The Austin Chronicle

Naked City

Will Lavernia Ever Go Free?

By Amy Smith, February 28, 2003, News

Carlos Lavernia has many things to be grateful for, but freedom isn't one of them. He spent 16 years in prison until a DNA test in 2000 proved he wasn't the "Barton Creek rapist," and he subsequently won a $400,000 judgment against the state in a wrongful conviction lawsuit. Yet, nearly three years after his widely publicized release from prison, the Cuban refugee remains behind bars, trapped in a web of INS bureaucracy as tight as his Del Valle jail cell.

Lavernia's monetary judgment has enabled him to pay lawyers to try to clear the hurdles that prevent him from getting on with his life. Last week, immigration lawyer Dan Kowalski filed a petition in federal district court to prevent the INS from deporting Lavernia to Cuba. Lavernia's biggest hurdle is a prior conviction of indecency with a child, which makes his fate even more uncertain; Kowalski is trying to win an INS agreement to place Lavernia on parole rather than on a deportation list. Meanwhile, attorney Robert Swafford, who represented Lavernia in the wrongful conviction lawsuit, is trying to clear his client of the indecency conviction. Lavernia doesn't match the description of the perpetrator in that incident, and he wasn't informed of the INS consequences before he agreed to plead guilty on the charge in exchange for probation. "This happens a lot to people like Carlos," Kowalski said. "They cop to stuff they didn't do without knowing what could happen to them."

The INS is particularly tough on "Marielitos" -- Cubans who came to the U.S. in the 1980 boatlift. Kowalski is also trying to determine if Lavernia's name is on a repatriation list, which would indicate whether Cuba wants him returned to the country. Because Lavernia has denounced communism, Kowalski said, he could be killed if forced to return to Cuba.

In that contradictory respect, the Del Valle jail is keeping Lavernia safe for now. Even after 19 years of incarceration, Lavernia is holding up "amazingly well," Kowalski said. "I think it's kind of astonishing, really, considering what he's been through."

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