Executing innocent people (Part 1)

In 1975, I was asked to prepare a report for a member of Canada’s parliament about a case where a man was hanged for the murder of a five-year-old girl many years earlier. I found court records showing that the man’s lawyer had been declared insane prior to and during the man’s trial and his two appeals that followed. I further learned from the aunt of the murdered girl that the police told her family years later that the wrong man was hanged. They said that the real killer was now in a mental hospital and because he was insane at the time he committed the murder, they on the advice of the prosecutor didn’t charge him with the crime.

What evidence did the police have initially that was used to convict the innocent man? He confessed. Why? He claimed that the police beat him and finally he confessed to stop the beatings. Did the judge believe him? Of course not. The judge didn’t believe that the police would do such a horrible thing to him just to get a confession. We all know that such things really happened in those days. A police officer friend of mine told me of many physical abuses that were brought upon prisoners to get confessions.

Another member of Parliament quoted from another report of mine that was sent to every member of Parliament  when he addressed his fellow members by saying, “Mister Speaker. (all statements made in parliament are addressed to the speaker of the House) “In the report I received from Mister Dahn Batchelor, he said in part, ‘There is nothing worse than executing an innocent man for a crime he didn’t commit. unquote.” The following year, the death penalty in Canada was abolished by the House of Commons and the Senate. 

In April 2015, the Death Penalty Information Center in the United States said that there had been 152 exonerations of prisoners on death row in the United States since 1973. Think about this. If that many innocent persons were executed for crimes they didn’t commit, it would result in shameful and horrendous abuses of the justice system. I am also convinced that in all likelihood, many more innocent persons were executed during those years.

Texas has executed more people than any other state, beginning in 1982 in which as many as 527 people have been executed in Texas up to this year. Previously, the State has used a variety of execution methods such as hanging from 1924 to 1964 then electrocution from 1964 to 1992 when lethal injection then became the method of execution. Most executions were for murder.  Charles Brooks who was executed in Texas in 1992 was the first person to be judicially executed by lethal injection in the world, and the first African American to be executed in the United States since 1967.          

The only crime for which the death penalty can be assessed in Texas is capital murder. The Texas Penal Code specifically defines capital murder as murder which involves one or more of the following aggravating factors: murder of an on-duty officer or firefighter, in the course of committing or attempting to commit a certain felony offense, murder for remuneration, murder while escaping or attempting to escape a penal institution while incarcerated, murder of an individual under ten years of age, or murder of a person in retaliation for, or on account of, the service or status of the other person such as a judge or justice of any court.                                                                                          

I am now going to tell you about a man that a great many people believe was really innocent of murder when he was executed in Texas on August 24, 1993, at 22 minutes after midnight, at the age of 26.  Ruben Cantu died by lethal injection, becoming the fifth juvenile offender to be executed by Texas. 

 Ruben Cantu grew up with his mother and father, until the age of 14, when the couple split up, with Ruben's mother moving 20 miles (30 km) away, and Ruben and his father continuing to live in a trailer in a crime-ridden south San Antonio barrio. The neighborhood was home to a loose band of tough kids called the Grey Eagles, of which Cantu became a leader, despite being rather small and in special-ed classes at school. By age 15, he was stealing cars for an organized auto theft ring, often spending days at a time driving stolen cars to Mexico for cash. At a time when the San Antonio Police Department was embroiled in scandal, with vigilantes and drug-dealing officers well known to the community. Cantu was stealing cars and dodging the police. His older brothers had been arrested on drug and theft charges, but despite several run-ins with the police, Ruben was never convicted of anything before the November 1984 crime that led to his execution.

The prosecution's case at the trial that convicted Ruben Cantu is summarized as follows: On the night of November 8, 1984, at approximately 11:30 p.m., Ruben Cantu (age 17 at the time) and his friend David Garza ( age 15), broke into a vacant San Antonio house under construction at 605 Briggs Street, and robbed two Hispanic males at gunpoint. The two victims, Pedro Gomez (25 or 35) and Juan Moreno (19), had been workmen sleeping on floor mattresses at a construction site, guarding against burglary, as a water heater had been recently stolen from the work site. The two victims were sleeping in their work clothes, with their pockets full of their cash earnings at the time of the robbery. Cantu and Garza were carrying a rifle, which they used to rob the two men of their wristwatches. As they tried to take their cash, they were interrupted by Gomez's attempt to retrieve a pistol hidden under his mattress. Gomez was shot at least nine times by the boys' rifle, dying instantly, and Moreno was also shot as many as nine times by the same rifle. Thinking they had killed both men, the two teens then fled the scene. Juan Moreno survived the attack, and was able to leave the house and call for help shortly after the event, though he lost one lung, one kidney, and part of his stomach.

Now the question that was on the jury’s mind was this; “Was Rubin Cantu one of the robbers that killed Pedro Gomez?

