The StandDown Texas Project

Two Texas Prosecutors Speak Out Against the Death Penalty

Today's Houston Chronicle publishes the OpEd, "Legislature should seriously reconsider the death penalty."  It's by Grant Jones and Sam Millsap.  Jones served as district attorney for Nueces, Kleberg and Kenedy counties; Millsap, served as district attorney for Bexar County from 1982 to 1987.  It's a must-read.

As district attorneys in the 1980s, we believed that the death penalty was the best punishment for certain crimes. We no longer believe that today. We haven't gone soft. We have come face to face with some hard truths. Both of us have been involved in the execution of men who may well have been innocent.

This year, an investigation by a law school revealed that eyewitnesses might have mistaken Carlos DeLuna, who was executed for murder in 1989, for another man, also named Carlos. The two men bore such a strong resemblance that even family members mistook photographs of one man for the other. No one will ever know for sure whether a mistake was made, but cases like DeLuna's raise serious doubts about the wisdom of continuing the death penalty.

Long after Ruben Cantu was put to death in 1993, an investigation by this newspaper persuasively argued that he was wrongfully convicted and executed. Two decades after the trial, the only eyewitness recanted his testimony and explained that he felt pressured by the police to identify Cantu as the shooter. This witness had nothing to gain by changing his position.

As long as human beings are in charge, there will be mistakes. Even people who are hardworking, and acting in good faith, make mistakes. In most criminal cases, the appeals process is there to identify and remedy errors. But the problem with the death penalty is that once it is carried out, there is no way to go back and fix a mistake.

Family members of Cameron Willingham know this fact all too well.

And:

Next month, when the legislators convene for a new session, they should seriously reconsider the death penalty. A sentence of life without parole - that is, without any possibility of release under any circumstances - keeps society safe while eliminating the chance of an irreversible mistake.

The Texas Legislature convenes January 8th.  Earlier legislative session coverage begins at the link.

Also available, more on Ruben Cantu, Carlos DeLuna, and Todd Willingham.  Related posts are in the abolition and OpEd category indexes.

You Can't Fix the Death Penalty

That's the title of an OpEd in today's Los Angeles Times written by Columbia Law prof James Liebman.  It's subtitled, "Carlos DeLuna's execution shows that a faster, cheaper death penalty is a dangerous idea."

Californians will vote this fall on an initiative to abolish the death penalty. Proponents of the measure say it is necessary because capital punishment is too costly. Opponents argue that costs can be cut by streamlining the system.

But whether one is for or against capital punishment, trying to make the process cheaper and quicker is a terrible — and dangerous — idea.

Recently, my coauthors and I published the results of an extensive four-year investigation into the Texas execution of Carlos DeLuna, a young Latino man with a childlike intellect who was convicted of murder. His case flew through the courts. The entire process, from arrest to lethal injection, took only six years, or half the national average for capital cases.

It now seems virtually certain, however, that DeLuna was innocent. Only a more careful — and consequently longer and more expensive — prosecution and appeals process might have prevented the tragedy.

And:

The flaws in the system that condemned DeLuna — faulty eyewitness testimony, poor legal representation and evidence withheld from the defense — continue to put innocent people at risk of execution. Cameron Willingham, David Spence, Ruben Cantu, Larry Griffin, Gary Graham and Troy Davis are among those executed despite evidence that they were not guilty. What we don't know is how many more, like Carlos DeLuna, have fallen through the cracks without ever being noticed.

DeLuna's case disproves the myth that we can save the death penalty by generating more "quick and dirty" executions. The death penalty is broken. At great effort and expense, states such as California have tried every measure to fix it, but they have failed. The only solution is to end it.

You can read the complete Columbia Human Rights Law Review article at The Wrong Carlos.

Earlier coverage of Carlos DeLuna and the Columbia HRLR article begins at the link.  Earlier coverage of the SAFE California ballot initiative is also available

Texas Gaining National Rep for Executing Innocents

That's the title of Texas Observer Editor Dave Mann's take on the Columbia HRLR report, The Wrong Carlos.

Yes, it has come to this: Credible claims of innocence in multiple cases of men executed years ago. It’s becoming a disgrace for the state. What else can we say after the recent disturbing revelations in the case of Carlos DeLuna?

DeLuna was convicted of stabbing to death 24-year-old Wanda Lopez at a Corpus Christi convenience store in 1983. His conviction was based largely on the shaky testimony of a single eyewitness. Police had the eyewitness identify DeLuna at the crime scene while DeLuna was in custody—not ideal policing practice to say the least. No physical evidence linked him to the crime. Yet the state executed DeLuna in 1989. Now it appears they had the wrong man.

In 2003, Columbia University law professor James Liebman and a group of students began an eight-year reinvestigation of DeLuna’s case. Their results were recently published in a book-length Columbia Human Rights Law Review article.

And:

Texans have sadly grown accustomed to the horrifying tales of wrongful conviction after more than two dozen DNA exonerations in Dallas County and the high-profile cases of Anthony Graves and Michael Morton. But the DeLuna case is one of the most dispiriting yet. Though the details are different, what happened to DeLuna is eerily similar to the infamous Cameron Todd Willingham case and to the Claude Jones case. (If you’re not familiar with the Jones story, which the Observer broke in November 2010, then read this story. DNA tests debunked the key evidence against Jones, who was executed in 2000, though the tests didn’t conclusively establish his actual innocence.) Then there’s the case of Ruben Cantu, a former special ed student executed in 1993 for a crime he almost certainly didn’t commit.

"Carlos DeLuna, Cameron Willingham and Rethinking the Criminal Justice System," is Dan Simon's Huffington Post essay.  He's Professor of Law and Psychology at USC's Gould School of Law.  Here's the beginning:

Carlos DeLuna and Cameron Todd Willingham probably did not commit the crimes for which they were put to death by the state of Texas. In-depth inquiries into their convictions revealed bungled investigations, poor recordkeeping, mistaken eyewitness testimony, spurious forensic testimony and misconduct by law enforcement personnel, among other problems.

Sadly, the DeLuna and Willingham convictions are hardly isolated incidents. The National Registry of Exonerations, which launched this month, lists 890 men and women who were wrongfully convicted for serious crimes and spent, on average, more than 11 years in prison before being found factually innocent. That's not the complete story. The registry does not include an additional 1,170 people who were exonerated following large-scale police scandals. The actual number of false convictions is probably far greater.

At bottom, the primary cause for false convictions is the questionable quality of the evidence habitually used in criminal prosecutions. Poor evidence can be produced even when all actors follow procedures diligently and conscientiously. The problems lie with the investigative procedures themselves. Lineups, witness interviews, and suspect interrogations rely on crude and archaic investigative methods that are both insensitive to the prospect of human error and prone to exacerbate mistakes. As a result, the evidence elicited contains an unknown mix of accurate and inaccurate evidence.

Mystifyingly, criminal investigators are not required to make a reliable record of the evidence they collect. Verdicts are thus often based on faded memories, paraphrased statements, incomplete narratives and swearing contests about what transpired in the interrogation room. Hints of error are obscured from police supervisors and prosecutors, and they are concealed from lawyers, judges and juries. The lack of a reliable record opens the door to testimony creep -- as the trial date approaches, gaps in testimony get filled, narratives congeal, and reluctant witnesses become more confident.

The Catholic Sentinel posts, "Another innocent killed?"

America is one of the few remaining countries that allows its states to use the death penalty. For a state to kill people to demonstrate that killing people is wrong is crazy.

The Vatican and the U.S. bishops have spoken out against the death penalty.
Archbishop John Vlazny has called for an end to the death penalty in this newspaper.

“Human life is a gift from God, sacred from conception to natural death ,” he wrote last year.

In his encyclical Caritas in Veritate, Pope Benedict asserted that “society lacks foundations when, on the one hand, it asserts values such as the dignity of the person, justice and peace, but then, on the other hand, radically acts to the contrary by allowing or tolerating a variety of ways in which human life is devalued and violated, especially when it is weak or marginalized.”

Even as a deterrent to crime, the death penalty is not reliable. States with more executions do not generally have lower murder or crime rates.

The Story, an American Public Media radio broadcast, features an interview with Columbia Law prof James Liebman in, "Investigating an Execution."  It's conducted by Dick Gordon.  Audio is at the link.

Earlier coverage of Carlos DeLuna and the Columbia HRLR article begins at the link; also available, extensive coverage of the National Registry of Exonerations.  You can read the full article at The Wrong Carlos.

Politifact on the Shami Statement

In Sunday's Austin American-Statesman, Politifact examined Farouk Shami's statement from last week's Democratic gubernatorial candidates' debate, "Farouk Shami says state of Texas has killed lots of innocent people."

At a televised debate Monday, Democratic gubernatorial candidate Farouk Shami said he opposes Texas continuing the death penalty as things stand.

“If we are 110 percent that that person deserved death, I would support it, yes,” Shami said. “Not as it currently stands, absolutely not. We have killed lots of innocent people in the state of Texas.”

His declaration prompted us to take a closer look.

The state of Texas hasn’t admitted putting even one innocent person to death.

