument, [but] it was the only arrow we had left in our quiver. He agreed to time served, and after a snafu that—they lost the judge’s order—he got an eight-year sentence backdated eight years so he could walk out for time served. They couldn’t find the order; then they found it and the judge had mistakenly given him an eight-year sentence without backdating it, and we finally found the judge at home late that night. […] The program ended, he finally came down and signed, revised the papers, and Bill got out.   
  •  And that case actually played a major role in the decision of the government of Mexico to approach me about the Aldape case, because I—in several ways. First because lawyers in Washington who I knew well through some American Bar work, like a fellow who later because Solicitor General of the United States was doing legal work for the government of Mexico. He knew about the work I’d done on the Rummel case and he knew me personally and so he recommended me. I had approached Governor Mark White about the possibility of a pardon in the event that we lost Rummel’s case because that was the only other option we had, and I also spent some time lobbying the legislature and lobbying him to try to change the three-time loser statute. I was not very effective at it, but with the help of a very talented state legislator, Ray Farabee, and some others, the law was finally changed, so that now the law says that on a third felony, they must give you twenty years. The jury can give you more, but it’s not automatic life. 

    It wasn’t as—I thought it should have been something less than twenty—I think was arguing for fifteen—but at any event, the law is better now than it was back then. But I got to know Mark White a little bit that way and through some other ways. So they approached a number of people asking for recommendations about lawyers and one of the people they talked to was Mark, because the governor’s son I think was working at the consulate at the time, and he recommended me or maybe they asked him what he thought about me and he knew me, so it came from several different directions. So that case played a significant role, I think because it communicated that I was a sucker for a hard luck case. At least, I had a tough time saying no. So that’s, that’s probably far more background than you wanted— 
  •  SOLIS:   No, that’s good. 
  •  ATLAS:   There actually is a connection. 
  •  SOLIS:   That’s great, because I knew—we spoke briefly on the phone a while back, and I think you’d mentioned that you’d argued before the Supreme Court, but I didn’t know the details of the case, which is—which are fascinating—and I didn’t know that that had a direct role in you taking Ricardo’s case, and that was—one of my main questions is how exactly did that happen, that is, your involvement with Ricardo’s case, and you’ve already— 
  •  ATLAS:   All I knew at the time was I got a phone call from Ricardo Ampudia, who was the Consul General from Mexico to Houston in 1992, asking if I would agree to meet with representatives of his office to talk about the possibility of representing someone on Death Row, a Mexican national who was on Death Row. I asked what he was convicted of. 

    He said, “Murdering a Houston police officer.”

    I told him I had no experience handling capital cases, had never touched a capital case, wasn’t a criminal lawyer, and he said he understood that but still wanted to talk to me. I didn’t want to be rude, he was an official of a foreign government, so I thought the least I could do was honor his request to meet, so I agreed to meet. His legal representative—I don’t recall Ricardo attending that meeting—but I know his legal representative and a woman who was then representing Ricardo named Sandra Babcock who was working at the Texas Resource Center, a now-defunct program that at the time was providing legal representation for indigents on Death Row in Texas. It had some federal funding that was later cut off, I think. But Sandra and Jorge Ruiz who was the legal representative came to my office at Vinson & Elkins, and we met, and they painted a pretty disturbing picture of someone who they believed was innocent and had been convicted as a result of unfortunate circumstances and what they believed was police and prosecutorial misconduct, although frankly they didn’t have the full picture at the time […].  
  •  In any event, they made a pretty convincing argument that there was a serious question about Ricardo’s innocence. I had never—as I said, I had never had any involvement in a death penalty case, I had very little background in even reading about cases, didn’t know anybody, had never talked to anybody about any capital case, and I just always assumed that if you were convicted and your appeal was affirmed, that you were guilty and you deserved whatever the punishment was for the crime. I had really not thought the matter through at all.   
  •  And the argument they made was strong enough that I committed to at least review some files for them. So I—I don’t remember exactly when the meeting took place, but it was sometime in early 1992 I believe because I got involved in the late spring, early summer of ‘92, is my recollection: you’ve got the dates, so that will obviously show when I got involved in the case formally. But I took the trial transcript, some of the, much of the jury selection transcript, the briefs, police reports, investigative reports and whatever other material they gave me, it was far more than I bargained for, because in death penalty cases, they’re different from other criminal cases because you have to interview each potential juror alone, one at a time, instead of posing your questions for the entire venire; so instead of jury selection taking a day or two, it often takes a month, in a capital case, which means there’s a very long transcript. And by the time—I took the material with me, I think it was a July Fourth weekend. It was in any event some holiday weekend because my family and I went down to South Padre Island, and they went out on the beach and I stayed inside and read transcripts. And every time my wife and kids came back up to the apartment I had some other outrage to share with them about something I’d read in the transcript. I could go into detail about it but you’ve seen some of the materials. And by the end of the weekend, I had at least tentatively convinced myself that I should take the case. And I got back to Houston, I called, and I told them I’d do it. 
  •  SOLIS:   Yeah, and in fact, there are some things that I want to—I don’t want to jump ahead too much, but there are some things that I would like to ask you about that I’ve noticed that you—that I think, based off of the role that they play in the argument that you’re making, I think that those are the things that outrage you the most, that is, the constant emphasis on his status as an illegal alien— 
  •  ATLAS: As an undocumented, right. 
  •  SOLIS: —what they were calling “illegal alien,” and especially some of the comments that the prosecutors made, both during voir dire and during the closing punishment. Those are the things you emphasize, and so I can see that those are the things that outraged you. 
  •  ATLAS:   Well, remember, let’s distinguish between what I understood just after reading the paper transcript and what we later discovered in our investigation.  

