Interview with Mr. Scott Atlas

Note: Gabriel Solis, a former Texas After Violence Project staff member, interviewed Mr. Atlas several months after his employment with the project ended, as part of Solis' research for his MA thesis at the University of Texas at Austin. Kimberly Ambrosini-Bacon, at the time a Texas After Violence Project employee, accompanied Solis to Houston and videotaped the Atlas interview as a favor to Mr. Solis. Solis and Bacon did not interview Mr. Atlas on behalf the project, but Mr. Atlas later donated the interview to the Texas After Violence Project and consented to its web publication. -- vr, 18 July 2011

Date: January 12, 2011

Place: Houston, Texas

Equipment: Sony HD DV camcorder

Recorded on: Sony mini-DV cassettes

Interviewer: Gabriel Solis

Videographer: Kimberly Ambrosini-Bacon

Transcription: Chloe Edwards

Reviewed & edited: Maurice Chammah, April 29, 2011

[Tape 1 Begins]

GABRIEL SOLIS: You’re going to consent to be interviewed by me for my master’s thesis on Ricardo Aldape Guerra. And there’s a form, if you just want to, it’s just a few quick things—

MR. SCOTT ATLAS: Yeah, we lawyers have to read everything.

SOLIS: Yeah, please, please. And this is based off of, real quickly, the I.R.B. standards set forth by universities for research guidelines.

MR. SCOTT ATLAS: Now this doesn’t say—let’s see, ‘consent to be interviewed for thesis’—this doesn’t say anything anywhere about ‘will be used solely for the purpose of the thesis.’

SOLIS: Yeah, I don’t think I—Like I said, I took this straight from another form that we use and just put this at the top; we can—

MR. SCOTT ATLAS: We can just hand-edit it. I mean I may ultimately decide to let you use it for any purpose you want, but I’d like to wait until it’s over before I make that decision. God knows I’ve been interviewed enough on T.V. that it’s probably, for this case anyway, it’s probably academic, I can’t imagine there’s anything I haven’t already talked about, but—all right. How’s that?

SOLIS: Yeah. That’s great.

MR. SCOTT ATLAS: Okay? The date is twelve eleven. And I’m confident I’ll have no trouble agreeing if you ultimately convert, and end up using this for a P.H.D. thesis [inaudible]

AMBROSINI-BACON: Is that where you sign on the top there?

SOLIS: Oh no, that’s right, I’ll sign here, for the interviewer part.

MR. SCOTT ATLAS: Right. This is at U.T.

SOLIS: [inaudible]

AMBROSINI-BACON [inaudible]

MR. SCOTT ATLAS: Location of the interview—do you want the address or the city or--?

SOLIS: City is fine.

MR. SCOTT ATLAS: Date of birth of the person to be interviewed? Mother’s name?

SOLIS: This is —

MR. SCOTT ATLAS: What is all that?

SOLIS: This is, I took this directly from — it’s the form that we use at the organization I was telling you about, which is created by Virginia who herself is an attorney and I think part of the

MR. SCOTT ATLAS: Then what’s the theory behind asking for somebody’s birthday?

SOLIS: I know Virginia has her—

AMBROSINI-BACON: It’s to distinguish you from any other Scott Atlases in the world who...

MR. SCOTT ATLAS: And my mother’s name?

SOLIS: You don’t have to put that if you—

MR. SCOTT ATLAS: Yeah, I think I’d rather not.

AMBROSINI-BACON: We’ve gone through a lot of different drafts of these forms trying to find the one that works best and this is the latest manifestation.

MR. SCOTT ATLAS: Well, what you have to distinguish me is the videotape. […] And I’d like a copy of that. I can make it before you leave. Is this soda in the way of—?

AMBROSINI-BACON: Oh no, it’s fine.

MR. SCOTT ATLAS: This is my coffee [substitute] since I’m allergic to coffee.

SOLIS: Really?

MR. SCOTT ATLAS: Yeah, not caffeine but coffee, it’s weird. Thirty years ago, actually it was one of the best things that ever happened to me. But I have my vices as you see.

SOLIS: Well—and again, I sent you an email yesterday talking about the Texas After Violence Project; you can decide how you feel about—

MR. SCOTT ATLAS: Yeah, I’ve not had a chance to look them up, I don’t know anything about them. It’s not a name I’ve heard. The name sounds like, and the way you described it to me sounds like a perfectly worthwhile organization.

SOLIS: It’s a really interesting project, and like I said, I’ve worked on and off for the project for almost three years now. Kim is currently the associate director of the project and it’s a unique project and I gave you the link and so whenever—I know you’re very busy but whenever you get a chance, check it out; and after we—after you see the interview, you can—basically what that would do is that would allow us to transcribe the interview, and then you would be able to see the transcription of the interview and make any changes you wanted to it at all.

MR. SCOTT ATLAS: Okay.

SOLIS: And take anything out, so what we would basically do is indicate anything in the transcript that something had been omitted and we would take it out of the actual video footage itself. And you can make all those decisions before you donate to the Texas After Violence Project, and certainly before it’s made part of the Human Rights Documentation Initiative.

MR. SCOTT ATLAS: Now would they have—would the collection include the videotape or just the transcript or both?

SOLIS: Both. It would include both.

MR. SCOTT ATLAS: Okay.

SOLIS: And it’s actually pretty neat, this initiative, it has a media software program where users can log on, watch your video with the transcript streaming alongside the video, a map of the location, of where the interview took place, and, you know, you can click on, if you say ‘Ricardo Aldape Guerra,’ you click it and it will go to every point in the film where you say that, and the transcript; it’s a really neat, it’s a new kind of media, so we’re happy to be part of that initiative.

MR. SCOTT ATLAS: And what is the, is the collection available for historians, for the public--?

SOLIS: Public. That’s another thing that makes it unique, is that it’s not locked away for people with proper credentials to go in and do research. It’s for anybody who wants to get online and learn about your work or Ricardo Aldape Guerra or about the death penalty, or—

MR. SCOTT ATLAS: Well, without having researched the group I’m favorably inclined to do it because I’ve got, my view is the more the public knows about what happened in this case, and other similar cases to the extent that there’s similarities among death penalty cases, the better.

SOLIS: Yes. Well, good, so we can talk about that later. 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.

MR. 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.

MR. SCOTT 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 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 and Elkins in November of 1976 in their commercial litigation section—the name’s 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, 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 and 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 and 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 seventy-six, this was late winter, early spring of seventy seven. 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 […]

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 circuit reheard the case. Then the Supreme Court agreed to hear the case, and I argued before them 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’d 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, and 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. […] 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 was, and I think I was arguing for something less, I think was arguing for fifteen; 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.