Still, Shami’s campaign suggested the candidate’s claim was backed up by the Death Penalty Information Center, a nonprofit clearinghouse that has written reports critical of the death penalty. Online, the center lists five individuals executed by the state of Texas from 1989 through 2004 as “possibly innocent.”

Shami spokeswoman Kelly Johnson said the list justifies Shami’s declaration that the state has put lots of innocent people to death. “Farouk believes that one innocent man put to death is too many,” Johnson said. “Therefore the five listed on the deathpenaltyinfo.org Web site constitute ‘lots.’”

Of course, the center’s description is “possibly” innocent—not “certainly.”

Steve Hall, who helms the StandDown Texas Project, a group that seeks a moratorium on executions in Texas, acknowledged: “No executed Texas death row inmate has been proved innocent beyond anyone’s doubts.”

Still, Hall told us he believes innocent people have been put to death in Texas. He singled out post-execution investigations by journalists that suggest three men -- Todd Willingham, Carlos DeLuna and Ruben Cantu -- were not guilty of the charges that led to their executions.

And:

Sam D. Millsap Jr., who had made the decision to charge Cantu with capital murder, told the Chronicle he never should have sought the death penalty in a case based on the testimony of an eyewitness who identified Cantu only after police officers showed him Cantu's photo three separate times.

“It’s so questionable. There are so many places where it could break down,” Millsap told the newspaper. “We have a system that permits people to be convicted based on evidence that could be wrong because it's mistaken or because it’s corrupt.”

It's possible, as Shami said, that Texas has put innocents to death--conceivably "lots" of them. Nationally, the death penalty information center writes, “there is no way to tell how many of the over 1,000 people executed since 1976 may also have been innocent. Courts do not generally entertain claims of innocence when the defendant is dead. Defense attorneys move on to other cases where clients' lives can still be saved.”

But without a state-approved review, perhaps, it’s a reach to say such executions have happened for a certainty.

Shami could have said it’s possible that innocent convicts have been executed or that the topic bears careful study. He asserted much more than that.

We rate his statement as False.

Earlier coverage begins with my post on Thursday.

Innocents Executed?

In Monday's Democratic Party gubernatorial debate, businessman Farouk Shami stated that Texas has executed innocent people.  (See transcript, here; news coverage, here.)  He's taken some criticism for that assertion, most notably the Dallas Morning News editorial, noted here.

It's true that no executed Texas death row inmate has been proved innocent beyond everyone's doubts.  However, three cases have been investigated by journalists and there is credible evidence that these three men were innocent of the crimes for which they were convicted and executed.

One is obviously Todd Willingham, about whom a great deal has been written lately.  The original reporting on his case was done by Steve Mills and Maurice Possley in a 2004 Chicago Tribune series on junk science.  Their December 9, 2004 report was titled,"Man executed on disproved forensics."

David Grann's September 2009 New Yorker article is noted here.  The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Ruben Cantu was executed in 1993. The original reporting on his case was done by Lise Oleson of the Houston Chronicle in November 2005.  Sam Millsap, then the Bexar County District Attorney,  authorized the capital prosecution.  Millsap has since said that he has no reason to doubt the recantation by the sole eyewitness; that the individual had more to lose by recanting than remaining silent after the fact. 

Millsap has also said of the Cantu case, “I fervently hope that there are only a few prosecutors and former prosecutors in America today who find themselves, as I do, in the position of having to admit an error in judgment that may have led to the execution of an innocent man.”  Once a staunch supporter of capital punishment, Millsap now speaks out against the death penalty.

Carlos DeLuna was executed in 1989, also likely the victim of mistaken identification.  The primary reporting on the DeLuna case was also done by Mills and Possley in a Chicago Tribune series of articles in June 2006.  Former death house chaplain Carroll Pickett has written about DeLuna in his memoir Within These Walls, and believes he was innocent.  The documentary, At the Death House Door, includes DeLuna's story.

In 2001, Texas Defender Service issued it's report, A State of Denial: Texas Justice and the Death Penalty.  The report's Chapter 9, Bitter Harvest, examined the cases of six men executed by Texas in spite of serious questions of innocence at the time of their executions: David Wayne Spence, Robert Nelson Drew, Gary Graham, Odell Barnes Jr., Richard Wayne Jones, and David Stoker.  You can look at the case summaries at the link, in Adobe .pdf format.

Gary Graham, executed in 2000, was identified by a single eyewitness.  Other crime scene eyewitnesses did not identify him, and at least one of those who saw the crime positively excluded him as being the wrong height of the killer.  Graham's court-appointed lawyer apparently never read the police report, however, and never interviewed any of the crime scene witnesses.  Graham was tried when the quality of appointed trial counsel was too often worse than a disgrace. 

In Graham's photo lineup, his was the only photo of an African-American male with short hair and no facial hair, as the suspect was described; all the other individuals in the photo lineup had bushy hair and/or facial hair.  Graham's execution came before a great deal of the recent research on problems with eyewitness identification centered around human memory and the need for proper law enforcement procedures.  From the 250 DNA exonerations (capital and non-capital) chronicled by the Innocence Project, we now know that faulty eyewitness ID is the leading cause of wrongful convictions.  Graham and his attorneys fought for meaningful review of his case for more than seven years until his June 2000 execution.
 
Since the TDS report A State of Denial, Frances Newton was executed in 2005.  Gov. Perry issued a reprieve to allow for forensics testing on evidence (the dress she wore the night her husband and children were murdered.)  At issue was whether the material detected on her dress was nitrates from gun powder residue or nitrates from fertilizer.  The dress had been improperly stored, however, and contaminated with other evidence thus making the testing issue moot.  In spite of a very bloody crime scene, she had no blood or trace of blood on her, her clothing, or shoes the evening of the murder.   Her execution came shortly after Hurricane Katrina hit New Orleans and the Gulf coast.  While her case had attracted media attention earlier, I believe that she was another victim of Katrina.

The Fall 2004 Scripps Howard Texas Poll showed that 70% percent of Texans believed that our state has executed innocent people.  That figure increased by 13 percentage points between 2000 and 2004.  Scripps Howard shuttered the poll shortly thereafter.

Some years ago retired State District Judge Jay Burnett, who presided over death penalty cases and was responsible for the creation of  the first standards for attorneys appointed to death penalty cases in Harris County, told NBC News Dateline: "There's no question in my mind that someone has slipped through the cracks and that there has been an innocent person executed."

One fact without dispute is that 11 former inmates of Texas' death row have been exonerated according to the Death Penalty Information Center. That's slightly more than one percent of the combined population of Texas death row and those executed in Texas.

I'm not writing to defend Shami's statement.  StandDown is nonpartisan and does not endorse political candidates.  His words, inelegantly stated, may have had more truth, however, than we can know or want to admit.

Kansas Legislative Hearing Continues

Today's Wichita Eagle reports, "Victims' families argue to keep death penalty."  It's written by Jeannine Koranda.

The state’s death penalty should be retained as justice for victims of killers like the Carr brothers and Justin Thurber, lawmakers heard Thursday.

“You cannot put a price tag on my sister’s life,” Jennifer Sanderholm told the Senate Judiciary Committee. “That is ultimately what you will do if you abolish the death penalty.”

Thurber raped, sodomized and murdered 19-year-old Jodi Sanderholm of Arkansas City in January 2007. He was sentenced to die by lethal injection a little more than two years later.

And:

Supporters of the death penalty said it is used sparingly — only for the most egregious crimes —and shouldn’t be weighed in terms of cost.

“By repealing the death penalty in Kansas, you will be placing the lives of others in jeopardy,” said Lois Muller, mother of Heather Muller.

“Heather was murdered by Jonathan and Reginald Carr Dec. 15, 2000,” said Muller. “Words can’t begin to put an understanding to the impact that sentence has had on our lives.”

And:

Those who back a repeal of the death penalty have told lawmakers it is too costly, not a deterrent to criminals and could end the lives of innocent people.

“After a while, increases in the severity don’t contribute to the deterrent effect of the penalty,” University of Colorado sociology professor Michael Radelet said Tuesday.

Money spent on death penalty cases would deter more crime if it were used to catch criminals and solve crimes, he said.

A 2003 state audit showed that costs in death penalty cases averaged $1.2 million, compared with $740,000 for other murder cases.

In testimony Wednesday, Sam Millsap, a former district attorney from San Antonio said he worried that the country’s justice system is not equipped to decide who lives and who dies.

He has prosecuted cases that led to executions, but in 2005, a newspaper investigation indicated his prosecution of Ruben Cantu may have resulted in the execution of an innocent man, he said.

“Because our criminal justice system, on its best day, is driven by decisions that are made by imperfect human beings who make mistakes, there is compelling evidence that our criminal justice system is simply not competent to decide who may live and who must die,” he said.

Kansas reinstated the death penalty in 1994, but the state has not executed anyone since 1965.

"Pleas made for executions," by Barbara Hollingsworth is in today's Topeka Capital-Journal.

Kelsey Smith's parents wore her smiling face on pins buttoned to their shirts as they told lawmakers the man who sexually assaulted and strangled their daughter deserved to face the state's death penalty law.