    SOLIS: Okay. 
  •  ATLAS:   Obviously the eight or nine or ten witnesses that we ultimately found who told us that the police and prosecutors had essentially threatened them into committing perjury, or signing affidavits that they either didn’t understand or thought were inaccurate or simply didn’t tell the whole story—I didn’t know anything about that at the time that I was reviewing the materials.  

    Reviewing the materials, you’re right, I think you’ve summarized accurately what troubled me the most. The prosecutors had made a number of comments that were truly outrageous in my view, about, essentially saying that if they convicted him of this crime, they could take into account the fact that he was an illegal alien when deciding on the appropriate punishment, which was as you know, became a very, resulted in—that resulted in a very inflammatory exchange between me and the prosecutor once I got him on the witness stand many years later.  
  •  A couple of other comments they made about the impact on the murder victim’s family, which is technically not something you’re supposed to say in a criminal trial because it doesn’t have anything to do with whether somebody’s guilty; it may—it’s definitely relevant to punishment, but not whether somebody committed the crime. Obviously it had a tragic impact on the victim’s family, but that doesn’t tell you who did it. The reference to some other murder that had been committed the same night—now I didn’t know when I read that in the trial transcript that that murder was a complete fiction and the police knew it was a fiction, but I did know that it was, it did seem like it had an inappropriate inflammatory, obviously inflammatory comment made to the jury that nobody ever proved, and as a result Ricardo’s lawyer had no opportunity or at least didn’t take any steps to disprove.  