Short on leads other than Moreno's description of two Latinos aged roughly 14 and 19, a neighborhood beat officer passed along a rumor to Homicide detectives from the halls of South San Antonio High School, where Cantu was in ninth grade. A shop teacher reported that three kids had been involved in the robbery and murder and that some students were saying that Cantu had done the killing.

Questioned just before his arrest, Garza (one of the robbers) identified Cantu by saying; “I saw Ruben come running out of the house.” That statement alone wouldn’t be enough to convict Cantu of murder.

The key trial witness however, was Juan Moreno, the survivor of the shooting who repeatedly identified Ruben Cantu in court as the shooter. That would be sufficient evidence to get a conviction if Moreno was telling the truth.

Alas, after Cantu was convicted of capital murder and executed, both Moreno and Garza recanted their stories. The question that was on everyone’s minds after these two men recanted their stories was; “Did they lie under oath in court or where they lying after Cantu was executed?” 

According to Juan Moreno, and consistent with police records, he was visited by police in the hospital the day after the shooting. But, due to the severity of his wounds, he was unable to speak and could barely move. Five days later, in a second interview, Moreno was shown a number of photos. Cantu's photo was not included and Moreno did not identify any of the people shown in the photos. On December 16, detectives visited Moreno a third time and showed him another array of five photos, including one of Ruben Cantu, who lived across the street from Moreno's job site where the crime occurred. He did not identify Ruben or anyone else from the photos shown to him during that police interview.

That is powerful evidence that should have cleared Cantu of any involvement in the shooting or even in the robbery.

 The case went cold, and no suspect was arrested. About four months after the robbery-murder, Cantu shot Joe De La Luz, an off-duty, plainclothes police officer, at the Scabaroo Lounge, a bar near Cantu's home. According to Cantu, the officer threatened him by revealing his concealed weapon, thereby provoking fear in Cantu’s mind (who was also armed) to fire his gun at De La Luz whom he did not know was a police officer. According to De La Luz, he was shot four times by Cantu despite (he claimed) no provocation on his part.

A police officer who is not in uniform and pulls out a concealed gun to frighten another person because he is angry is breaking the law and is asking for trouble.  And trouble is what he got. Cantu pulled out his own gun and shot him four times.

The case against Cantu for the barroom shooting had to be dropped, as the police had illegally searched Cantu's home, rendering the case un-prosecutable. Would that make the police angry? Is the Pope Catholic? The answer to both questions is a definite, “Yes.”

Now what do police officers do when they realize that they can’t get a shooter to trial after he shot one of their own? They get even.  There surely can be no doubt in anyone’s mind that the police got even with Cantu for shooting one of their own by forcing a victim of a shooting to perjure himself so that an innocent man would be executed. The mindset of the investigators was—“You shoot a cop, you die.”

In U.S. v. Jannotti, (3d Circuit Court of Appeals. 1982) the court said in part; "There is no crueler tyranny than that which is exercised under cover of law and with the colors of justice.”

Officer De La Luz survived the shooting and a friend of his who worked homicide, Sgt. Bill Ewell, decided to immediately reopen the murder investigation with respect to the murder of Garza and wounding of Moreno.

On the following day, Sgt. Ewell sent an investigator to Juan Moreno a fourth time, this time showing Cantu's photo along with four others. Again, Juan Moreno did not identify Cantu as one of his attackers. But he did provide Cantu's name. Why? I don’t have an answer for you. One day later, a third homicide detective picked up Moreno (an undocumented immigrant from Mexico at the time), drove him to the police station, sat him down and showed him the same group of photos that included Cantu. On that third attempt, Moreno positively identified the photo of Cantu as being one of his attackers.

Now why would Moreno do that when he previously stated that he didn’t recognize Cantu as one of the shooters?  Moreno told the police that he would agree to testify against Cantu as being the shooter.

Doesn’t it seem odd to you that he originally said he didn’t recognize Cantu as being the shooter? If he did recognize him initially when shown Cantu’s photo, surely he would tell the police so that he could get even with the young man who shot him and killed his friend. I know what you are thinking. He didn’t want to squeal on someone who has friends who might retaliate? If that is so, then why wasn’t he afraid to testify against Cantu? The theory about squealing doesn’t really hold water. He lied under oath because his real fear was that he would be deported.

Shortly after being convicted by a jury of first degree murder and sentenced to death, Cantu wrote a note to the San Antonio Chronical saying: "I have been framed in a capital murder case. I was framed because I shot an off-duty police officer named Joe De La Luz.” When a newspaper gets a note like that from a condemned murder, they don’t ignore it. They investigate. In the investigation, they discovered holes in the prosecutor’s case against Cantu.