The Overland Park teen was murdered in 2007 by Edwin R. Hall, who was charged with capital murder and was facing the death penalty when he pleaded guilty and was sentenced to life in prison.

"Justice is priceless," said Smith's dad, Greg Smith. "We need to keep this law on the books."

The Senate Judiciary Committee on Thursday wrapped up three days of testimony on two bills that seek to abolish the death penalty. The committee is to begin work on the bills Jan. 29.

Earlier in the week, the testimony was dominated by legal arguments, cost estimates and data. On Thursday, testimony from families of murder victims dominated the day. They asked lawmakers not to consider potential savings as a reason to do away with the death penalty and asked that death sentences be carried out faster.

And:

One bill (SB 208) being considered failed to advance during last year's legislative session. A new bill (SB 375) would allow the abolition of the death penalty while also maintaining death sentences for those already sentenced to death and those who commit crimes of capital murder before July 1. It would create a new charge of "aggravated murder" that would carry a possible sentence of life imprisonment without the possibility of parole.

And:

Sen. Tim Owens, R-Overland Park, committee chairman, told the families he knew the debates were painful but said it was an important discussion.

Senate Majority Leader Derek Schmidt, R-Independence, said the only question about the death penalty debate is how quickly it is over.

"The death penalty bill is not going to make it through the process this year," said Schmidt, who sits on the committee.

Earlier coverage of the Kansas hearings starts here.

Ex-Prosecutor: 'I Made a Mistake'

That's the title of Tim Carpenter's report from Kansas' Topeka Capital-Journal.  It appeared in the Sunday edition.  LINK  An extended excerpt:

The life, and more pointedly, the death of small-time hoodlum Ruben Montoya Cantu is etched into the consciousness of former Texas prosecutor Sam Millsap.

Millsap's legal prowess and persuasive skills as Bexar County district attorney sent the 26-year-old Cantu to die by lethal injection at midnight Aug. 24, 1993. Millsap had no physical evidence and no confession, but he parlayed one person's eyewitness testimony into a guilty verdict and death sentence for the 1984 slaying of Pedro Gomez, 25, inside a vacant San Antonio house.

Another notch in the belt for law and order, Texas style.

One problem.

Millsap is now convinced Cantu should have never been on death row.

"I made a mistake," Millsap said. "Ruben Cantu should not have been prosecuted for capital murder. You have to make sure you're getting it right. Testimony of a single eyewitness is not enough."

Millsap was in Topeka on Saturday for the annual meeting of the Kansas Coalition Against the Death Penalty. The organization is hopeful Millsap's insights into the issue can inspire Kansas policymakers to give consideration to abolishing capital punishment. Ten men have been sentenced to death in Kansas since 1994. The Senate Judiciary Committee is scheduled to conduct hearings in January on a bill to repeal the 15-year-old law.

Opponents of the current law advanced a bill to the Senate floor during the 2009 session, but the measure wilted amid challenges from Democratic Attorney General Steve Six and Senate Majority Leader Derek Schmidt, an Independence Republican seeking the 2010 nomination for attorney general.

Fifteen states have no capital punishment statute, with New Jersey abolishing the sanction in 2007 and New Mexico ending the practice in 2008. At least one legislative chamber has passed abolition measures in New Hampshire, Colorado, Montana and Connecticut. Texas, Virginia, Oklahoma and Missouri lead the nation in executions.

Millsap, who has practiced law for 35 years, said Kansas didn't rush to reinstate the death penalty in the 1970s when other states took the plunge. There have been no executions in Kansas since 1965. The state's reticence to pull the trigger on an absolute punishment suggests the public might be persuaded to remove the death penalty from the scales of justice, he said.

"Texas has executed 442 people in the same period Kansas has executed nobody," he said.

Millsap doesn't count himself among those who abhor the death penalty on moral grounds. Instead, his objection centers on the frailties of the judicial system and the extravagant cost of warehousing a special class of inmate throughout years of appeals.

He said in states such as Kansas that don't execute people the status quo for those facing capital punishment takes the form of life without parole.

And:

While Texans remain openly hostile to the idea of abandoning capital punishment, Millsap said the tragic aftermath of the Cantu case should cause level-headed people to evaluate the death penalty with fresh eyes.

"You assume the typical Kansan is a reasonable person and that the typical person is willing to take another look at this issue," Millsap said.

Earlier coverage from Kansas begins here; more from Sam Millsap in the Ruben Cantu index.

Error-Prone Death Penalty System Ensnares Innocent

That's the title of an OpEd from the Sunday edition of the Houston Chronicle.  It's written by John Holdridge and Christopher Hill of the ACLU Capital Punishment Project.  LINK

Cameron Todd Willingham's unthinkable story has shocked the conscience of many Americans. The state of Texas executed Willingham in 2004 for supposedly murdering his three children by setting their house on fire. His conviction was based in substantial part on testimony by the state's arson experts about the cause of the fire. A recent report by a fire expert hired by Texas condemns the state's arson testimony as bogus and unscientific.

In other words, Willingham almost certainly was innocent — as he desperately maintained until his last dying breath.

The expert's damning report has led to an onslaught of publicity about the case. However, this publicity should not mislead Americans into thinking Willingham has been the only innocent victim of our error-prone system of capital punishment. There have almost certainly been at least nine others, and possibly many more given the flaws in our criminal justice system revealed by the recent explosion in DNA exoneration. These include Carlos DeLuna, Ruben Cantu, Gary Graham, Larry Griffin and, perhaps, Sedley Alley — names no doubt unfamiliar to most Americans.

The state of Texas executed DeLuna in 1989 for stabbing to death a clerk at a convenience store. At his trial, DeLuna's lawyers attempted to show that the murder was committed by a man named Carlos Hernandez. The lead prosecutor called Hernandez a “phantom.” Hernandez was real. A post-execution investigation by the Chicago Tribune showed that Hernandez almost certainly committed the crime, and Hernandez's family acknowledged that he boasted about getting away with the murder.

Cantu was executed by the state of Texas in 1993 for an attempted robbery-murder. His conviction was based on testimony from his co-defendant and a surviving victim of the attempted robbery. After Cantu's execution, both men recanted, and the victim disclosed that he had been coerced by police to identify Cantu. The prosecutor in Cantu's case, Sam Millsap, has since become a vocal campaigner against the death penalty.

In 2000, the state of Texas executed Graham, who changed his name while in prison to Shaka Sankofa. The evidence against him consisted of one eyewitness who, after being subjected to a suggestive photo lineup, said she saw Graham through her car windshield in a dark parking lot from 20 to 40 feet away. Other witnesses stated that Graham was not the murderer because the murderer was much shorter than he was.

And:

Willingham's case would be frightening enough if it were unique. The fact that there may be several innocent people who have been executed is abhorrent and should give any capital punishment proponent serious pause.

The execution of an innocent person is an irrevocable event that, as Supreme Court Justice Harry Blackmun once wrote, comes perilously close to murder. No society should tolerate it. Of that, there can be no doubt.

Earlier coverage begins here.

Death Penalty System Fatally Flawed

That's the title of an OpEd from the Saturday San Antonio Express-News by former Bexar County District Attorney Sam Millsap.  LINK

According to a report released last week by the Texas Coalition to Abolish the Death Penalty — Texas Death Penalty Developments in 2008: The Year in Review — this year Texas juries condemned the fewest number of people to death in more than 30 years.

As of Dec. 10, a total of 10 people (nine men and one woman) had been sentenced to death in Texas in 2008.

Perhaps this reflects the public's growing uneasiness with the death penalty or prosecutors' recognition that the costs of the ultimate punishment — both human and financial — are too high. Or perhaps my fellow Texans have come to share my realization that a fallible system that puts people to death simply cannot be trusted.

Evidence of misplaced trust in the death penalty system was on stark display on Aug. 25, when a Collin County court dismissed all charges against death row inmate Michael Blair for the 1993 rape and murder of 7-year-old Ashley Estell.

After the results of new DNA testing failed to connect him to the crime, those involved in the case agreed that there was not enough evidence to uphold the conviction. Blair had spent 14 years on death row. Michael Blair was the fourth person exonerated from death row nationally in 2008 and the 130th overall since 1973, according to the Death Penalty Information Center.

And:

We cannot sanction a death penalty system that gets it right most of the time. An honest assessment of the problems associated with the death penalty is long overdue.

I urge Texas lawmakers to consider the cases of Cameron Todd Willingham, Carlos De Luna, Michael Blair, Ernest Ray Willis and others when they reconvene in January and to recognize the ultimate fallibility of a system that no longer deserves our trust... or our support.

When it comes to human life, a system that gets it right most of the time should not exist at all.

More from Sam Millsap in this earlier post.

Death Penalty Will Always Put Innocent Lives at Risk

That's the title of an OpEd in Annapolis's The Capital by Sam Millsap.  LINK  Here's the beginning of this must-read:

In recommending an end to the state's death penalty, the Maryland Commission on Capital Punishment overwhelmingly supported a critical finding: Maryland's death penalty system carries a real risk of executing an innocent person.

At the risk of being called a carpetbagger, I want to address this issue from Texas, the execution capital of the free world, and echo the commission's findings that the risk is real - even in Maryland.