    And the affidavits that I saw in the record that the witnesses had signed—I don’t remember how much I was able to piece together the timeline in that very first weekend, sort of stacking them up according to the time that people signed them to see how peoples’ stories changed over time; my guess is that probably, I could see that the affidavits, that many of them seemed to be confused about who the shooter was and some were more certain than others, but most of them were quite vague.   
  •  I cannot recall what else troubled me, except that what I could tell from the records, almost immediately, even though nobody pointed this out to the jury, was that there was a serious question in my mind about how Ricardo could have been the shooter at all because of where everyone located him at the time of the shooting. I can talk about that on the record, on tape if you want. I know you understand the issue, but the short of it is, everyone who testified placed Ricardo at the front of the police officer’s car, which was basically five or six feet due south of where the police officer was standing, since he was standing right behind his open car door. All of the forensic evidence pointed to the shooter standing within a couple of feet due east of the police officer shooting east to west. There were powder burns, which show that the gun was shot at very close range. The police officer was facing south and the bullet entered from his left side of his head and went through the right side, which is east to west. There were blood spatters on top of the police car going from east to west, and they found the shells or the bullets lodged in the wall of a house due west, pretty much due west of where the police car was. So they had the shooter shooting from east to west and Ricardo standing six or seven feet south, that just doesn’t compute. And it didn’t take very long to figure out that that physically just didn’t make sense. So all of that—and I honestly in retrospect can’t tell you how detailed analysis I was able to do about the physical evidence at the time. But I think I at least roughed it out, and it didn’t make sense. I wasn’t sure that I understood fully what its significance was, but it just didn’t seem to be logical. 
  •  So I thought we had—I was very surprised to find that somebody who’d been convicted, their appeal—let’s see, where were they at the time—Ricardo’s appeal had already been affirmed in the Court of Criminal Appeals, and Sandra had already filed a state habeas petition. And I was really dismayed. I thought there was a serious question both about his guilt and about the fairness of the trial. 
  •  SOLIS:   And so you came back to Houston, contacted Sandra I assume, and some representatives from the Mexican consulate— 
  •  ATLAS: I don’t remember whom I called. 
  •  SOLIS:   —to say that you were willing to—and so what did you do, did you start working directly with Sandra, did she kind of step back in her involvement with him, let you take the lead, or what happened when you decided to take it? Did you also immediately go into further investigations? 
  •  ATLAS:   Well the first thing I did obviously was call them and tell them that I would take the case. Then I sent a memo around to lawyers throughout the firm asking for volunteers, and got several dozen lawyers from several different offices of the firm—D.C., Dallas, at some point later Austin but I don’t know Austin initially—twenty-five or so lawyers volunteered, not just litigators, lawyers in corporate sections too, which I found surprising since they had no experience with litigation, but it was terrific. 
  •  Sandra started, made copies and sent me all the materials she had, and she remained very heavily involved for a very long time. She was very committed to the case. She had a very big heart and cared deeply about this case, believed there’d been injustice, desperately wanted to see justice righted. She was the one who suggested the government hire outside counsel because she thought it needed the resources of a big firm. And so she was available whenever we needed her.   
  •  And one of the investigators at the Resource Center remained very active in the case throughout. He said was interested and available to continue working on the case, a fellow named Guillermo Canizales—and Guillermo is still here in Houston. He works for Mandy Welch I believe and Kathryn Kase at whatever the name is, if you want his contact information I can get it for you—very bright guy, completely bilingual, had done much of the investigative work in the case at that point. He continued to go out with one of the lawyers, Rick Morris, one of the lawyers at Vinson & Elkins who I signed to work onto the investigation, and they would go and interview witnesses together.   
  •  So before we went out in the field, though, we all had to read everything to see what the facts were and what the evidence was, so I assigned people to review the trial transcripts, and summarize them so that we could save time. I read the transcripts from start to finish, but we also needed summaries to refer back. I assigned people to review the briefing and prepare summaries of that so that we could know what already had been briefed. We looked at the trial, all of the trial paperwork including the police reports. I believe we had to—I don’t recall how much of the records Sandra had and how much we had to get from the D.A.’s office. But we went over to the D.A.’s office and working through the A.G., the Attorney General’s office, that was involved in the case at that point—no, I’m sorry, initially it was the D.A.’s office handling the state habeas, and they gave us access to their files. I don’t recall that they copied them, I just don’t remember the mechanics of that, but I do remember at some point finding a piece of paper in their files that they let us see that had never been produced to the defense before the original trial, at least according to their lawyers and according to the files they had, showing that they had—Remember I said there was testimony about another murder that had happened the same night. Supposedly a woman who lived in a house at the edge of a cemetery nearby had been murdered. And the police went to her house, knocked on the door, and she answered the door, and they said, “We heard you’d been murdered.” 

    And she said, “Yeah, I heard the same thing.”   
  •  Yet despite that, the prosecutors during the trial asked questions of witnesses, essentially asking if they’d heard about the murder of this woman, suggesting or at least inferring that Ricardo and Carrasco had committed the murders. That ultimately proved to be a significant piece of evidence, too.

    But we reviewed every piece of paper that we could, we looked at all the research that had been done. I then recruited a couple of friends who were very sophisticated and experts in both U.S. and state constitutional law, particularly as it relates to criminal matters; a fellow named Mike Tigar who taught at the U.T. law school for a number of years, is a brilliant trial lawyer, teacher, writer. I don’t think he was teach—was he teaching at U.T. at the time? He may have been. In any event, we had a lengthy conference call with him where I gave him a brief summary of the facts and of the issues that had been raised and asked him to sort of issue-spot for us so that we could figure out which issues were worth pursuing and which issues were less likely to be worth the time.   
  •  We did the same thing with Neil McCabe who’s a state constitutional expert—I think he teaches at the University of Houston law school, or South Texas, but I believe it’s U. of H.—in any event, we did the same thing with him on state law issues. And also recruited a friend of mine who is a criminal lawyer to just consult from time to time, named Stan Schneider. Stan ultimately became so intrigued with the case that he got involved full time. He became every bit as active as we were, and questioned witnesses, and was far more active than he’d ever expected to be. Stan actually was president of the State Criminal Defense Lawyers Association last year, a very able criminal lawyer who has handled many, many capital cases.

