Joette Katz Authors Law.com Article Entitled "Texas Should Stop and Think Before Executing Ivan Cantu"

Texas death row inmate Ivan Cantu could die today. He deserves to know why the Texas Court of Criminal Appeals would summarily reject a petition for a writ of habeas corpus, in light of the considerable evidence putting his conviction into question. Consider the history:

On Tuesday, the Texas Court of Criminal Appeals denied Cantu’s request to stay his execution and an application to allow a court to rule on new evidence in the murder of his cousin, James Mosqueda and Mosqueda’s fiancée, Amy Kitchens, in the course of a robbery. Cantu was convicted and sentenced to death in 2001. Petitions from Cantu for writs of habeas corpus were denied in 2004 and 2006.

Cantu’s most recent application for a writ of habeas corpus was filed on April 19, 2023, claiming two of the state’s witnesses gave false information. In its response, the court said “We have reviewed the subsequent application and find that Applicant has failed to make a prima facie showing that he satisfies the requirements of Article 11.071, § 5(a). Accordingly, we dismiss the subsequent application as an abuse of the writ without considering the merits of the claims.”

That’s it. That’s what the appeals court in Texas stated as the basis for its decision that will allow Ivan Cantu to be executed later today. And here’s what we know was presented to the court:

During Cantu’s trial, the state pointed to bloody jeans found in Cantu’s kitchen and an allegedly stolen Rolex watch as proof that he murdered his cousin and his cousin’s fiancée. Amy Boettcher, Cantu’s fiancée, testified that Cantu had committed the murders, and took her to the crime scene, before their trip to Arkansas to visit her family. Boettcher also testified that she had disposed of Cantu’s bloody jeans in a trash can inside his kitchen shortly after the murders, and that Cantu had thrown a Rolex watch belonging to Mosqueda out of a car window as the couple was driving to downtown Dallas to a club shortly after the murders. Additionally, police found the bloody pants, matching the victims’ DNA, in Cantu’s trash can.

In the years following the trial a signed affidavit from an officer who performed a wellness check on Cantu, requested by Cantu’s mother after she learned his cousin was killed, stated that the officer did not see bloody clothes in the trash can. Cantu and Boettcher were reportedly out of state at the time of the wellness check, suggesting that this evidence is proof that someone else placed the clothes in Cantu’s home to frame him for the murders.

Additionally, Cantu’s legal team discovered in 2019 that police had recovered a Rolex watch, finding it in Mosqueda’s home, and returned it to his family shortly after the murder. Also Boettcher’s brother, Jeff Boettcher, testified before the jury that Cantu had told him about the murders in advance and recruited him to clean up afterward, but after Amy’s death in 2021, Jeff called Collin County investigators to recant his testimony. In a statement that was videotaped, Jeff admitted that at the time of the trial, he was a frequent drug user, he was out of state at the time of the murders and that his testimony wasn’t reliable.

Based on this newly discovered evidence Cantu filed a subsequent writ of habeas corpus claiming he was wrongfully convicted with false testimony from the Boettchers. As reported above, the Texas Court of Criminal Appeals, without considering its merits, dismissed his case on the grounds that he had failed to meet the requirements necessary for a review but did not expand on its reasoning. There is other evidence that highlights issues with the original investigation, but even the skeletal recitation I just provided should have been sufficient for the Texas court to at least explain why it was rejecting Cantu’s multiple due process claimed violations.

The per curiam opinion cites the statutory provision that Cantu failed to satisfy by a prima facie showing:

“a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071, 37.0711, or 37.072.”

I can only speculate about the opinion’s basis. Was all the evidence amassed undermining the conviction from 2019 to 2021 available and previously considered in another separate and distinct proceeding or did the court conclude as a matter of law that all rational jurors would have found Cantu guilty beyond a reasonable doubt even with this newly discovered evidence? Sadly, we don’t know.

Tragically, Cantu is about to be another Texas statistic, as if more are needed. According to the Death Penalty information Center, Texas has executed 586 people since 1976, more than any other state. Oklahoma is second, at 123. Texas claims the second-greatest number of executions per 100,000 residents in the country at roughly 1.9; only Oklahoma claims more, at 3.0 executions per 100,000. What’s one more?

Copyright 2024. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune and Law.com [https://www.law.com/ctlawtribune/2024/02/28/texas-should-stop-and-think-before-executing-ivan-cantu/], reprinted by permission.