I am no wild-eyed, pointy-headed liberal from some out of the way backwash. I am the former elected district attorney in San Antonio, Texas, the seventh-largest city in America, and was, until a few years ago, a strong supporter of the death penalty.

As Bexar County district attorney, I was responsible for the prosecution of several capital murder cases, each of which resulted in the conviction and execution of the defendant. In 2005, the Houston Chronicle, in a remarkable piece of investigative journalism that has complicated my life immeasurably, argued persuasively that one of my prosecutions - the Ruben Cantu case - may have resulted in the execution of an innocent man.

I fervently hope that there are only a few current and former prosecutors in America today who find themselves, as I do, in the position of having to admit an error in judgment that may have led to the execution of an innocent man.

Millsap is also a member of the Constitution Project's Death Penalty Initiative.  Earlier coverage of the Ruben Cantu case is here; the Cantu category index includes other news of Millsap.

Sam Millsap Testifies at Nebraska Capitol

Former Bexar County (San Antonio) District Attorney Sam Millsap. was in Lincoln, Nebraska yesterday to discuss his experiences with prosecuting capital punishment cases.  Omaha's KPTM-TV had a preview, here.

Earlier coverage of legislative proposals in Nebraska is here.

As DA, Millsap authorized the death penalty prosecution of Ruben Cantu, now regarded as a likely innocent executed by Texas -- one of three likely innocents whose cases have been discovered and reported on by journalists.  Millsap now regrets the prosecution, and has said that he believes that the death penalty should never be sought in a case whose evidence rests upon the testimony of a single eyewitness.  Millsap has also said that he has no reason to doubt the recantation of the eyewitness in the Cantu case, who has said that he felt pressured by a San Antonio police officer to id Cantu.

More on the case of Ruben Cantu is here.

Dan Rather Reports

A transcript of the Dan Rather Reports episode, "Did Texas Execute Innocent Men?," is here.  Soon, you should be able to watch the report online at this LINK.  Here is the introduction:

OUR NATION HAS HAD A LONG AND AT TIMES HEATED DEBATE ABOUT THE DEATH PENALTY. IT'S A DEBATE THAT HAS TRADITIONALLY BEEN ARGUED ON MORAL AND  CONSTITUTIONAL GROUNDS. BUT, DNA EVIDENCE, WHICH HAS NOW  EXONERATED AT LEAST 200 PRISONERS, SOME ON DEATH ROW, HAS RAISED NEW QUESTIONS ABOUT THE GUILT OF THOSE EXECUTED IN THIS COUNTRY QUESTIONS THAT ALSO EXIST IN  CASES FOR WHICH THERE IS NO DNA EVIDENCE AVAILABLE HAVE INNOCENT PEOPLE BEEN  EXECUTED? THIS IS A QUESTION THAT'S BEEN  SURFACING MORE FREQUENTLY HERE IN MY HOME STATE  WHERE, POLLS HAVE SHOWN, THE OVERWHELMING MAJORITY OF TEXANS SUPPORT THE DEATH PENALTY. SINCE 1976, WHEN THE U.S. SUPREME COURT REINSTATED CAPITAL PUNISHMENT, TEXAS HAS EXECUTED MORE CONVICTS THAN ANY OTHER STATE - MORE THAN ONE-THIRD OF ALL EXECUTIONS IN THE  NATION.         

TONIGHT'S REPORT GIVES YOU A LOOK AT TWO TEXAS MURDER CASES THAT ENDED IN EXECUTION. BOTH  MEN WERE TRIED AND CONVICTED AND EXECUTED ON THE BASIS OF EVIDENCE THAT IS NOW, YEARS LATER, BEING CALLED INTO  QUESTION.

The episode will re-broadcast several times this month.  The program schedule is here.

'Dan Rather Reports' to Examine Cantu and DeLuna Cases

His HD Net program will air Tuesday, September 4.  A newsclip from the program is here.  An excerpt from the press release:

Next Tuesday's DAN RATHER REPORTS will reveal new details surrounding two capital murder cases in Texas - leading to the executions of two men that may have occurred as the
result of flawed evidence.  The episode airs on Tuesday, September 4 at 8:00 p.m. on HDNet.

In "Did Texas Execute Innocent Men?" Dan Rather speaks with key players in the cases of both Ruben Cantu and Carlos De Luna both of whom died by lethal injection in Texas where more than one-third of the nation's executions take place.

Ruben Cantu was never convicted of a crime before the November 1984 murder case that led to his execution in 1993.  In his investigation, Dan Rather speaks with former San Antonio district attorney Sam Millsap who originally sought the death penalty for Cantu but now believes he made a mistake.

Rather also speaks with principal investigators in the case and eyewitnesses, who expose serious discrepancies in the evidence that ultimately led to the execution of Cantu, who was only 17 at the time of his arrest.

DAN RATHER REPORTS also investigates the 1989 execution of Carlos De Luna, whose conviction relied on uncertain eyewitness testimony.  No physical evidence was ever found linking De Luna to the murder for which he was convicted, and for the first time on television, the private investigator who scrutinized the case discloses new information which could have exonerated De Luna 17 years ago.

Were Cantu and De Luna innocent and wrongly executed?  Rather delves into these gripping cases on DAN RATHER REPORTS, Tuesday, September 4 on HDNet at 8:00 pm. ET.  The program also airs at 11:00 pm ET, to accommodate West Coast prime time television.

More on Ruben Cantu's case is here.  More on Carlos De Luna's case is here and here.  The innocence index is here.

Unassailable Justice

That's the title of an editorial in the Sunday Dallas Morning News regarding the Reed report on Ruben Cantu.  LINK

Texas, the leading death-penalty state, too often fails to ensure        airtight justice.    

Responding to fears that a San Antonio man was executed for a murder he didn't commit, the Bexar County district attorney's office has finished a re-investigation and concluded that Ruben Cantu was guilty and properly paid with his life in 1993.

Many critics – us included – feel shortchanged by DA Susan Reed's review. For starters, Ms. Reed was the judge who set an execution date for Mr. Cantu. When a key witness recanted last year, the appearance of vested interest glared like neon and should have prompted her to call for outside review.

Instead, her office has produced what skeptics may always see as a mere obligatory answer to charges that officials concocted a case against Mr. Cantu. An outside analysis, even if it reached the same conclusion, would at least have the aura of legitimacy.

The sorry truth is that Texas has no established apparatus to consult when justice is strongly questioned. Lawmakers could have fixed this deficiency by approving creation of an innocence commission to study troubling cases and recommend fixes in the justice system. The proposal passed the state Senate this spring but died in the House, along with good sense.

More on the Cantu case, including a link to the Reed report, is here.

There Are Still Doubts on Cantu Execution

That's the title of Maro Robbins' article in today's San Antonio Express-News.  LINK  Cantu, of course is one of three men executed by Texas in whose cases journalists have raised significant evidence of innocence.

The nagging question about whether Texas executed the wrong man for a 1984 murder now has a formal answer, one that bears the official seal of prosecutors who followed a thousand-page paper trail and quizzed more than 50 witnesses.

Whether it's convincing is another matter.    

Closing Texas' first government review of a possible wrongful execution, Bexar County District Attorney Susan Reed announced in a report last month, "No credible information has been discovered, from any source, that supports the claim that Ruben Cantu was innocent."

Her report essentially rebutted an earlier investigation financed by the NAACP Legal Defense Fund that obtained a startling recantation from a key witness and raised alarming doubts about the evidence against Cantu, a San Antonio convict put to death in 1993.

Reed's report exposed weaknesses in the innocence claims. But, critics said, it also overstated the evidence of guilt and glossed over troubling aspects of the case so that it read more like a closing argument than an impartial presentation.

Absent smoking-gun proof that might settle the matter, the report now is grist for an ongoing debate about how Texas should respond when the evidence in a death penalty case appears to collapse years after the execution.

Reed's investigation was controversial from the outset largely because, before becoming district attorney, she was the judge who rejected one of Cantu's appeals and set his execution date.

Her report did little to dispel the suspicions of bias.    

"What we got with the DA's report is not a fair evaluation, but an evaluation with a cloud over it — a cloud created by a fact-finder with a significant interest in the outcome," said Gerald Goldstein, the attorney for Juan Moreno, the witness who survived nine bullet wounds to testify at trial and now says he falsely accused Cantu.

The DA's investigation was prompted by the Houston Chronicle's publication of its own review of witnesses' statements of innocence in the Cantu case in 2005.

Reed has insisted her judicial role in Cantu's case was so limited that she has no vested interest in its outcome. Suggesting her office's good faith was demonstrated by the considerable resources it devoted to the inquiry, a spokesman for Reed called the report fair.

The report is also carried in its sister paper, the Houston Chronicle, as "Cantu case report hasn't shut door on debate."  Earlier coverage, including a link to the report, is here.

The Houston Chronicle's investigative report, "Death and Doubt," was written by Lise Olsen.

Independent Reviews Needed to Fix Justice System Failures

That's the title of an editorial in today's Austin American-Statesman focusing on the Bexar County District Attorney's report on Ruben Cantu.  LINK

When the justice system errs, society benefits from timely correction.