    And once we’d done all that, we then organized Rick Morris and Guillermo going out and trying to find witnesses, which was easier said that done because the principal witnesses who’d been interviewed by the police in 1982, at the time of the murder—as you know, there were two murders but at the time [inaudible]—were mostly teenagers. Some of them had gotten married, their names had changed, some of them had moved, some were undocumented, had returned to Mexico. And so it took some real effort to find people. But—that’s the sort of initial steps we took to get people involved in the case. Forgive me. I know I’m rambling. 
  •  SOLIS: Oh no, no, no, not at all, and this is all helpful, I didn’t know a lot of this background; and would you mind just walking us through the state habeas hearing, how that went, and then I would definitely want to hear about the evidentiary hearing for police and prosecutorial misconduct. I would like to hear about that, how that came about, and especially about the, specifically about the interaction you’ve already mentioned between you and the prosecutor for the 1982 case in the evidentiary hearing, but more generally I’m also interested to hear about your- what was the relationship like between you and the District Attorney’s office, the Harris County District Attorney’s office, if there was any whatsoever; so that’s more general, but specifically about you and the specific prosecutor at the evidentiary hearing, and then maybe leading up into Ricardo’s release, if you could walk us through that. 
  •  ATLAS:   Okay. Let’s see. Where do I start? You’re talking about several years of time, so let me try to boil it down and you can expand it as much as you want. So as a preface to this, Rick and Guillermo came to me after several weeks of interviewing witnesses, and they said, “We think you’ve gotta come talk to these witnesses yourself because what we’re hearing is far more extraordinary and troubling than we’d ever realized.” 
  •  And so I spent several weeks myself every day in the late afternoon changing clothes into jeans and heading out with Rick to go and interview different witnesses. And essentially [I] heard a very consistent story from people who hadn’t talked to each other in almost ten years. I mean, the trial was ‘82: this was 1992. A lot of these kids had graduated from, or fifteen or sixteen at the time, they graduated high school and went on to jobs or college or whatever. And the story they tell, which is essentially what came out at trial, is that many of them saw Carrasco shoot the murder victim, Officer Harris, or had seen Ricardo at the other end of the policeman’s car with his hands over the hood of the car. The standard—Officer Harris was a K-9 cop, so he had a dog in the car with him. He stops this car for speeding, it’s late at night, and so protocol calls for him to remain behind his door—I don’t know why the dog didn’t get out but the dog was still in the car—and he called Ricardo over to the front of his car and asked him to put his hands over the hood. I guess he did, called out to both men. And the witnesses either saw Ricardo standing there with his hands on the car at the time of the shooting, or they see another man, most of whom can identify him as Carrasco, pointing, or with flame coming out of his fingers, or actually one or two of them may have seen him holding a gun, although it was dark enough and far enough away that I’m not sure that’s the case. In any event, all consistent with Carrasco being the shooter, and Ricardo having nothing to do with it. 
  •  And we—I probed all these witnesses as hard as I could to find out whether there was—whether their memories were faulty, but that’s the sort of thing, once you’ve seen it, you don’t forget it. And so we ultimately prepared affidavits for all of them, and they all signed them, and submitted a very thick packet of affidavits. I sort of jokingly have told people that when we first got the case, we saw Sandra’s original habeas petition brief, and it was a hundred and fifty some odd pages long, and I just laughed and told everybody on the team that we were going to have to show her how to write a pithy, succinct brief. I had to eat my words because I ultimately learned that if you don’t make your arguments in that brief, you waive them. So you really have to throw everything in that might conceivably be important to you. We ended up filing a brief that was I think two hundred and ninety-six pages, so apparently she needed to teach me how to be succinct.   
  •  We filed a brief, and I remember exactly the date we did it because we were desperately trying to get it in by the end of the day on September 16th because of the significance of Mexican Independence Day, Diez y Seis de Septiembre. We didn’t make it. We were up virtually all night. We filed it about four in the morning and then went out and had breakfast. The hearing was the following, like the twenty-first of September. I think that’s right. And we needed to get that hearing right away because his execution was scheduled for the twenty-fourth or twenty-fifth, so it was just a few days before the execution. Just before—and my dates may be slightly off, but the basic sequence is right—on day one we filed the brief, four or five days later at most, I think we filed on a Thursday or so, and the following Monday or Tuesday was the hearing, and the execution date was scheduled just a few days later, so we were working on a very close timetable. A day or two before the hearing, after seeing my brief, I got a call from the D.A.’s office. And the D.A. in charge of the case told me that she wanted to ask the judge for a delay in the hearing, a continuance, just to give her time to read our brief, I mean, three hundred pages and a lot of materials, and obviously, and I said, “That means you’re willing to have a delay in the execution date?” and she said, “Absolutely.” I said, “Fine.” And that convinced me that the hearing was going to be pro forma, because with the prosecutor and the defense attorney asking for a delay in the hearing, I couldn’t imagine the judge not agreeing. […]  
  •  I told Ricardo, I told his parents, who came in, I told the representatives of the Mexican government, that we were certainly going to get a continuance.