MR. SCOTT 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—

MR. SCOTT ATLAS: All I knew at the time was I got a phone call from Ricardo Ampudia, who was the Consul General from Mexico for 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, “Murder of 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 [spelling?] who was the legal representative came to my office at Vinson and Elkins, and we met, and they painted a pretty disturbing picture of someone who they believed was innocent but was 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 there 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 ninety two, 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, the police reports, the 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,

MR. SCOTT 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.

MR. SCOTT 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.

MR. SCOTT 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 accurately summarized 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 something you’re not 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 for punishment, but it has nothing to do with whether someone 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 it.

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 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 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—

MR. SCOTT ATLAS: I don’t remember who 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?

MR. SCOTT 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 he’d need 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 and Elkins who I signed 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, 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 read 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 of the records 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 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, 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, 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 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.

MR. SCOTT 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 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 eighty two; 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. […]

So, 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 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?

MR. SCOTT 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—

MR. SCOTT 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.

MR. SCOTT 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

[Tape 1 Ends]
[Tape 2 Begins]

SOLIS: You felt it necessary to speak to the Spanish-language media about the case.

MR. SCOTT ATLAS: So—long after the criticism I’d gotten from General Morales’ assistant about doing something in the press, and I can’t remember what it was, it wasn’t just talking to the press, but it was saying something. In any event, I started becoming more proactive in dealing with the press, especially the press in Mexico and the Spanish-language press here. I’d talk to the press if people had questions. When I’d go down to Monterrey I would have a press conference and answer questions and would constantly try to provide people with some hope, or at least try to keep them from going into despair. I speak—I grew up on the border and I speak conversant, I lived in Mexico City for a summer many years ago, so I’m not fluent any more but I’m at least conversant, and I was able to answer questions in Spanish. Every once in a while I would misunderstand the question, and you could tell from the looks on the reporters’ faces that I’d completely blown it, but they were very appreciative of the fact that we were doing this case for free and that we were trying to help Ricardo, and I think appreciative of the fact that I was trying to communicate in Spanish, and I’ve often remarked that what was so amazing about the press down there was that the stories in the newspaper would invariably clean up my grammar, and often have me using words I didn’t even know, and if you didn’t know me, you’d think I was really quite articulate.

But that had an unexpected benefit, being on the press, particularly on the Spanish-speaking T.V., mostly on T.V. here and in Mexico, but here in particular. We had a number of witnesses call the office and tell us that they had seen or heard something that night [the night of the murder], they had information. And in several instances they were people who were undocumented and they were calling a lawyer in a big downtown law firm, which if you think about it is not your typical conduct. And I remember asking them what it was that convinced them to overcome their reluctance to call a complete stranger at a big law firm in one of these big skyscrapers in downtown Houston. And invariably the answer was some form or another of saying that I didn’t sound like a lawyer, which reminded me that I’d learned my Spanish mostly as a fourteen-year-old and that it was far less legalese—I’m not sure I’m capable of legalese in Spanish, but it’s a useful lesson for all of us, I think.

At any event, so we had this hearing in federal court, and we brought all of our witnesses, the nine or ten people from the neighborhood who we’d been able to find who essentially told the story of Ricardo being at the front of the car and Carrasco circling around and being in a position where the next thing they saw there was lightning coming out of his hand, pointing it at the police officer’s head, and about the conduct of the police and prosecutors, ranging from people saying they were told they had to sign an affidavit that they either didn’t understand because they didn’t speak English and the affidavit was only in English, or they thought was wrong but did so because of threats to do something to them or other members of their family, to descriptions of conversations with the prosecutors the weekend or two before trial being shown pictures, of being told, “You’ve already signed an affidavit that says this. If you change your story now you’re going to be in trouble because you’re sworn to what was in the affidavit, and here’s a picture of Ricardo, or here’s a picture of Carrasco whose the dead man, and here’s the picture of the other guy and that’s the one you’re saying is the shooter,” reinforcing what was said in their affidavits. And they actually created these wax mannequins to look like the two men wearing the bloodstained shirt that they’d gotten from Carrasco that night, so it was easy to tell which one had been shot, and the other one was Ricardo. They looked very different, it was not hard to tell them apart, certainly in the light, in the dark obviously everything’s more difficult.

We started—our very first witness was a fellow named Floyd McDonald, who I put on as the first witness on purpose, because by this time Tom Gee was involved in the case, the judge for whom I had worked many years before. Thomas Gibbs Gee was from a very prominent East Texas family, was a lawyer for the Republican Party in some of the early redistricting cases, and was appointed to the bench by President Nixon, and was mentioned often as a possible Supreme Court appointment. He was ultimately never picked but he was a brilliant jurist who attended the UT law school, was number one in his class, [editor-in-chief] of the Texas Law Review; brilliant man and a wonderful judge and a decent human being who became one of my great friends. I was in his third class of clerks. He’d been on the bench two years when I started working for him.

And he had left the bench, he’d been appointed, what, in seventy three or so, left the bench some time in the early nineties and had gone to work at one of the downtown law firms as the head of their appellate section, Baker Botts, which is one of the other—there are three firms that were bigger than any other in Houston at the time: Vinson Elkins where I worked, Baker Botts, and Fulbright and Jaworski And I saw Tom at a reception somewhere, and he’d heard about the case and wanted to know a little more about it. And I told him something about it at the party, and he said he was interested enough he’d like to read my brief. So I sent him the brief. And a few days later he called and said, “You’ve convinced me this guy’s innocent, I’d like to work on the case.”

And this is a guy who had affirmed more death penalties, as many death penalties as anybody, not a bleeding heart by a long shot, because he was a very conservative, […] but did not let his ideology prevent him from deciding cases the way he thought the law required, and certainly didn’t—He told, he gave me some of the best advice on the case. He said, “If you can convince the judges that your client is innocent, they will find a way to help you.”