Texas has made its share of mistakes, but advanced DNA testing has allowed the state to correct many of those errors, and that is welcome progress.

In death penalty cases, however, errors cannot be corrected after a person is put to death. We can and should learn from them to prevent any future miscarriages of justice. That requires a fair and thorough search for the truth when legitimate questions are raised.

That is what should have happened in the case of convicted teen killer Ruben Cantu, who was executed in 1993. But instead of getting answers after a lengthy investigation, we're left with the same doubts about the case: Did Cantu rob and murder a San Antonio construction worker, Pedro Gomez, in 1984? Did Texas execute the wrong person for that crime?

We should have learned the truth from a disinterested review — and would have — if the state had an independent entity to conduct reviews when questions arise in criminal cases. Instead, we have a system that leaves the search for truth up to Texas' district attorneys, who more often than not are deeply invested in the outcome.

Last week, Bexar County District Attorney Susan Reed concluded that Cantu committed the crime. But Reed's history and role in the case cast doubts on those findings. Reed is a former judge in the case who denied an appeal by Cantu and set his execution date. That involvement is a heavy burden to bear, particularly if Cantu was innocent. We've made repeated calls for Reed to turn over the investigation to an outside examiner. The public deserved an independent, objective review.

Earlier coverage, including a link to the report, is here.

Missteps Mar Review of Cantu Death Case

That's the title of an editorial in the San Antonio Express-News about the Bexar County District Attorney's troubled investigation into the Cantu case.  LINK

After a 19-month investigation into whether Texas executed an innocent man, the report on the Ruben Cantu case — which has garnered national attention — is in.

And Bexar County District Attorney Susan Reed should not be surprised that the report's findings, which confirm the investigation and legal proceedings that put Cantu on death row in 1985, have been greeted with skepticism.

Last July, the DA's own investigators invited that skepticism. In recorded conversations with the police officer who led the criminal probe that resulted in Cantu's conviction for murder, the investigators dismissed witnesses who proclaimed Cantu's innocence as liars. One said their inquiry would "go forward with the fact that it was justified and everything was correct and that's the way it is."

Additionally, Reed knows that some of the skepticism involves her own tangential connection to the Cantu case as a district court judge. Reed had nothing to do with the trial or sentencing. But having inherited the case in the 144th District Court, Reed was responsible for the technicality of setting Cantu's execution date.

In response to obvious questions about the objectivity of the DA's investigation, the Express-News Editorial Board last year called on Reed to turn over the inquiry to an independent law enforcement agency.

She declined to do so.    

Given this history, you'd expect Reed to have covered all other bases to alleviate criticism. Yet after a lengthy examination involving 50 interviews, one person was conspicuously left out of the investigation — Sam Millsap, the district attorney under whose watch the Cantu case was prosecuted and who later stated it was a mistake to seek the death penalty.

Here's an excerpt from the introduction of the Reed report:

Twenty years after the trial and twelve years after the execution, the Houston Chronicle, utilizing an investigation done by the NAACP Legal Defense & Educational Fund, headlined and front-paged stories by Lise Olsen suggesting that Cantu was innocent. According to the articles, the sole witness to identify Cantu before the jury, Juan Moreno, had lied. The stories were reprinted and expanded by the San Antonio Express-News.

The interests of justice required the Olsen stories be analyzed and an investigation was conducted to determine if sufficient evidence existed to justify pursuing an indictment under Texas laws of Moreno for murder by perjury and if another individual, Ramiro Reyes, who David Garza now claims was with him on the night of the offense, should be charged with the capital murder of Pedro Gomez.

Unfortunately, that highly legalistic charge to the investigation completely overlooked the most basic of questions, "Was an innocent man wrongfully convicted by Bexar County?"  or even "What went wrong with the investigation and prosecution of Ruben Cantu?"

Earlier coverage is here.  A link to the report is here.

News Coverage of Cantu Report

The Houston Chronicle has, "Bexar DA calls execution justified."  The San Antonio Express-News runs the story with the headline, "DA says Cantu wasn't wrongly put to death."  The story is reported by Lise Olsen of the Chronicle and Maro Robbins of the Express-News, both Hearst newspapers.

The Bexar County district attorney concluded Tuesday that convicted killer Ruben Cantu was justifiably executed in 1993 and that "no credible information has been discovered, from any source" that supports witnesses' innocence claims.

"The claims of Cantu's innocence, made more than 12 years after his execution lack any credible supporting witnesses or verifiable facts," the report asserts.

The DA's investigation concludes that witnesses, including the lone surviving victim of the robbery, "cannot be believed" because of their "criminal histories, payments they have received for their cooperation and the implausibility of their stories."

The report also unveiled the previously unpublicized account of a man who said Cantu confessed to him in 1985 in the Bexar County jail.

Cantu was executed for the Nov. 8, 1984, robbery-murder of Pedro Gomez, a Mexican laborer who was robbed and shot to death in a house on Briggs Street in San Antonio, located across the street from where Cantu, then 17, lived with his father.

The DA's investigation was launched in late 2005, after the Houston Chronicle reported the lone witness in the case, Juan Moreno, had recanted. Moreno survived nine bullets and provided the only trial evidence that tied Cantu to the crime.

The DA's report, however, said that Moreno's current statements "are vague and inconsistent" and that he is unable to provide any significant detail or positively identify the shooter.

The report released Tuesday is based on interviews with 50 people and included evidence from 35 Texas agencies.

While the report relies on conversations with former prosecutors originally involved in the case in 1985, prosecutors did not talk to the district attorney at the time of the case, Sam Millsap. Millsap has publicly called the Cantu case a "mistake" and apologized for it.

The report is critical of Richard Reyna, the private investigator who previously interviewed witnesses while looking into the possibility that Cantu was an innocent man executed by the state.

Reyna, a former sheriff's deputy and Conroe-based detective whose work on innocence claims has contributed to the release of seven death row inmates, said he has never faced such an attack on his methods.

Reyna said he believes DA Susan Reed is biased because as a judge, she set Cantu's execution date, and cannot deal with her part in the death of an innocent man.

"She's shameless," he said, adding that the report has "discounted, disrespected and insulted" Moreno.

"No fair-minded person could doubt his account that police repeatedly pressured him to falsely identify Cantu," Reyna said. "It is deeply insulting to Mr. Moreno to suggest — as this DA's report does — that he would go out of his way to exonerate the man who killed his friend and who tried to kill Mr. Moreno himself — and very nearly succeeded."

Cantu's mother, Aurelia Cantu, said the DA's conclusions would do not shake her conviction that her son was murdered by the state. "Nothing has changed," she said.

This post has links to the report and earlier coverage.

Ruben Cantu

Bexar County District Attorney Susan Reed has issued this report on the case of Ruben Cantu, a likely innocent executed by Texas.  Reed, who as a judge had been involved in the Cantu case, resisted all calls to remove herself and her office from the investigation.  Among others, a group of legal ethicists called upon Reed to recuse herself.

Former Bexar County District Attorney Sam Millsap, who authorized the death penalty prosecution, called for an independent, unbiased investigation into the case.  Millsap said that he had no reason to doubt the recantation by the sole eyewitness, Juan Moreno, and that he regrets that the death penalty was sought in the case.  Millsap has called for a moratorium on executions in Texas.  He is a member of the Constitution Project's Death Penalty Initiative.

This is the conclusion from the executive summary:

   Based on the available evidence, which has been compromised to some degree by
the passage of nearly two decades since the offense, this investigation concludes that
Ruben Cantu was guilty of the capital murder of Pedro Gomez and the intentional
shooting of Juan Moreno. The claims of Cantu’s innocence, made more than 12 years
after his execution, do not withstand the scrutiny of close review and analysis, and lack
any credible supporting witnesses or verifiable facts.

   On the contrary, when the claims supporting Cantu’s asserted alibi that were
capable of verification were investigated, the evidence negated or fatally undermined
Cantu’s alibi. Inextricably coupled with the lack of supporting evidence is the admitted
bias of those asserting Cantu’s innocence and the absence of credibility of Cantu’s
friends and associates who have told various contradictory versions of the story through
the years depending on which version benefited them the most at the time.

   Finally, and most convincingly, Ruben Cantu’s admissions of guilt both before
and after his trial and conviction put to rest any reasonable doubt concerning the police
investigation and tactics used, the skills and strategy of the prosecution and defense
attorneys, and the verdict of guilty rendered by an impartial jury.

More on the Cantu case is here, with links to the exclusive Houston Chronicle investigative reporting that broke the story of a third likely innocent executed by Texas.  In addition to Cantu, journalists have also reported on the cases of Carlos DeLuna and Todd Willingham, two more likely-innocents executed in Texas.  In Missouri, a report on the case of Larry Griffin, another likely-innocent executed, is expected shortly.

Tomorrow I will enter a new post with news coverage of the report. 

In Texas, the Death Penalty Should Be Reviewed, Not Expanded

That's the title of Rebecca Chapa's latest column for the San Antonio Express-News.  LINK

If the state is going to put someone to death, there should be more evidence than the eyewitness testimony of one person, reliable or not. This is a poster case for the wrongful application of the death penalty.