    We went into court, it was a big crowd. And the judge, to our surprise, rejected the prosecutor’s request for a delay. He said he’d read all the materials, which I found remarkable that he was willing to commit that kind of time in that short a time period to do that. Now this is the same, this judge had been the president of the Harris County Criminal Defense Lawyers a number of years before he had been elected to the bench. […] 

    He was ultimately defeated for reelection several years down the line. But at the time, I thought he was a great choice because I knew he’d been a criminal defense lawyer, so I hoped he’d be sympathetic at least, a little bit understanding of what you have to go through in these cases on the defense side. But he said he’d received, he showed us a stack of letters that was several inches tall that he’d gotten from around the world about this case. He told us at the bench that he really didn’t want to have this case any more, and we could take it up with a higher court.   
  •  And so we were shell-shocked, because the execution date was just a few days away. There was one fellow in the court room who was […] claiming that U.S. justice was racist, unfair for Mexicans, and for people, and Latinos generally—he went out in the hallway shouting that it was time for revolution or some such. The whole thing was a sort of weird circus. 
  •  SOLIS:   Do you remember his name? 
  •  ATLAS:   I have it in the file, but I don’t remember. The name Alvaro Luna sounds right but I won’t swear to it. 
  •  SOLIS:   I assumed that’s who it might have been— 
  •  ATLAS:   Oh, you’ve read the records— 
  •  SOLIS:   I’ve come across the names before, so I didn’t know if that was who you were talking about. 
  •  ATLAS:   Assuming I’m right about the name—and I developed a sort of uneasy relationship with this guy, told him, “Look, your cause and mine are very different, I don’t share your views, and frankly your tactics are not something I agree with, but if you get any information that you think might be useful, please give it to me.”

    But he came to many of the hearings, and occasionally would have demonstrations outside the courthouse. [That] made me uncomfortable but I had no way to control. I couldn’t tell him he couldn’t demonstrate. I had no right to do that, and he wouldn’t listen to me anyway, and I’d never met him before that hearing, I think, not that I recall anyway. 
  •  So we immediately filed a request for a stay in the Court of Criminal Appeals, and they granted it immediately. I hoped that it was a sign that they were actually sympathetic, but in fact it was just a sign that they thought it was inappropriate for the judge to have—they wanted to have time to decide whether the judge acted appropriately. Ultimately, and I don’t remember how much later but weeks later, they dissolved the stay and denied our right to an evidentiary hearing, which just completely shocked us. So, we had all this new evidence and no court willing to listen to it, and now we were forced to file in federal court, because you can’t file a federal habeas petition until after you’ve exhausted all your remedies in state habeas proceedings.  