And so I decided--it wasn’t a hard call-- that our first witness ought to be Floyd McDonald. Floyd was a consultant, but he had originally founded the criminal evidence laboratory, the police lab here in Houston, and ran it for thirty years, and then had done the same in Pasadena outside of Houston, and run it for a half-dozen years before he retired, and was doing consulting for both prosecutors and defense lawyers in criminal cases. Well, we showed Floyd all the evidence that showed where people said Ricardo was standing, and where all the police forensics demonstrated, and his—it’s essentially. He drew a picture for them that where, when I finally got to the end, I mean he showed Ricardo at the front of the car, to the south, showed the gun had to come from east to west and so on. And so when I got to the last question, you knew the answer just from the picture, which is, if Ricardo is standing at the front of the car, what’s the likelihood that he could have been the shooter? And the answer was zero. There was no chance. And that I think had a huge impact on the judge. Now, I couldn’t read his mind, but it certainly had an impact on us, and it seemed to us that it had an impact on the judge, It seemed to have a visible impact, because you start your case with a very respected witness whose cross-examination by the state got nowhere, and his testimony is that the physical evidence shows that it’s impossible for him [Ricardo] to be the shooter. And we ultimately had testimony from one of the prosecutors, one of the former prosecutors from 1982 who is now in private practice, that they had no evidence that the non-shooter had ever done anything illegal, so the critical question was who pulled the trigger. And the one who pulled the trigger was a poster child for capital punishment, at least for being convicted of a capital crime. And the other one, maybe there was a crime of possessing a gun, because the other guy, the other person in the car had a gun at least, had a possession, but that was it.

And so it was all—that was by far the strongest way to start our case. And we then put on, I don’t recall the order, but we then put on eight or nine witnesses that testified as I described before, who were witnesses that night, who said they told the police what they saw, was inconsistent with Ricardo being the shooter, was consistent with Carrasco, almost inevitable that it was Carrasco, and yet they were basically forced to sign affidavits that they disagreed with or didn’t understand and ultimately gave testimony that some of them told me were flat lies. And even being told that it was perjury, they didn’t back off. And they were cross-examined vigorously, and not one of them backed off on what they said or said anything that was materially inconsistent, I don’t remember any inconsistencies. But sort of, inconsistencies are sort of the nature of the beast when you’re trying to remember something from ten years before, but there was nothing material that they said that undercut their testimony.

I don’t recall who else we put on as witnesses—oh yes. The—by the end of that hearing, there were really only three witnesses that still maintained Ricardo was the shooter. One was the ten-year-old son, I guess he’d been nine at the time, of the second murder victim. If you recall, immediately after Carrasco shot and killed Officer Harris, he turned away to run down the street, and a car happened to pull up at the wrong time, being drive by a man named Jose Armijo with his nine-year-old son in the front passenger seat. And Carrasco apparently just fired, saw the car, panicked, fired into the windshield, hit Armijo in the head. He died about a week later or ten days later or something like that. And he had apparently pushed his son down below the dashboard; it was hard to tell how much he saw. But the way the evidence seemed to go was, Carrasco was running down, the car’s facing me, Carrasco’s running down the left side of the car; Ricardo after the shooting’s running down the right side of the car because he’s scared to death after seeing the shooting that he didn’t expect. And so little Jose Armijo was one of those witnesses, and this was now ten years later of course, so he’s now nineteen; he ultimately did not show up to testify. Second was a woman named Hilma Galvan. Hilma was in her forties or early forties at the time of the original trial, and I ultimately became convinced that she was more responsible for Ricardo being convicted than anybody. She worked in a convenience store, she had seen Ricardo come in, knew he hung around with some other people who she called mojados , wetbacks. She knew he was undocumented or at least believed he was, didn’t like undocumenteds, and people say that she often said they just come here to steal our jobs and commit crimes. And she, according to all, to many of the other witnesses, spent the evening trying to encourage everybody to identify Ricardo as the shooter, even though several people said that she wasn’t even outside at the time of the shooting.

I was never absolutely certain about that, because just because people didn’t see her didn’t mean she wasn’t there. But, she spent most of the evening with little Jose. And several people said that Jose, early on, he was obviously in shock from seeing his father shot. His dad was taken in the ambulance to the hospital. And he was down at the police station, without his mother. Having seen his father shot, he was in complete shock. Several people said that they heard him say several times early in the evening that he hadn’t seen what happened, he had no idea who did the shooting, because he’d been pushed [below] the dashboard and it was all happening too fast. By the end of the evening, with Ms. Galvan, supposedly according to witnesses saying, “That’s the guy who shot your father”—if you say it enough times—anyway, by the end of the evening he was apparently telling the police that Ricardo was the shooter.

We put on as a witness a woman who was the, who at the time-- and I think still--- is one of the country’s foremost experts on false memory. False memory is essentially that, if you think about it, all of us have memories of things that happened when we were children. But we don’t remember anymore if it’s what we actually saw and remember, or people telling us what happened, because if it happened when you were three or four or six, eventually, it’s difficult to distinguish between real memory and just repeated stories that become part of your memory. And apparently there’s a very large body of scientific evidence that how strongly you believe that you saw something is not, is not related at all to whether it’s accurate; it may be, it may not. And in particular if you’re young and you’ve just suffered a trauma, it’s very easy for somebody to plant a false memory in your mind; and especially if it’s an authority figure.

And so I hired this woman from the University of Washington whose name was Elizabeth Loftus, I don’t know if she’s still there but I’ve seen her name in the paper over the years. She’d written one of the early books on false memory. She flew in, gave me a discounted rate because obviously we were trying to try this case as inexpensively as we could, but we weren’t going to let cost get in the way. And she came down and testified how easy it would be under the circumstances we hypothesized, which might have been true based on the testimony we heard, that Jose Armijo would believe, honestly believe in his mind, and is convinced and could actually visualize in his mind seeing Ricardo shoot his father, even if it wasn’t true. And I could look at the records and tell you who else we put on, I just don’t recall.

Then the state put on several—oh we, several police officers—but not very many. One of whom was head of the Chicano Squad. When there’s a cop killing, they pull out all the stops, understandably. The place was crawling with police trying to find evidence. And they were angry and upset, perfectly understandable. They had something called the Chicano Squad. And I don’t recall the name of the fellow but I actually had coffee with him a month or so before the trial. I was trying to understand what they’d seen and what their thinking was. And what he essentially told me, and ultimately repeated this on the stand although he watered it down a little bit on the stand, that the police didn’t understand what the prosecutors did, that the non-shooter had nothing to do with it, and their view, he said, they thought the two people were equally culpable, and that it didn’t matter which one [that had shot the police officer]. Now he watered that down for the trial, it wasn’t quite as strong, but it was still strong enough for us to argue, convincingly I thought, that it was understandable why the police were sparing no effort to try to convict Ricardo, because they honestly believed that whether he was the shooter or not, he was a bad guy and deserved the death penalty.

They also put on—I don’t remember if they called or we called the two former prosecutors. Probably they did, but I don’t remember. And what I remember very vividly was my cross-examination of one of the two prosecutors, the one who had been, I believe was most frequently showing photographs of the two men to the witnesses, saying this is the one who shot the cop, I mean this is the one who died that night, this is the one who shot the cop.

