Jun/1 Two dead men walking
By KARISA KING
Herald Staff Writer
#Two death row inmates, each convicted in Cameron County more than a decade
ago, may have entered their final hours.
But even as the state of Texas prepares to send them to their deaths, their
lawyers are still arguing their innocence, filing eleventh-hour appeals,
enlisting whatever help they can find.
If the attorneys fail, David Losada, 32, and Irineo Tristan Montoya, who turns
30 on Tuesday, will be injected with a cocktail of lethal drugs, becoming part
of a record-breaking string of Texas executions.
Losada, convicted in 1985 for his role in the rape and murder of a 15-year-old
girl, is slated for execution Wednesday -- unless the Texas Court of Criminal
Appeals sides with him in a decision expected Monday.
And if Montoya is put to death June 18, he will become the second Mexican
national to be executed in Texas since the 1976 reinstatement of the death
penalty, and the first in more than five years.
McAllen-based attorney Joseph Connors, who has handled Losada's appeals for
the past nine years, fired off a third appeal last week arguing new evidence
in the case has surfaced.
Texas, Conners insisted Friday, is about to put an innocent man to death.
"The question is: does anybody but his mommy and his lawyers care?" Connors
asked.
According to the 76-page document, Losada's original trial attorney, Jose Luis
Pe a, failed to remove himself from the case on a conflict of interest.
Pe a had represented one of Losada's three co-defendants, Rafael Leyva Jr.,
who later became the state's star witness against the other three.
Appeals courts have twice rejected that argument. But this time, Connors
submitted an affidavit, signed by Pe a, stating Leyva confessed in his jail
cell to murdering the girl while Losada and the others watched in stunned
silence.
At Losada's trial, Leyva testified that all four men played an equal part in
repeatedly raping and beating Olga Lydia Perales to death with a pipe after
she accepted a ride home from a party.
She asked to be let go and pleaded for her life, Leyva said. A pathologist
testified that she died from approximately 30 blows to the head. Her body was
found in a brushy area outside San Benito on Christmas Eve 1984. She had also
been stabbed twice in the chest.
In return for his testimony, prosecutors allowed Leyva to plead guilty to a
charge of sexual assault. He received a 20-year sentence and is now free.
In his affidavit, Pe a says Leyva admitted to the killing, telling Pe a he
lost his temper after the girl taunted him because he was too high on drugs
and alcohol to get an erection. Transcripts from Losada's trial show Pe a
asked Leyva only one question on cross-examination -- whether he had known
Perales before the murder.
"I knew that Rafael Leyva was testifying on the witness stand and giving
false testimony but I did not tell ... anyone about that because I thought my
attorney-client relationship with Leyva prohibited me from proving to the jury
that perjury was occurring," Pe a stated in the affidavit.
Pe a has since been disbarred for an unrelated matter. As for the other two
co-defendants, Jesus Romero Jr., who was 19 at the time, was executed in May
1992. Jose F. Cardenas, a juvenile at the time of his original trial and
ineligible for the death penalty, is now serving a life sentence in
Huntsville.
"Before, the courts told me I had no sufficient backup," Connors said of his
earlier appeals. "Now, I have backup, but is it too damn late?"
The pace of executions at Huntsville has picked up since December, when the
Court of Criminal Appeals upheld the constitutionality of a 1995 state law
aimed at speeding up death row appeals. While the law was being challenged,
condemned inmates received an automatic stay of execution.
In 1996, Huntsville saw only three executions. In May, Texas executed eight
convicted murderers, a record for any state since the death penalty's 1976
reinstatement. And with 10 death row inmates on the prison's June calendar,
that record will soon be eclipsed.
"What we're seeing now is basically people that the process would have
normally (executed) last year. It's catching up to us," said Larry
Fitzgerald, a Huntsville-based spokesman for the Texas Department of Criminal
Justice.
Still another issue linked to executions in Texas may emerge in coming months
-- the presence of 13 Mexican nationals on death row in Huntsville. The last
time Texas executed a citizen of Mexico, which has no death penalty, was in
1992.
Montoya, a laborer from Tamaulipas convicted in Brownsville in 1986, when he
was 19, is scheduled to die June 18, and a handful of other Mexican inmates
are nearing the end of their appeals. His case will likely spark public debate
and demonstrations.
A Brownsville jury convicted Montoya for the robbery and murder of John
Kilheffer, who was stabbed at least 22 times. His co-defendant, Juan Fernando
Villavicencio, was acquitted after testifying against him.
According to testimony at the trial, Montoya and Villavicencio were
hitchhiking into town from the Port of Brownsville shrimp basin when Kilheffer
picked them up. Tristan confessed the two had decided to rob him. The attack
took place near Ringgold Park and the body was dumped in a grapefruit grove in
the Southmost area. Montoya said the two took a gold chain with a cross, a
gold ring and $80 from Kilheffer's body.
Montoya's attorneys raised 14 points on appeal. Among them was the claim that
law enforcement officials failed to notify him of his right to help from the
Mexican consulate and the argument that his confession was forced. Montoya's
attorneys also argued he was guilty only of theft because he didn't intend to
rob or kill the victim.
The Texas Court of Criminal Appeals rejected each point in a 30-page unanimous
decision in May 1989, upholding his death sentence.
After subsequent requests for stays were denied, his lawyers filed a petition
in federal court in Brownsville. In September 1992, U.S. District Judge
Filemeon Vela granted a stay. Montoya's lawyer claimed that he needed time to
investigate allegations of misconduct by law enforcement officials. Witnesses
changed their testimony between the two trials. But subsequent appeals have
been turned down.
Bonnie Lee Goldstein, Montoya's lead attorney for the past four years, said
the fight is not over.
"Executing someone when there is any doubt as to whether there is a fair
trial or there is some stone left unturned shouldn't happen," Goldstein said
Friday. "He's got some remedies left, but unfortunately, due to changes in
the law, they're not that easy to win ... The lawyers are working on every
available recourse."