    So we filed in federal habeas court, we filed a habeas petition in federal court, they assigned a judge for it. And essentially it was the same petition we filed at state court, but we took out all the state law arguments because that was now irrelevant in federal court, but with all the affidavits and everything.    
  •  And at some point, I don’t recall how much later, Judge Hoyt ordered an evidentiary hearing, which we were elated by. He called the hearing for November of 1993, is my recollection, and the hearing lasted for seven or eight court days. And in federal court, the hearing—the case was taken over by someone from the Attorney General’s office because that’s the way the process works: the state is handled by the D.A.’s office, and the federal by the A.G.’s office. I’d had very good relations with the woman who was the lead prosecutor in the state habeas proceedings, a woman named Kari Sckerl, who was a straight shooter. She kept her word, provided us access to documents: They were things that we thought we were entitled to anyway, but she treated us fairly, and she never misled us, and we had a perfectly good relationship. We obviously disagreed about the facts and the ultimate outcome, what the outcome should be, but I had respect for her as a professional and I hope she did with me, and we got along just fine. I liked her as a person.

    In federal court, the assistant attorney general handling the case was a fellow named […] Bill Zapalac. A very able lawyer in the A.G.’s office who, working with Kari and I think somebody else from the D.A.’s office [Roe Wilson], but he was the one in charge at the federal proceeding, in the district court. And I had a good relationship with him. I was concerned—one of the things that concerned me about capital cases as I got more involved in them is that the A.G.’s office is often—back in those days in any event—would often seek an execution date as quickly as they could, and you’d have to go into court to get a delay, to get a continuance, and then once that court lost jurisdiction, you went to the next court, they’d try to get another execution date.  
  •  It was this constant panic of trying to get things done to meet this artificial deadline of the execution date, which obviously was not only artificial but quite frightening. And it meant a lot of all-nighters and lot of very high blood pressure and anxiety. So I asked for a meeting with the attorney general, who I knew a little bit socially, Dan Morales. Attorney General Morales agreed to the meeting, and—I remember the original reason for the meeting is because—I had forgotten this—there was some incident where Alvaro Luna, if I’m right about his name, or somebody, I think it was Alvaro, had said something publicly about the case, and the attorney general’s office had excoriated me even though I’d done nothing. I hadn’t said anything, hadn’t tried to argue the case in the press, that wasn’t my style. And I wrote a letter to General Morales and said I really was troubled about being criticized publicly for conduct that was not my fault, and all I’d ask is that he ask the people who work for him to check with me next time before they go public with criticism to make sure I really was responsible.   
  •  He called—and actually I’d been involved in conducting a number of fundraisers for Morales when he was running so I knew Dan reasonably well politically. I mean we hadn’t socialized, but I’d helped several other people raise money for him when he was running for attorney general. As you know he later disappointed a lot of us by committing crimes and being convicted and spending serious time in penitentiary, but at the time he was sort of the golden boy of Texas politics, everybody thought he had a great future, and I helped put on a few lunches here, they were not massive fundraisers but in any event he knew that I’d been a supporter. And so I think that made him willing to at least talk to me, and he knew I had never lied to him before. So we had the meeting, I told him about my complaint about being criticized publicly, he said he wouldn’t, he’d make sure it wouldn’t happen again; and I told him that I wondered if he would be willing to make a deal with me, this sort of constant setting execution dates, the anxiety that goes into that, last-minute scurrying around and all which seemed to create this series of artificial deadlines. It never seemed to me to be healthy.  

    And he said, “Well, we usually do it because we need it in order to get the defense attorneys to act, because they’re interested in keeping their clients alive as long as they can. If there’s no execution date, they’ll wait as long as possible, they’ll go years without filing anything.”  

    I said, “Look, I’ll make you a deal. I’ll meet whatever deadlines you want that are reasonable, if you’ll agree not to set an execution date until the case is over.”  