But he was the one had most often said to members of the jury panel during jury selection, you know there’s one person at a time, who had said repeatedly, although not with every one--it was curious, they hadn’t done it with everyone they questioned. But they’d done it with quite a few and he’d done it more than the other guy, than the other prosecutor--that they were going to prove that Ricardo was an illegal alien and if they convicted him this was a factor they could consider in deciding what punishment was appropriate. Well I asked him if he said that during jury selection, and he said he did not recall. So I pulled out the transcripts and showed him three or four occasions where he’d done that and he said, “Okay, I guess I did; now I remember,” he said.

And I said, “Well let me ask you a question. I’m not a criminal lawyer so I’m inexperienced with these things, maybe it’s something I don’t understand. What is it about crossing the border without proper documentation that has anything to do with whether somebody deserves to live or die?” You don’t care what the answer to that question is, you’re just asking it so that it’s obvious to the judge how outrageous the comment is. Well his answer essentially was—he gave, he gave some answer, I forget what it was, and I said, “Let me ask you again.”

And he said, “I’ve just answered the question.”

And I said, “With all due respect, I don’t think you have.”

And he said, “Maybe you and I need to go out in the hallway and settle our differences outside.”

I’m just paraphrasing now, but that’s essentially what he said, which both the judge and I interpreted as a pretty clear suggestion that we go settle it with a fistfight in the hallway. I had to turn my back because I was delighted with the answer, and I had to literally bite my tongue to keep from smiling. I thought the judge was going to jump out of his chair.

He all but yelled at this guy and he said, “Another comment like that—“ I don’t remember what his words were, but he was very stern in telling him that was an inappropriate comment. I think his first answer—I just don’t recall what the first answer was. It may have had something to do—early on, the D.A. or the A.G.—the proof that they had used, you know in a death penalty case, in order to; once you’ve convicted someone of a crime that meets the criteria for a capital crime, there’s certain crimes, including killing a police officer who’s acting in the line of duty—then the principal thing you have to prove to qualify them for the death penalty, is you have to prove that they pose a future danger, it’s called the future dangerousness question. And typically they try to show prior bad acts, of violence or potential violence.

Their proof was proof that Ricardo had supposedly participated in a gun, a robbery in a gun store, may—I think with Carrasco. Their proof about Ricardo was limited to a fingerprint on a sack, one or two sacks that was used, I guess that came, that housed a gun, when they picked up the gun it was in some sort of a sack or something. There were some real problems with that proof, I don’t remember what it was, it’s been too long. And I think his answer when I—and so they used that to try to prove future danger. And I think we put on some evidence to show that that proof was flawed but I don’t remember.

In any event, I think his original answer to my question about why being an undocumented had anything to do with life or death, he threw something out about how if you’re going to try to foment revolution by stealing machine guns, or something—it was a non-responsive answer. But I think it was an allusion to the gun store robbery. And I think I, I think I said something about “We’ll deal with that when the time comes because there’s serious problems with that proof, but let me ask you the question again.”

He said, “I’ve just answered.”

And then the answer was what it was. It was one of my all-time favorite cross-examinations because his answer was so outrageous that I think it reinforced—in my view, in any event, it reinforced our position that they would say and do anything in order to get Ricardo convicted, it didn’t matter how accurate or how relevant it was.

Anyway, several other things happened during the hearing that were significant, and I have no idea how much of this is relevant to what you’re doing.

SOLIS: It’s—

MR. SCOTT ATLAS: You can stop me if you want.

SOLIS: No, please.

MR. SCOTT ATLAS: Ricardo arrived at—when someone is on Death Row, they basically are jailed in Huntsville, or in a prison that’s near Huntsville. I should say I’m telling you a lot more than I knew at the time. I learned a lot on this case. And when they have a hearing in federal or state court in Houston or any other city, they bring them the morning of the first day of the hearing. They drive ’em to the hearing assuming it’s within driving distance. And that night and every night after that they keep them in the county jail in that city, and then when they’re finished they go back to Huntsville. So he arrives that morning. And he’s wearing clothes that they’ve provided him. The shoes are a size too small. The jacket is a size too small. I don’t remember about the pants. But he is just miserable. So I called the house and had somebody bring a pair of shoes?maybe a little too big but that was a lot better than being too small?and a jacket, so he changed his clothes.

He comes back the next morning, and he tells me that the night before, at the county jail because he doesn’t check in until that evening, he’s not there that morning, they drove straight to the courthouse. When he checked in, they put him in a cell that he described as having no bed, no—I don’t think there was a toilet, and he didn’t get any dinner. And he said in the middle of the night some cop came and beat him, and he shows me bruises on his back. Well, Alvaro and his group is in the courtroom, and my, what ran through my mind is, “If I talk about this in open court, gosh knows what Alvaro will do.”

So we went, I asked the judge to go back into his chambers with opposing counsel, with the A.G. people, and I tell him what my client has told me. He [the judge] gets the sheriff, who was Johnny Klevenhagen at the time, on the phone, on speakerphone, and tells him what our client has said. Johnny, who I knew, put us on hold, came back a few minutes later, and said he was able to confirm that because of what he called a bureaucratic snafu, they had left him [Ricarco] in a holding cell that night. He didn’t get any dinner, and he didn’t have a bed, and like I said I don’t remember about the toilet. He said he could not, there was no way he could confirm, nobody was going to admit having beat him up, so we would never know one way or the other if that was true. But it confirmed enough of Ricardo’s story that Judge Hoyt essentially told Johnny that Ricardo was in his charge, and if anything like that happened again, Johnny was going to find out exactly how friendly his own jail was. That’s paraphrased, but it was pretty close. Johnny said, “I understand. This will not happen again,” and it didn’t.

At some point, his parents—Ricardo’s parents were in the audience at the courtroom. And my wife overheard the couple they were staying with, because his parents spoke no English, and my wife doesn’t speak any Spanish, but she overheard the couple that Ricardo’s parents were staying with, say how unfortunate it was that they had never had a chance to embrace their child since he’d been put in jail in 1982. She told me about it, and I approached the judge with the other side and asked if it was possible to arrange a contact visit because literally, they, they, when you’re on Death Row or when you’re accused of a capital crime, you can’t have contact visits, and you can’t even touch hands because there’s wire mesh between you or glass or whatever.

The judge tried to persuade, asked the jailers if they would arrange a visit back at the jail, and they said, “Judge that’s our jurisdiction and the answer’s no, we’re just not set up for that.”