The death penalty is falling out of favor, or at least being scrutinized, in several other states. The lethal injection method has been legally challenged as "cruel and unusual" punishment, and in many states, there is a moratorium on the practice.

Texas is not one to follow other states, of course. Rather, the Legislature will soon have before it a bill that would expand the list of capital crimes to include repeat child molesters.

One of several proposals modeled on Jessica's Law, the bill would make repeat child molestation punishable by death.

There are other bills pending that stop short of the death penalty but call for mandatory minimum sentences and lifetime monitoring programs. Some proposals would lengthen the statute of limitations on such claims from 10 years to 20 years.

Rather than burnishing Texas' reputation for state-sanctioned killing — 389 inmates are awaiting the needle — legislators should consider the non-death penalty alternatives.

This state took a step in the right direction in 2005 when it began offering life without parole as an option for jurors.

And:

In a broader context, there is growing concern over the number of DNA-exonerated criminals released from death row, charges of inadequate legal representation and alleged disparities in the way the penalty is sought and applied.

"At a time when the death penalty is showing signs of stress, both nationally and in Texas, any expansion in light of those circumstances is unwise," said Edwin Colfax, director of state reform campaigns for The Justice Project, a nonpartisan organization that addresses inequalities and unfairness in the American criminal justice system.

More on the work of the Justice Project is here.  The Project was the principal advocate supporting passage of the Innocence Protection Act by the U.S. Congress.  It is active in Texas and several other states to foster improvements in the indigent criminal justice system.

More on Ruben Cantu

San Antonio Express-News columnist Jaime Castillo has, "Texas legal system failed Ruben Cantu - whether he was guilty or not."

The fact that Cantu's prosecution bordered on a travesty is now not in much dispute. Sam Millsap, the former Bexar County district attorney who made the decision to charge Cantu with capital murder, has publicly admitted it was the wrong decision.

Chief among the problems was the case was built on an eyewitness — Moreno — who twice had failed to identify Cantu in photos shown to him by police.

On the third try, Moreno, feeling pressure by police, identified Cantu        as his friend's killer.    

"It's so questionable. There are so many places where it could break down," Millsap, who's now in private practice, told the Houston Chronicle in November 2005. "We have a system that permits people to be convicted based on evidence that could be wrong because it's mistaken or because it's corrupt."

Millsap's candor, unfortunately, is rare in this case.

More on the Cantu case is here.

More on Ruben Cantu

Maro Robbins of the San Antonio Express-News and Lise Olsen of the Houston Chronicle have again teamed up for another story on the Ruben Cantu case, a likely innocent executed by Texas.  The Houston Chronicle calls it, "

Once the star witness in a capital murder case, Juan Moreno is convinced that his testimony sent the wrong man to the execution chamber, but he's having trouble convincing others.

Memory lapses and apparent contradictions emerged as Moreno, a San Antonio construction worker, told Bexar County prosecutors this month that he buckled to police pressure and falsely accused a San Antonio teenager named Ruben Cantu of murder in 1985.

The Feb. 8 interview is among the final tasks in the district attorney's yearlong examination of claims that Cantu was wrongly executed in 1993 for the robbery murder of Moreno's friend, Pedro Gomez. More than four hours of questioning left prosecutors more skeptical than ever.

When asked later by reporters if he still believed Cantu was innocent, Moreno hesitated at first. A few minutes later, he insisted: "I've always known he was innocent."

Moreno had not spoken publicly since November 2005 because he had been threatened with prosecution for potentially perjuring himself at Cantu's original trial.

Earlier coverage of the Cantu case is here.  Cantu was executed in 1993.

Sam Millsap

The former Bexar County (San Antonio) District attorney is profiled in today's Houston Chronicle in, "Ex-Bexar DA crusades against the death penalty."

Sam Millsap Jr. knows that most people in his home state disagree with his fervent opposition to the death penalty, but the former Bexar County district attorney remains puzzled by a particular expression of sympathy he gets from many of his fellow Texans.

They frequently admonish him not to beat himself up over the execution of Ruben Cantu, a potentially innocent man Millsap helped send to the death chamber.

Millsap says his well-wishers almost always offer the same advice: "Whether he was in fact guilty of the crime for which he was executed is immaterial — he was a worthless human being who is better off dead."

Those words always stop him in his tracks, convincing him that he has a lot of work to do in his own backyard.

Millsap has trouble getting an audience for his views in Texas, where polls consistently suggest a majority supports the death penalty. But when a New Jersey commission earlier this month backed the abolition of the death penalty, it was partly based on Millsap's testimony.

"I remember him well," recalled the commission's chairman, the Rev. M. William Howard Jr. "Whenever a prosecutor is able to tell that kind of story, people stand up and take notice."

Millsap travels to Paris in early February to speak to the Third World Congress Against the Death Penalty to explain his evolution from a full-throated execution advocate to a death penalty abolitionist. He knows that his pedigree as a Texas prosecutor is part of the draw.

"When I go to these conferences," he said, "people kind of stare at me like I'm the two-headed donkey in the freak show because I come from this place where people love to execute criminals."

He's 55 now, but Millsap was young and brash when he took over as Bexar County district attorney in 1983. He left office in 1987, he said, confident that all who were sentenced to die on his watch was guilty of the crime for which he was convicted.

But the next 13 years whittled away at that confidence.

DNA evidence was routinely setting the convicted free, he said, and a groundbreaking Columbia University study of capital murder cases that had been overturned on appeal revealed rampant errors in defense and misconduct by prosecutors and police. When Illinois Gov. George Ryan declared a moratorium on executions in his state, based on evidence that 13 Illinois death row inmates might have been wrongfully convicted, it was a showstopper.

Millsap, now in private practice, issued a statement in 2000 revealing that the man who had once been so bullish on the death penalty now had grave doubts about the system.

"I made my statement. I went back to living my life," the former San Antonio prosecutor said. "And in December 2005, (reporter) Lise Olsen and the Houston Chronicle complicated my life immeasurably by satisfying me that a prosecution and execution that I was responsible for may well have ... produced the execution of an innocent man."

Ruben Cantu, a gang member convicted of a robbery-related murder when he was 18, was executed on Aug. 24, 1993. In 2005, a Chronicle investigation suggested that Cantu was possibly innocent.

A co-defendant signed a sworn affidavit saying Cantu was not with him the night of the killing. The sole eyewitness to the crime has since recanted his identification of Cantu, saying he felt pressured by police to name him as the killer. And there was no physical evidence connecting Cantu to the crime.

"What I realize now with maturity I didn't have at 35, or however the hell old I was, I realize that eyewitness testimony is not as reliable as I thought it was at that point in my life," Millsap said. "We'll never know whether Cantu was innocent or not."

When someone raises serious questions about something that happens on a former prosecutor's watch, Millsap said, that prosecutor has a duty to deal with it. And he's willing to travel just about anywhere to talk about the stakes involved when the judicial system fails to protect the innocent.

"The corresponding regret that I have and feel so deeply," he said, "is that prosecutors of the other Texas cases at the center of this debate are silent or refuse to acknowledge the possibility of mistakes."

Robert Kepple, executive director of the Texas District and County Attorneys Association, agrees that enforcement of the death penalty is not a particularly troubling issue for most state prosecutors.

"If you ask prosecutors if they feel comfortable about asking for the assessment of death, they're going to say yes," Kepple said. "Of the vast majority of eligible cases, the vast majority (of prosecutors) seek something other than death."

While nine men sit on death row in New Jersey, the state has not executed anyone in 43 years. The state Legislature is expected to accept the commission's recommendation to abolish the death penalty.

"It was encouraging for me to have the opportunity to play a constructive role in a state that is looking hard at whether the death penalty is something that they want to be part of their legal fabric," Millsap said.

"I love the state of Texas and wouldn't live anywhere else," he said. "I just think, on this particular issue, we're dreadfully wrong."

Earlier coverage of the Cantu case and Millsap is here.  He's been an active member of the Constitution Project's Death Penalty Initiative with fellow San Antonian William Sessions, the former federal judge and FBI Director.

Bexar County DA Criticized by Audior

Today's article in the San Antonio Express-News, "Audit fault's DA's office over funds," is not directly related to Susan Reed's much maligned investigation into the prosecution of execution of Ruben Cantu, but it may say legions about the office.

A report by the county auditor concluded that District Attorney Susan Reed's office mishandled an asset forfeiture fund in several ways, such as failing to hand over $85,000 in court fees during a three-year period.

Another problem identified in the report by County Auditor Tommy J. Tompkins involves $3,900 in cash that a sheriff's investigator used as evidence in five criminal cases without getting a receipt. The money still has not been accounted for, and the Sheriff's Department says it may have been lost or destroyed.

    

The audit report looked at a fund made up of money or financial instruments seized in the course of crime investigations.

    

The 25-page audit, dated Dec. 12, said Reed's office withheld $63,000 in forfeited assets, including a 15-year-old check, that should have been returned to its rightful owners or placed in the county's general fund.

