Jun/1 Two dead men walking - Brownsville Herald: Local News

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Jun/1 Two dead men walking

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Posted: Sunday, June 1, 1997 12:00 am

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."

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