So he said, “Okay, we’re going to have a contact visit here in court this afternoon, after court’s over.”

So at the end of the day—I guess both parents, I remember his mother, I think his father, too, but certainly his mother, came up to the witness table where we were sitting, and for about fifteen minutes got to visit with Ricardo, unimpeded, I mean he had no handcuffs on. So they were able to hug, cry, and— I can’t tell the story without getting a little emotional about it. Anyway, it was about as nice a thing as I’ve ever seen a judge do. And I remember walking out of the courtroom after it was over, because the courtroom had remained pretty full because word had spread that this was going to happen, and after it was over, one of the lawyers— I think it was Michael Mechetti— on our way out, said, “You know, this case reminds me of why I wanted to be a lawyer.”

Anyway. So, we had the hearing, and it could not have gone any better. We—having Tom Gee there made a huge difference. He argued many of our, whatever disagreements about evidence we had with the other side. He was held in such respect by everybody, including with Judge Hoyt, that we won most of the arguments. We were probably right; but he helped us with strategy. I don’t recall if he cross-examined any witnesses. I feel like he did, but I don’t remember it being in the record. Stan cross-examined the police, and one of the two D.A.’s and I crossed the other former D.A. Hearing ended and we felt like it could not have gone any better. This was, as I said, November ninety three. [The] judge came out with his ruling—well, we had to file a lengthy proposed findings of facts and rulings of law […] And so we went up to New York, not long after this November hearing, still working on the findings of fact which were due the thirty-first of December or the third of January, and I remember sitting on the steps of the Museum of Natural History with the kids and my wife inside, and me sitting on the steps sort of editing the pleadings.

I got ’em filed, and I don’t remember the date of the judge’s ruling, because he issued two rulings. He issued a set of findings or issued an opinion, and then we asked that he modify one or two. There were some minor factual errors, and so he issued a new one in ninety-five. I think the first ruling was sometime in ninety-four, maybe November. Tom Gee had died just a few weeks before, which really saddened me because he never knew. But he issued the ruling; it was an overwhelming victory. He called the police and prosecutors “agents of chaos” who had essentially done everything possible to try to railroad an innocent man, and he talked about all the misconduct and so on. But all he could do, because of the misconduct and so on, was order a new trial. He could not order Ricardo’s release.

Stan and I went to see the District Attorney Johnny Holmes, who was the D.A. at the time, to try to convince him that he should dismiss the charges. He basically deferred to the prosecutor. By this time a new prosecutor had come in, fellow named Casey O’Brien, with whom I never had any particular relationship, good or bad, because he was in late enough in the case that we just didn’t have any personal dealings of significance. He deferred to Casey. Casey said he thought he could, that he had enough evidence to convict, so Johnny said fine.

Then O’Brien asked—so we had to go back to the original trial court for a new trial. By this time Woody Densen had long since lost, and there was a new judge whose name was—I’m drawing a blank. Maybe I’ll remember it. […] I think it was the later judge who also ended up losing his re-election, but at the time he was a Republican state district judge.

So O’Brien goes in and says, “We want to have another evidentiary hearing, because we don’t think we got a fair hearing in Judge Hoyt’s court. We weren’t allowed to bring in all our police witnesses that we wanted.”

Well, I think what had happened is, they had wait—they had listed who they wanted to bring in and then at the last minute wanted to add a whole bunch more people. And there wasn’t enough time for us to respond, or maybe even in the middle of the hearing, so the judge said no, you couldn’t add witnesses to the list that late. It’s fairly routine. And they just said they didn’t think they were treated fairly. So the judge—Werner Voigt, that was his name, Werner Voigt—said, “Okay, we’ll give you a hearing,” and he set the hearing. And then he realized it was going to take an enormous amount of time on his docket to handle this case, and so he decided that he would have a judge appointed specially to hear it. And he, I don’t remember how it came, if it was the administrative judge who chose or he recommended. But in any event, they brought in a retired judge from the Court of Criminal Appeals, a brilliant jurist who taught at the University of Texas law school for a long time, named Frank Maloney, who I vaguely knew but had very great respect for because he was so smart and viewed as a very fair-minded judge. So he conducted the hearing.

And they brought in all the police officers they wanted to have testify. And he agreed we could just put in the testimony from the original hearing. We didn’t have to put on all that evidence all over again. Curiously, virtually every one of those police officers testified to remembering almost verbatim what was in the witness statements. Now I—and they, after the judge told them he didn’t want them getting together to sort of coach each other on their testimony, it turned out they had done that, the judge got pretty mad at ’em.

My suspicion is, and it was understandable but not wise, is that they all went back, they reviewed these affidavits, and the affidavits, they just—they figured that had to have been true so they remembered each witness telling them exactly what they said in the affidavit. What I would have done, and what I believe would have been more credible, and frankly what I believe would have been truthful, is if they had said, “We don’t remember exactly what witnesses told us because this was ten years ago and we see these witnesses by the dozens, daily. But if anybody had told me that they saw X commit a murder, there is no way that I would ever have told them to say that it was Y. That’s just not the way I do things.”

That would have been a lot stronger and more believable. But to come in and say, “I remember ten years ago this witness saying this sentence and that sentence or basically the substance of that,” just didn’t—I don’t think it persuaded the judge.

They brought on—remember I said there was a third witness who still believed that Ricardo was the shooter, was a woman named Patricia—maybe Patricia Diaz? Not sure. And in the original hearing she’d given testimony that I thought, in federal court that I thought was a little confusing, and I didn’t think it was very credible. She testified, as did Hilma Galvan. I had—I’d forgotten, Hilma Galvan had moved from Houston out to California to a little town a couple hours south of San Francisco, had no phone. So I flew out to San Francisco to interview her. And I can’t remember—I think it was before the new trial, not the old one, because I don’t think they found, I don’t think either of us found her the first time, but I, this may be completely wrong.

In any event, I interviewed her, and the story she told me—and I really was very skeptical of what she had to say, because she’d been so anxious to convict Ricardo—the story she told me was different from what she said in her affidavit and different from what she testified. And so I had her sign an affidavit. I prepared one while I was out there. And when I got back home I realized that I needed a video, I should have videotaped it or at least audio-taped it, because I didn’t want her claiming that I’d somehow intimidated her into signing.

So I sent her a cell phone, and, by mail, and called her on the phone, and audio-taped a lengthy conversation where we went through her affidavit sentence by sentence, just to reconfirm that it was all accurate so she could see or at least hear that I wasn’t trying to intimidate anybody. She testified, and I think we just completely destroyed her credibility because she’d say X, and I’d say, I’d say, she testified X and I’d say, “Didn’t you testify to Y in your affidavit? No? Well here it is. Didn’t you say Z in the original trial? No? Well here it is.”