In spite of having at least the appearance of a conflict of interest - while she was a judge, Reed had ruled on the Cantu case - the district attorney has refused all calls to allow an independent investigation into the case of a likely innocent man who was convicted in San Antonio and executed.  The investigation has thus far produced no results.  More on Ruben Cantu is here.

Profile of Sam Millsap

Bob Braun, a columnist for the Newark Star-Ledger, has a must-read profile today of Sam Millsap, the former elected District Attorney of Bexar County.  LINK

More than that, really. More than a fool's errand. The relentless pursuit of what he concedes now was a deadly mistake. The execution of an innocent man.

"I'm probably the prosecutor responsible for the execution of the first innocent man in Texas," says the former San Antonio district attorney, and despite the gravity of the words, there is a touch of humor in the comment. Ironic -- almost literally gallows -- humor.

Because Millsap knows he isn't the first or only prosecutor who presided over the execution of an innocent man. He is simply the only prosecutor willing to admit it.

Not that Texas, which has executed more than 300 men and women since 1976, is ready to admit it killed an innocent man. It still holds with President Bush's comment, when he was governor, that Texas has never put an innocent man to death.

Millsap, 55, came to New Jersey to testify before the state Commission to Study the Death Penalty. He told the commissioners, who finish their work next week, they should recommend an end to the death penalty in New Jersey.

This state hasn't executed anyone in 43 years, but the penalty is still on the books and nine people are on death row.

Millsap says he has come to oppose the death penalty on what he calls "instrumentalist" grounds. He is not, he says, "morally" opposed to it.

"We have to be able to guarantee that there will be no mistakes in a capital case," he says. "Because we are dealing with a system run by imperfect human beings, we can't make that guarantee. It's a system that cannot be fixed."

The Ruben Cantu Case & Investigation

Once again Lise Olsen of the Houston Chronicle and Maro Robbins of the San Antonio Express-News have teamed up for another story on Ruben Cantu's case.  He is the likely innocent executed by Texas in 1993.

The Chronicle version is here, the Express-News here.  There are slight variations in the lower paragraphs of the stories.

A private investigator searching for proof that might exonerate a San Antonio man executed 13 years ago gave nearly $2,000 in cash, meals and small gifts to key witnesses who say the man was innocent.

Most of the money, $1,496, was directed toward Juan Moreno, the shooting victim whose testimony almost single-handedly convicted Ruben Cantu in 1985 and whose recantation is the centerpiece of a campaign to clear Cantu's name.

Moreno and his wife were compensated primarily for lost wages when they missed work to meet with the investigator, who was working with the NAACP Legal Defense and Educational Fund.

Witness compensation is hardly unprecedented and, while some experts say these payments fell well within ethical boundaries, others disagree. At issue, however, is whether even permissible payments can affect witness credibility.

And:

Texas rules of legal ethics allow attorneys and investigators to compensate witnesses for time at trials and depositions. Some experts think Moreno's compensation adheres to the spirit of the rules.

Robert Schuwerk, a University of Houston law professor, said paying someone too much might sway a witness' opinion, but dragging them away from work might make them too angry to cooperate.

"Basically, the idea of paying them what they lost is to come as close as humanly possible to leaving them neutral," said Schuwerk, co-author of the Handbook of Texas Lawyer and Judicial Ethics.

The Chronicle's original series, "Death and Doubt," reported by Olsen is here.  Earlier coverage of the Cantu case is here.

Ruben Cantu - DA Remains as Investigator

Maro Robbins reports that the sparring continues into whether or not the Bexar County District Attorney's office can investigate the conviction and execution of Ruben Cantu, a likely innocent man executed by Texas.  Robbins has stories in both Hearst-owned papers. The Houston Chronicle story is here. 

The argument over whether the Bexar County district attorney should be disqualified from her investigation of a possible wrongful execution moved Wednesday behind the closed doors of a judge's chamber.

New opinions, submitted in writing to the judge, fueled the debate this time.

A staff attorney who advises the judges concluded District Attorney Susan Reed did indeed have a conflict of interest. A judge on the state's highest criminal court said Reed should be barred from the investigation. In contrast, the dean of St. Mary's law school said the DA was merely doing her job.

In the end, State District Judge Mary Roman decided the DA would continue to investigate claims that a San Antonio man, Ruben Cantu, was executed in 1993 for a robbery and murder he didn't commit.

Reed's impartiality has been challenged repeatedly because in her prior job as a judge she ruled against Cantu in one of his appeals and set his execution date — tasks she and her defenders characterize as administrative, not judicial.

The San Antonio Express-News article is here.

Barbara Paulissen, a staff attorney for the district judges, advised Roman that she believed the district attorney's office had a conflict of interest.

    

But Paulissen added that Reed could be disqualified only if the conflict of interest amounted to a due process violation — in other words, if evidence showed a special prosecutor would have conducted a more impartial investigation.

    

Prosecutors said Paulissen misapplied standards that govern civil, not criminal, cases. In response, they cited an analysis by Bill Piatt, dean of St. Mary's law school.

    

Piatt, in contrast to 22 ethics experts who months ago signed a letter saying the district attorney had a conflict, concluded that Reed's handling of the investigation was legal and ethical.

    

       Roman's own conclusions on that question are unclear.    

    

Keith Hampton, attorney for the witness Garza, said in one meeting Roman declared she saw a conflict, but wasn't sure it required taking the case from prosecutors.

Earlier coverage is here.

 

More Criticism of DA in Cantu Probe

The Houston Chronicle this morning has an editorial, "Mistrust."  LINK

In order to determine whether the state might have executed an innocent man, Texas needs a clear-eyed, objective investigation into the circumstances surrounding the conviction and capital punishment of Ruben Cantu in 1993. When Texas' highest court for criminal matters declined to halt the tainted, conflict-burdened investigation, it provided only more uncertainty.

The facts in the Cantu case are troubling. Convicted of a 1984 robbery in which one victim was killed and the other wounded, Cantu's execution is clouded by three witnesses' recent claims of Cantu's innocence. One witness is the surviving shooting victim.

The integrity of the criminal justice system depends on a thorough vetting of the evidence, old and new, to determine the truth of those disturbing claims. What's more unsettling, this investigation is being undertaken by the woman who, as a state district judge, reviewed one of Cantu's appeals and signed his death warrant. The court's decision, predictably supportive of the prosecution regardless of the facts, allows Bexar County District Attorney Susan Reed to roll forward with an investigation that is tainted by her clear conflict of interest.

Faces of Wrongful Conviction

Prior to the May server crash, this site had a number of posts about and from the Faces of Wrongful Conviction conference held at UCLA in April, where I moderated a panel discussion on clemency. 

Conference sponsors have now posted extensive video links on the conference website.  LINK

There is a good deal of discussion of the Ruben Cantu case during the two-part workshop, Executing the Innocent, featuring former Bexar County District Attorney Sam Millsap - the man who authorized the capital prosecution of Cantu.

Thanks to Death Penalty Focus for announcing the video availability.

Bexar County Remains in Charge of Cantu Investigation

The Texas Court of Criminal Appeals has rejected an appeal to appoint a special prosecutor in the investigation of the conviction and execution of Ruben Cantu, leaving the probe in the San Antonio District Attorney's office.  The Houston Chronicle, which broke the Cantu story last year, and the San Antonio Express-News have another team article today on the Court's ruling.  The Chronicle story is here.  The Express-News report is here.

The case of Cantu, executed in 1993, has attracted intense scrutiny since last year when three witnesses — including the shooting victim who survived the robbery — publicly claimed Cantu was condemned for a crime he didn't commit.

Reed reopened the case, but in her previous job as a judge she had reviewed one of Cantu's appeals and set his execution date.

This history quickly became the focus of a courtroom fight between the district attorney and Cantu's convicted co-defendant, David Garza.

Garza, who claims Cantu was innocent, initially gave investigators a sworn statement, but he was held in contempt of court and threatened with incarceration earlier this month after he refused to answer additional questions in front of a grand jury.

Garza believed the district attorney had a conflict of interest. His distrust only intensified after two of her top investigators were recorded on a public police phone line calling Garza a "bastard" and declaring that all the witnesses were "lying."

An AP story, via the Dallas Morning News, is here.

Where Is Justice With Innocent on Death Row

That's the title of Pulitzer Prize winning syndicated columnist Leonard Pitts' latest, via his home paper, the Miami Herald.  Pitts refers to the Ruben Cantu case and looks at a death row inmate's case in Ohio.  LINK

So I read in the paper where another man is about to be lied to death.

The first such story I am aware of was published last year in the Houston Chronicle. It concerned a street punk named Ruben Cantu, who was executed in 1993 for shooting two men, killing one. Cantu was sentenced based on the word of a single witness, the shooting survivor. That man now says it wasn't Cantu who shot him and that he was pressured to say otherwise by police. The Chronicle concluded that Cantu almost certainly did not commit the crime for which he was killed.

Ruben Cantu, meet Tyrone Noling. Noling is a resident of Death Row at Ohio State Penitentiary whose story was told last week by the Cleveland Plain Dealer. Noling, a petty thief, was convicted of the 1990 murder of an elderly couple. The case against him was based on testimony from three members of his gang who told the court Noling forced his way into the home of Bearnhardt and Cora Hartig and shot them to death.