    He said, “Deal.” And that made the case far easier to deal with. So we didn’t have another execution date after the one that I’ve just described. 
  •  At some point, and I don’t recall now when, I received files from the consulate, or materials from the consulate, that included newspaper articles describing something I had not realized when I took the case, which was that at some point, and I can’t recall if this incident occurred before I got into the case, or if it was during the course of the case in connection with this, with Woody Densen throwing us out of court—Woody Densen was the judge I was telling you about who denied us the continuance when Kari Sckerl asked for it.   
  •  At some point I discovered that—the case I knew had been pretty high profile in Mexico. The Mexican government had told me that of all the prisoners on Death Row from Mexico in Texas and really around the country, this was the one with the strongest proof of innocence by far. And the early press coverage in Mexico had been far worse than the facts. The facts were bad enough but the early press coverage had made it sound like the case involved Star Chamber proceedings without the public being present, just a week or so after the murder, with Ricardo not represented by counsel—I mean just complete fabrications. I don’t know where they came from.   
  •  But understandably people in Mexico got very angry about that, and that, along with the sort of periodic incidents where Ricardo seemed to be near execution—he’d had one other execution date where it got stayed at the last minute—but all the early press built up a very big following around the country, around Mexico, in the United States, and in a number of places around the world, particularly among anti-death penalty advocates but even beyond that, of people actively protesting Ricardo’s—insisting on Ricardo’s innocence and protesting his possible execution. And there were groups in Europe that had ‘Free Aldape’ t-shirts made, demonstrations, when it looked like he was going to be executed in—a year, I don’t know, maybe a year or so before I got involved in the case. There were massive demonstrations at the Brownsville and Matamoros Bridge, shut down the bridge. And at some point, and it may have been in connection with the hearing where we didn’t get the continuance, there were press reports along the border, in Corpus, Brownsville, McAllen, all the way up the border, interviewing jailers in a jail in Reynosa, I believe, saying that some of the Mexican prisoners in this jail had threatened that if Ricardo was executed, they were going to kill some U.S. college kids from San Antonio that had been arrested because of possession of some prescription, some illegal prescription drugs, vicodin or something, and were in the jail at the same time, and the way they, and as they said in the newspapers, if Ricardo was executed they were going to “kill the gringos.”  

    Well that was the first time I’d realized that there was some serious threat of bloodshed in connection with this case; it scared me, I had no experience with this whatsoever; and while I wasn’t sure what to do, I decided the only thing within my power was to constantly talk to the Spanish-speaking press, especially in Mexico but also in the United States, and assure them that this case was a long way from over, that there was some hope, that we had very strong facts, that -  
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Title:Interview with Scott Atlas
Abstract:Scott J. Atlas is an attorney in Houston, and graduated from the University of Texas Law School in 1975. He was working as a commercial litigation attorney in Houston when he started taking on pro bono cases, most prominently the capital murder case of Ricardo Aldape Guerra (1982 - 1997), which is the focus of this interview. In Tape 1, Atlas offers a brief overview of his educational background; and then describes his year clerking for Thomas Gee, a federal judge on the US Court of Appeals on the Fifth Circuit; his first job in the commercial litigation section of the law firm Vinson & Elkins; his introduction to pro bono work; his first pro bono case in 1977, which he eventually argued before the Supreme Court; and his involvement in the appeals process for Ricardo Aldape Guerra, at the request of the Mexican government. In Tape 2, Atlas elaborates on the events in the Aldape Guerra case, and describes his interactions with the Spanish-language press in the United States and Mexico; the events during the first federal hearing in 1993, which ended with the ordering of a new trial; the events of the second evidentiary hearing in 1995; and the dropping of all charges by the DA's office in Houston soon after. In Tape 2, Atlas also discusses the details of Aldape Guerra's release from death row; post-release events; and his impressions of Aldape Guerra. In Tape 3, Atlas speculates on the reasons behind the police and prosecutor's zeal to convict Aldape Guerra; shares the lessons he's learned from investigating the case; and offers some final thoughts on the death penalty in Texas. This interview took place on January 12, 2011 in an office in Houston, Harris County, Texas.
Sequence:1 of 3
  • Scott AtlasRole: Narrator
  • Texas After Violence ProjectRole: Collaborator
  • Gabriel SolisRole: Interviewer
  • Kimberly Ambrosini-BaconRole: Videographer
  • Chloe EdwardsRole: Transcriber
  • Maurice ChammahRole: Proofreader
  • Rebecca LorinsRole: Proofreader
  • Rebecca LorinsRole: Writer of accompanying material
Publishers:Texas After Violence Project
University of Texas Libraries
Date Created:2011/01/12
Geographic Focus:North America--United States--Texas
Geographic Base:North America--United States--Texas--Houston
Type of Resource:Moving image
    This electronic resource is made available by the University of Texas Libraries solely for the purposes of research, teaching and private study. All intellectual property rights are retained by the legal copyright holders. The University of Texas does not hold the copyright to the content of this file. Formal permission to reuse or republish this content must be obtained from the copyright holder.

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