And we did that for a bunch of different things. At the end of that, the judge said something like, “Do you have any real witnesses?” Patricia Diaz was likewise very inconsistent, I remember my older son who was sitting in the courtroom with us, who was—let’s see, this was ninety-five, so he was eleven or twelve, I think he was twelve. I finished with the cross-examination and we then had a recess, and he said, “Dad, I thought she”—he was a smart kid—he said, “Dad, I thought you were this close to completely destroying her!”

And I said, “Ryan, the object here is to convince the judge, not destroy the witness.”

And we—and then Jose Armijo, poor kid, had gone on to be convicted of car, auto theft, and I think was in prison, in penitentiary, Huntsville or somewhere, one of the state penitentiaries. And we thought that he was going to come in and testify, but they didn’t bring him. Officer Harris’ widow, Pam Harris, who had spent the last ten years convinced that Ricardo had killed her husband—I’d been in touch with her a little bit, a very sweet lady, very religious—came down for the hearing, and I’m happy to say that by the end of the hearing, she was telling the press that she was no longer certain that Ricardo was the shooter, which was a huge concession and a wonderful thing for us, to actually have her say publicly.

We finished the hearing, and several months, however much later, I don’t remember the time, how much time elapsed, Judge Maloney issued his opinion. He incorporated verbatim, literally verbatim, all of Judge Hoyt’s opinion, and it then—what I don’t remember is whether he or Werner Voigt were going to try the case, but he ruled, Maloney ruled, and this was key, he granted our request to prevent the now admittedly false testimony from the first trial from being used in the retrial, which was huge.

Either the very next day or within days, the D.A.’s office announced it was dropping all charges. And they said that since they couldn’t use the original testimony, and they weren’t going to be able to find many witnesses, they just couldn’t put on enough of a case.

The—one of the representatives of the Houston Police Union, who I actually knew, and, well actually one of his cohorts and he went on, were interviewed in the press, blaming a fancy-pants pinstriped downtown lawyer, big firm lawyer, for obtaining the release of a cop killer. I called him and offered to appear at the union, at any union meeting of their choosing to answer questions, because I really did not think they had the facts of the case. They hadn’t sat through the trial, all they knew was what they read in the newspaper. He never got back to me. I got at least one and maybe two death threats; I don’t recall if they were in writing or by phone. I didn’t take them too seriously but we did have some people from the U.S. Marshal sort of consult with us to talk about, sort of minor protections just in case. Nothing came of it, I’ve always believed that people who are going to do something like that don’t usually warn you. […] But nothing ever happened. There were some nasty letters to the editor of the newspaper, but it was pretty minor.

So I thought they would just let Ricardo out of jail the next day. I actually, it turned out his parents were still in town, or maybe they’d come back, and they were visiting when this happened and actually went straight over to the jail, county jail here. Ricardo—I feel like—that’s right, since they had, since the, since Judge Hoyt had called for a new trial, he was no longer a convicted cop killer and so they kept him here rather than sending him back up to Huntsville, I think. So I believe he was here when we went to tell him about the D.A. dropping all charges, because he’d seen it on TV and didn’t believe it, understandably. So I thought he would get out quickly, but the prison system refused to release him since he was an undocumented national, and they weren’t going to release somebody who didn’t have papers.

Many—several years before, actually, Ricardo had received a telegram from somebody, Immigration Service, clearly computer generated saying they had reason to believe he was in this country illegally, and they wanted him to show cause why they shouldn’t deport him. And he sent me a note saying, “Tell them if they want to deport me, that’s fine.”

But the way it had to work, and the only way they would do it, is, even though the government of Mexico offered to send a plane up for him, President Salinas had taken a real interest in this case, he was from the outskirts of Monterrey, he had become very, much more active than his predecessors in providing support for Mexican nationals who were in prison in the United States. I’d actually flown up to Dallas once to meet with him and Ann Richards. I’d been very active in Ann’s campaign and she was a good friend, she told me that she was meeting with him and that he had asked about this case. She said she knew me, and he said he’d really like to meet me. So I flew up to Dallas, and we spent quite a bit of time together, with him asking me questions about the case. The governor—he and the governor of the state of Nuevo Leon, which is the state in which Monterrey is located, had actually appointed, or selected, a former foreign minister, the equivalent of our secretary of state, to be my liaison to the Mexican government for anything I wanted, a fellow named Santiago Roel, who was the foreign minister for Diaz Ordaz back in the—I don’t remember, in the seventies, maybe.

Santiago, whenever I needed anything he’d get it. If I needed to find witnesses, he was somehow able to find them. I’d wanted to get proof of whether Ricardo had ever been arrested for anything. He was able to prove, to find within forty-eight hours all the evidence they needed showing that he’d never been convicted of anything and had never been arrested in any jurisdiction in Mexico. I wanted to get information about Carrasco, because I wasn’t convinced that that was his real name. But we did have a fingerprint or two. And they actually ran it through Interpol. As I told some friends, I didn’t think Interpol was real; I thought it was Maxwell Smart’s crime-fighting agency. But it turns out it was real. And it all convinced me that if you ever have a chance to have an entire government at your disposal, you should accept it, because it was very helpful.

So they, Salinas, President Salinas offered to send up a plane to take him back to Mexico. I.N.S., immigration, wouldn’t agree, immigration refused, they insisted on driving him from Houston down to Brownsville, handcuffed the whole way, and then taking, walking him halfway across the bridge and handing him over to the Mexican government. So I flew straight to Monterrey, timed pretty much to meet him, while they sent a plane to Matamoros to pick him up. I got there a little before he did. There were more press there than I have seen in several presidential press conferences. I mean, there were a hundred and fifty people. It was amazing.

His plane lands; all three of the national networks have nothing but an empty airplane tarmac—an airport tarmac without a plane, just showing it, because they’ve interrupted all their daytime programming for this because it’s such a big deal in Mexico. Finally his plane arrives, he comes to the door of the plane, he sees the crowd, [it] scares the heck out of him, he goes back in the plane and I have to go up and talk him out. He comes out. We have a little press conference. And then they provide a bus to take him from the airport to his sister’s house, where police estimate over a thousand people were waiting in the light rain for over an hour for him. They get him into the house.