Moreno, being the lone eyewitness, (the man who survived the shooting) much later recanted his testimony. He told the Chronicle that he was sure that the person who shot him was not Cantu, but he felt pressured by police to identify the boy as the killer. Juan Moreno who was an illegal immigrant at the time of the shooting, said his damning in-court identification was based on his fear of the police and being deported and further, the police had an interest in Cantu.   Moreno said years later that the person who shot him had very curly hair and that he was never shown a photo of the real shooter. Further, David Garza, Cantu's codefendant, has since admitted involvement in the burglary, assault and murder. He says he did go inside the house with another boy, did participate in the robbery, and saw the murder take place, but that his accomplice was not Ruben Cantu. According to Garza, the real murderer was an elementary school friend of Cantu. 

Cantu's long-silent co-defendant, David Garza, just 15 when the two boys allegedly committed a murder-robbery together, years later signed a sworn affidavit saying he allowed his friend to be falsely accused, though Cantu wasn't with him during the night of the killing. So why did he lie in court and say that Cantu was with him during the robbery?  Was he offered a deal that if he testified against Cantu, he would only get twenty years in prison (which he actually got) instead of facing the death penalty?

State officials have always defended themselves with the argument that no executed prisoner has ever been formally proven to have been innocent. That argument, however, may be tested with the new information on the Cantu case.

Sam Millsap, who was the District Attorney presiding over the Cantu case, proclaimed himself a "lifelong supporter of the death penalty" in his commentary published in the San Antonio Express-News in the year 2000. Later in a December 2005 interview with the San Antonio Express-News, Millsap expressed a newfound opposition to capital punishment. In that 2005 story, Millsap, then an attorney in private practice at the time of the interview, says his decision to oppose the death penalty was affirmed, as evidence surfaced that Ruben Cantu was very likely innocent, when prosecuted by Millsap's office, and ultimately executed by the state of Texas.

According to the 2005 Express-News story, Millsap said, “It is troubling to me personally. No decision is more frightening than seeking the death penalty. We owe ourselves certainty on it.” He had that degree of certainty in the 1980s when he was the district attorney, “when I was in my 30s and knew everything. Now there is no way to have that kind of certainty.” He went on to say that if Cantu was innocent, that means the person who committed the murder remains free and that “the misconduct by police officers could be addressed today.”

OK. He finally got smart. But what about the appeal courts and the governor who refused to vacate the conviction and cancel the execution? They screwed up.

On the first round of appeals, (1987) even the Texas Court of Criminal Appeals ruled that the identification process was improperly suggestive, though the court upheld the in-trial identification and did not overturn Cantu's conviction. It said in part; "In the abstract (written testimony) the process of showing Juan several arrays on different occasions, all containing the appellant's photograph is a suggestive procedure. Such procedure tends to highlight a particular defendant since the witness sees the same face repeatedly. Such reoccurrence of one particular face might suggest to the witness that the police think the defendant is the culprit.” unquote.

The policy of the appeal courts was not to acquit based on new evidence that would exonerate the appellant but instead their function was to decide if the appellant got a fair trial. They concluded that he did and subsequently, they refused his appeal.

Unfortunately for Cantu, none of his defense attorneys who represented Cantu during his appeals ever attempted to find Moreno, who they assumed had returned to Mexico. Moreno had moved on but only to another neighborhood in San Antonio. That is incompetency on their part.

Even Texan voters, who are broadly supportive of their state's tough approach to criminal justice ­including the controversial execution of defendants who were minors at the time of the offence ­ have told opinion pollsters they believe some innocent people have been put to death. A great many of them believed that when Cantu was executed, he was one of the innocent persons put to death.

The governor of Texas in 1993, Anne Richards refused to offer clemency to Cantu and have him serve the rest of his life in prison. This woman who was born in 1933, a month before I was born wasn’t in favor of giving clemency to condemned murderers even if the evidence against them was weak. I can envision her saying to her friends about the Cantu execution in the typical Texas drawl. “Ah believe that if you all is convicted of murdah, you is gonna die.” I wish she was alive today to read this article. She died at age 73 on September 13, 2006.

As a matter of interest, there was another man named Cantu who was executed in Texas in 2010. He was convicted of being the leader of a gang of thugs that raped and murdered two teenage girls. Two of Cantu's fellow gang members were put to death earlier, Derrick O'Brien in 2006 and Jose Medellin in 2008. Two other members avoided the death chamber when the U.S. Supreme Court outlawed executing those who were under 18 at the time of their crime. A sixth person convicted in the case was 14 years old at the time of the attack and is serving a 40-year prison term, the maximum sentence for a juvenile murderer in Texas.

The girls were gang raped for more than an hour and forced to perform oral sex. They were kicked, had teeth knocked out and hair pulled out. Their ribs were broken. A red nylon belt was pulled so tightly around Ertman's neck the belt snapped. Shoe laces were used to strangle Pena. They pressed their boots against the necks of their victims to make sure they were dead. Those murderers who were over 17 and who had subjected their victims to such brutality before they were murdered—deserved to die.

I have no qualms whatsoever about murderers being executed so long as the evidence against them is absolute and the trials are conducted fairly.