All three now say they were lying, two in exchange for lesser charges and a third in exchange for immunity. They say they were coached and coerced by Ron Craig, an investigator for the prosecutor's office. For instance, Butch Wolcott, the man who received immunity, could not describe the murder scene until Craig took him there. Wolcott told the Plain Dealer the investigator also gave him access to the evidence file.

More information on the Noling case can be found at the Ohio Death Penalty Information blog.  LINK

Good DA Wrong For Cantu Probe

That's the title of Houston Chronicle columnist Rick Casey's take today; that Bexar County District Attorney Susan Reed should not be leading the investigation into whether Texas executed an innocent in Ruben Cantu.  Casey speaks with knowledge and authority.  Before moving to Houston, he was a long-time columnist at the San Antonio Express-News.  LINK

I could fill this column with examples of her office's tough, creative prosecutions and, despite her strong Republican beliefs (she flew to Florida in 2000 to help seal President Bush's victory), her depoliticization of the office.

And I think her handling of the Cantu case demonstrates why no district attorney should be given the task of determining whether someone was executed for a crime he didn't commit.

Reed volunteered to investigate whether one of her predecessors persuaded a jury to execute the wrong man.

She didn't have to. The Chicago Tribune has raised very serious doubts about the guilt of men in Corsicana and in Corpus Christi who were executed. Yet neither DA in those jurisdictions has publicly expressed any interest in investigating.

Yet the way Reed has handled the case indicates that part of the reason she should not be conducting the investigation is precisely because she is 100 percent red-blooded American prosecutor.

Upon learning that the only eyewitness in the case (other than an accomplice in the robbery) is now saying that under pressure by police he wrongly identified Cantu as the robber who shot him and murdered his companion, Reed raised the possibility of charging the witness with murder by perjury.

I told you she was tough and creative.

That's not an unreasonable reaction from a prosecutor.

She made a rational argument that the witness wasn't tortured and had plenty of time between making the initial identification and testifying at trial to gain some courage, and even more time before the execution.

But that quintessential prosecutor's reaction immediately poisoned the investigation. Lawyers for the witness, Juan Moreno, would arguably commit malpractice if they let Moreno talk to investigators without a grant of immunity.

Special Prosecutor Sought in Execution Inquiry

That's the title of an article in today's Houston Chronicle on the Ruben Cantu case.  The article is co-authored by Lise Olsen, the journalist who broke the story that Texas executed a likely innocent in 1989.  Serious questions of innocence have been raised recently about two other Texas executions.  LINK

The Texas Court of Criminal Appeals has been asked to halt the Bexar County district attorney's politically charged investigation into a possible wrongful execution and to name a special prosecutor to fairly examine claims that Ruben Cantu was innocent when he was put to death in 1993.

In a petition to the court filed Wednesday, Cantu's convicted accomplice in the 1984 robbery-murder claims District Attorney Susan Reed is running a "sham investigation" because she set Cantu's execution date when she was judge and because her top investigators have demonstrated bias by referring to witnesses as "bastards" and liars in recorded phone calls.

"Reed is not impartial but conflicted and her refusal to recuse herself has so marred the investigation that the public will have no confidence in the integrity of the results," the petition filed on behalf of David Garza claims.

First Assistant District Attorney Cliff Herberg did not return calls for comment about Garza's appeal on Wednesday. But Herberg has previously said the DA's investigation will be thorough and fair and that a special prosecutor would be less effective.

Questions Should Halt Death Penalty

That's the title of an OpEd in the San Antonio Express-News by Dave Atwood, founder of the Texas Coalition to Abolish the Death Penalty.  LINK

During the past year, three men have risen from the grave in Texas and said they were innocent of the crime for which they were put to death: Carlos De Luna, executed in 1989; Ruben Cantu, executed in 2003; and Cameron Todd Willingham, executed in 2004.

Questions of Cantu's innocence were the result of investigative reporting by the Houston Chronicle, while questions of innocence in the De Luna and Willingham cases were the result of investigative reporting by the Chicago Tribune.

These claims of innocence are a bitter pill for Texas politicians who are strong supporters of the death penalty. They claim the Texas death penalty system works perfectly fine as opposed to Illinois, where a commission recommended 85 improvements to its criminal justice system after a number of innocent people were discovered on its death row. Because of concern with the fallibility of the Illinois system, Gov. George Ryan declared a moratorium on executions, pardoned several men and commuted to life the sentences of the remaining people on death row before he left office.

You can rest assured that such bold action has never been contemplated in Texas, which prides itself on the efficiency of its execution machinery. In fact, Texas cannot find the wherewithal to conduct a thorough investigation when a case of possible innocence is revealed. After all, such a study might conclude an innocent person has been executed and the system isn't so perfect after all.

More on DeLuna

The Dallas Morning News has an editorial today, Justice Without Doubt: "Questionable death cases call for review."  It reviews the Chicago Tribune reporting on the Carlos DeLuna case and the need for a proper state investigation. LINK

Yet, as in other recent cases, the state is impotent in the matter because it lacks an apparatus to delve into questions of fatal error. And the Nueces County district attorney's office has indicated no interest in re-examining the case. This sense of cold indifference is a disservice to Texans who care about the quality of justice in each of 368 executions carried out in their names since 1982.

The facts of the De Luna case make a powerful argument for action.

And:

The De Luna case is troubling enough taken alone, but it must be considered alongside two other capital murder convictions brought into question in recent months:

•That of Cameron Todd Willingham, executed in 2004 for the arson-slayings of his three young children in their Corsicana home. Expert testimony in his prosecution has since been discredited as based on outmoded forensic science. Local officials nevertheless maintained they got the right man.

•Ruben Cantu, executed in 1993 for the robbery-slaying of a construction worker in San Antonio based solely on eyewitness testimony. The eyewitness recanted last year, saying police leaned on him hard to finger Mr. Cantu as the killer.

Also, Houston Chronicle columnist Rick Casey looks at the DeLuna case today.  LINK

As the San Antonio District Attorney's Office continues to investigate the possibility that Texas wrongfully executed a man there in the wake of dogged investigative work by my colleague Lise Olsen, here comes the Chicago Tribune with a compelling case that the same thing may have happened in Corpus Christi.

Another Innocent Executed in Texas?

The Chicago Tribune is promoting a major, three-part series scheduled to run this weekend on another likely innocent person executed by Texas.  LINK  A brief video is available for viewing at the Tribune site.

On December 7, 1989, Carlos De Luna was executed for murder.  But a Tribune investigation has uncovered evidence he was not the killer:

    Part 1  Open-and-shut case unravels.
    Part 2  Coming Monday.  Phantom or murderer?
    Part 3  Coming Tuesday.  What the judge and jury never heard.

ABC News' Nightline is also expected to report on the case in tonight's broadcast.  Check your local listings for time.  Nightline generally airs following the 11:00 pm (EDT)/10:00 pm (CDT) local news.

In 2004, a Tribune series on junk science concluded that Todd Willingham, executed earlier that year, had been convicted on the basis of discredited arson analysis.  A recent report by the Innocence Project, conducted by a team of leading arson experts, supports the Tribune story.  The Innocence Project has asked the newly created Texas Forensic Science Commission to investigate.  Original Tribune reporting on the Willingham case is here.  The Innocence Project Report on the Willingham case is here.

In November 2005, the Houston Chronicle reported on the  case of Ruben Cantu, executed in 1993.  The Chronicle reported that the person who identified Cantu said that he only did so because he believed the police wanted him to select Cantu.  Sam Millsap, the Bexar County District Attorney when Cantu was prosecuted, has said that he has no reason to doubt the recantation, and regrets that a death sentence was sought in the case. 

In recent months there has been widespread criticism of an investigation conducted by the current district attorney due to conflict of interest.  The seemingly stalled investigation has also led to calls for an independent investigation. The Chronicle reporting on the Cantu case is here.

To date, Texas has executed 366 men and women since 1982, more than 35% of all executions in America since reintroduction of the death penalty in the 1970's.  Many of those executions were carried out in spite of significant questions about the reliability of convictions and/or sentencing.  The DeLuna case will only strengthen demands for a moratorium on executions and a proper review of Texas' application of capital punishment.

In 2005, the State Bar of Texas endorsed a legislative proposal to create a state-sponsored death penalty study commission.  The legislation was sponsored in the House by State Rep. Elliott Naishtat of Austin, and in the Senate by State Senator Eliot Shapleigh of El Paso.

The Abilene Reporter-News, Austin American-Statesman, Bryan College Station Eagle, Dallas Morning News, Fort Worth Star-Telegram, El Paso Times, Houston Chronicle, San Antonio Express-News, Victoria Advocate and Wichita Falls Times Record News have editorially endorsed moratorium proposals and reforms.

After formal studies, both the Christian Life Commission of the Baptist General Convention of Texas and the League of Women Voters of Texas called for a moratorium and reforms. The Travis County Commissioners’ Court has also adopted a resolution calling for a moratorium on executions.

The Fall 2004 Scripps Howard Texas Poll showed that 70% of respondents believed that Texas had executed innocent people.