I’m starting to walk across the street because I’m behind him. And all of a sudden, I feel myself being lifted in the air, which scares me. Turns out it’s people who recognize me because I’ve been talking to the Mexican press so much, far more, they’ve seen more of me than they have of Ricardo. And people start sort of parading me through the streets around the house, shouting, “El abogado,” “The lawyer, the lawyer!” and meaning it in a nice way. And a friend of mine here, when I got back told me—and I did not remember this happening—but he said that one of the Houston T.V. stations, and I think I may have seen this on one of the clips that I gave you,

SOLIS: Oh great.

MR. SCOTT ATLAS: Shoved a microphone in my face while I was sitting on the shoulders of this crowd and said something like, “What do you think of all this?” And my answer was pretty banal. It was, “They don’t treat lawyers like this where I come from.”

So we get inside, and the crowd won’t leave. He has to go up on the roof of his sister’s house and address the crowd. And they’re treating him like a rock star. And if you think about it, poor kid was just in the wrong place at the wrong time. He’s no real hero, but they’re treating him like a hero. And it’s like midnight or one o’clock in the morning now. He literally takes off his t-shirt and throws it into the crowd and whips them into a frenzy.

And after this is when Television Azteca approaches him and asks him to act in a soap opera that they rewrite to tell the story of his case, a telenovela. They pay him not nearly enough money, a couple thousand dollars, which he uses to buy a little car. He spends his weeks in Mexico City filming, drives the eight or ten hours home to Monterrey every weekend, and you know the rest of the story. He finishes filming for the last time, they give him his last paycheck I think, and he’s driving home. And about halfway home he falls asleep in the car apparently, and runs into the back of a truck and dies. I had to go back down there for the funeral. It was an open-casket funeral, and it was really tough.

As you can imagine, the family was devastated: Our team was devastated. We had to have a team meeting, and I had to talk about the fact that at least he got to die a free man in his own country after getting to see his family. And if you’d given him that choice, he would’ve taken it. He’d actually gotten engaged to an Azteca employee who he met while filming, a woman named Tanya. And she and I kept in touch for several years. I’d hear from her every six months or so, though I’ve lost track of her now for many years. I kept in touch with the family for while. I’ve not been in touch with them for a few years. The last time was not long after we got that payment from Valdez to give to them, for the movie rights, and five thousand dollars for them was a lot of money.

SOLIS: Sure.

MR. SCOTT ATLAS: When Valdez came to Houston, I remember—this was ’98 maybe, so my kids were thirteen or fourteen and eleven or twelve—and they’re hearing about this movie. All they cared about was whether they could be played by Tom Cruise; I told them I just wanted them to change my name and they could do whatever they wanted.

I’m trying to think what else I can tell you of that narrative, I guess I should stop and find out what questions you have because I’ve been rambling—

SOLIS: No this is—that’s exactly what I wanted you to do, was to tell that.

MR. SCOTT ATLAS: There are probably lots of other little anecdotes in connection with it.

SOLIS: Sure. I just have a couple quick questions—how are we on—?

AMBROSINI-BACON: We’ve got about ten minutes.

SOLIS: Okay, just a quick question. I wanna know two things, really. After hearing your story, I’m thinking I want to re-ask these things. One, I just simply wanna know what Ricardo was like, from your estimation when y’all met; and secondly, if you care to answer this question, I wanna know why—what your thoughts are on why Harris County prosecutors were so intent on—as you say in one of the case files that I read, opening up your argument, it says, you know, very straightforwardly, “With Carrasco dead, police and prosecutors immediately began to build a case against Guerra, Ricardo Aldape Guerra.” So those are the two things I’d like to know, two very different questions. One is what was Ricardo like when y’all talked, and secondly, just why do you think the prosecutors went through so much trouble to build a case against Guerra and to make sure he got the death penalty.

MR. SCOTT ATLAS: Sure. Okay. Well, the first question’s easier than the second one. Shortly after I took the case I went out to see Ricardo. And I saw him a number of times over the years. It wasn’t as easy when he was in Huntsville since that’s a two-hour drive, and I wasn’t always the one who would go out and see him. But after anything significant, I’d try to go out there. I actually talked to him on the phone—did I talk to him on the phone? I think I did. I’d been involved in another case where we actually won the right to limited phone calls involving—sort of, providing rules for attorney visitation so that the guards couldn’t listen to everything you had to say, that was the main impetus for the case. And I feel like we had occasional calls. But I did see him half a dozen times at the prison and obviously here a lot, he was here for the hearing. And he seemed like a really decent kid. I mean, he was twenty I think when he crossed the border; his family was having financial hard times. Like many people who come to this country from other countries, from south of the border, he was just trying to earn enough money to send back to his family.

Actually when they arrested him, he had a three hundred dollar money order in his pocket that I guess came from work, because he was working in construction or something. I never could find that money order again. I was not happy about it. But he sent money home, like a lot of dutiful kids that come over here. He—somewhere there was evidence that I found, and I think we put in affidavits from former teachers and other people who knew him in Monterrey. They described him as the kind of person who’d drop everything to help an elderly woman cross the street carrying, carrying bags of groceries. He taught soccer to children. I mean, I’m sure he wasn’t perfect, and he had some hard times once he got here because he didn’t have a lot of money and it’s not easy being here without papers. But everything I heard about him and everything I saw in my dealings with him was he was a very good kid. He had no prior problem—no previous run-ins with the law. Everybody I talked to in Monterrey who’d ever known him had nothing but good things to say about him, which is why they were especially shocked when they got word he’d been arrested for killing a police officer, for killing anybody, committing a crime.

When you’re behind bars for fourteen and a half, almost fifteen years, it can make it very difficult you can—people react in lots of different ways. Some people find religion, some people turn into hardened criminals. Ricardo remained pretty stoic about things, and pretty religious; I think he got more—because it took so long, despite how strong the evidence of innocence was. I mean, if you believe his case as all the judges did, I mean when we argued this on the Fifth Circuit, we had a very strong, conservative panel of judges on the Fifth Circuit. And a number of friends told me I was going to be in trouble because several of those judges they didn’t think had ever ruled in favor of somebody who was, was on Death Row. Well, we won that case three to nothing because the facts were so strong. And the judges were intellectually honest about it, as I expected they would be. But I think by the time of his release, he’d realized he’d lost a portion of his life he’d never get back. And once he got back to Mexico, I think probably from prodding from some other people, he came across as a little more bitter than anything I’d seen, resentful that he’d lost so much of his life, that he had lost it because of being ramrodded by misconduct as we saw it. But that doesn’t take away from him being a decent human being. He—and I—when I went back down for his funeral, people told me that while he did have this lingering bitterness, he was still the sweet kid he always had been. So I mean I, I thought he was a terrific kid. I—did I show you—I must have shown you the clock that he made for me. He was incredibly effusive in his thanks to everybody on the team. He would write them letters, send them notes at holidays. He just really appr—not surprisingly, he appreciated all the work that had been done on his behalf. But he was a good kid. In my estimation, he was a really good kid who lived a Kafka-esque nightmare for fifteen years and kept his bearing remarkably well, even if he ended up, towards the end, having, not surprisingly, a bitterness about what had happened. As for the-[second question of why the prosecutors worked so hard to convict Ricardo and get the death penalty].

[Tape 2 Ends]
[Tape 3 Begins]

MR. SCOTT ATLAS: The short answer is nobody really knows. I can’t put myself in their heads. My belief is that when there is a killing of a police officer, that it results in an understandable heightened sensitivity, both among other police officers because they’ve got the most difficult job in the world and they deserve our praise and our thanks and our sympathies because they put their lives on the line every day; and when one of their brothers and sisters are killed—and it happens far too often—they react very strongly. And I think that puts added pressure on the D.A.’s office.

I do not understand whether there was a lack of communication between the D.A.’s office and the police. I truly do not understand that. But it is not surprising that the prosecutors would pull out all stops, in any heinous case but particularly in a cop-killer case. And when you superimpose on that the fact that the suspects, both dead and alive, were undocumented. At a time of particular, you know, we’ve had a number of periods in this country’s history where there’s been particular ferment about immigration issues. We’re having it now. We had it back in those days, too. And I think I talked about that a little bit in the brief because of that study that we did that was actually facilitated by work that’d been done by a sociology professor at the University of Houston. The sum of the nativist sentiment expressed in the newspapers and on TV was pretty horrific. The worst was the quote I saw from Clare Booth Luce, I can’t remember exactly what it was but it was-

SOLIS: It was comparing the undocumented immigrants to roaches in the night.

MR. SCOTT ATLAS: Yeah, that’s it, I think that’s it. That was pretty awful.

SOLIS: Slithering across the border—

MR. SCOTT ATLAS: Yeah, something like that, and the fear that it was going to change our way of life. It’s typical comments that you hear whenever there’s real fear about immigration.

But that is purely speculation on my part. I think the combination of those things makes it something very difficult for the prosecutors, and prosecutors. There are unfortunately too many documented instances of prosecutors in any kind of serious case, some prosecutors in some cases, engaging in misconduct, as part of a sort of an all-encompassing desire to win. And I’m sure sometimes it’s because of a conscious, an honest belief that they have the person who’s guilty, but a sort of flawed moral compass because of a willingness to do whatever it takes to convict them, damn the rules, and damn judicial fairness.

And so my theory is that it’s a combination of immigration hysteria, cop-killer case putting additional pressure from the police, and beyond that just an overwhelming desire to win. I mean there was one—one of the former prosecutors actually had a history of questionable conduct at that. And if I remember correctly, it had gotten him censured in a, in a court opinion. And we provided that to the judge. I didn’t want to say anything about it publicly at the hearing because I didn’t see any point in putting that the newspapers and damaging his reputation any more than it already had been. But the prosecutor I cross-examined about the undocumented alien, about the illegal alien comment had been severely criticized for what appeared to me to be pretty serious misconduct in some other case that had gotten one court of appeals to say unpleasant things about him. And whether that’s just a reflection of a desire to win and he didn’t care how he got there, or something else, I don’t know. That’s the best answer I can give. Anything else I think would be as speculative as that was.

SOLIS: Great. Well, Scott, thank you so much for giving us a couple of hours today, I know you’ve got a lot going on. And I’ve already thanked you many times for the files that you’ve provided me and I will continue to thank you for that.

MR. SCOTT ATLAS: Listen, I’m delighted you’re doing it. I think the lesson you can get from this case and unfortunately too many other death penalty cases justify—I think it’s important to have people study it because the lessons you can learn from this are very useful. And the sort of take I have from it, as you’ll see as you read through the newspaper articles—I pity you because I gave you so darn many, I had no idea they’d kept all those at the time—I really do—I have never been an opponent of the death penalty. But I must say, the way we apply it in this state, and the way we apply certain Congressional legislation that sort of changes the presumptions and makes the process far more difficult after you’ve been convicted, makes it awfully difficult for me to maintain that position because I, I don’t like the way we do it, I think there are not enough procedural safeguards. I’m convinced that most of the people on Death Row are guilty, but a few are innocent. And the problem is we give them such, because historically we provided so little funding for appointed counsel, everybody on Death Row, almost without exception, is somebody who could not afford their own lawyer.

O.J. Simpsons who can afford their own lawyer do not get the death penalty. Sometimes they don’t get convicted, but they almost never get the death penalty, you just don’t find rich people on Death Row; and, although they occasionally are accused of heinous crimes, but they don’t get the death penalty. And we provide so little funding that we end up with lawyers who are either incompetent or inexperienced or both, or at least don’t have enough money to conduct an adequate investigation and put on the case that people need. And death penalty cases are especially complicated and expensive for a whole range of reasons.

And as long as we do that, it means that if people don’t have proper defense in the initial case, you can’t tell from, you can’t distinguish the great majority who are guilty from the few who aren’t. And until we provide adequate funding, or some sort of indigent defense program with professionals who could provide them with decent representation, we’re gonna continue to have that problem.

Now, the great news in Texas is that now that we’ve provided life without parole as an option—and I was involved in that fight for a long time—it has made a dramatic difference in reducing the number of cases where juries give the death penalty. It’s interesting, what’s really driven the drop in death penalty assessments are the option of life without parole. Because when we had parole, when you had life with a chance for parole, juries were always afraid somebody would get out, however remote the prospect. A multiple child killer is not likely to ever have a prosecutor and a judge and governor agree to them being paroled. But even so, the chance caused juries to give the death penalty far more often. That, and the cost of conducting a death penalty case is enormous, and some of these small counties flat can’t afford it. And so more and more, they’re bringing capital cases where they only seek a life sentence. Because when you do that you don’t have to have the voir dire as extensive as it is, one at a time. And it just short-circuits it considerably and makes it a lot cheaper. Anyway, but that’s—those are the lessons I take from all this. People take far more serious sort of moral lessons from it, but I tend to focus mine on the procedural part. Anyway, enough said.

SOLIS: Thanks again.

MR. SCOTT ATLAS: It was a pleasure to meet you.

SOLIS: Appreciate it, yes.

MR. SCOTT ATLAS: I do hope I said that the one condition on helping you as much as I can is I get a copy of the final product.

SOLIS: Yes, absolutely, yes; and like I said, who knows

[Tape 3 ends]