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Monday, November 21, 2005

Who needs David Gale when you've got Ruben Cantu?

Last week, I rented a very good movie some of you may have seen, The Life of David Gale. It tells the (fictional) story of a Harvard-educated philosophy professor in Austin who is a leading anti-death penalty activist; after a series of unusual and unfortunate events, Gale (played by Kevin Spacey) finds himself on death row in Texas for having allegedly killed a fellow activist.  Just prior to his scheduled execution, Gale explains his story for the first time to a magazine journalist (played by Kate Winslet).  The force of Gale's story draws from his innocence and his ability to realize that, at some point, there's a political need to have an innocent person executed in order to prove that the death penalty system is fundamentally flawed.  It's not enough, in other words, to prove to the Governor that the system has detected errors prior to the scheduled executions; rather, there must be an innocent stiff lumped over in the chair to prove that the system doesn't work.  Gale is prepared to be, in service to the cause, that innocent stiff. 

It bears mention, especially as a mostly anti-death penalty writer myself, that the screenplay of Gale has a historical basis.  While there have been many incidents of error in the modern "machinery of death" since Gregg v. Georgia reinstated the permissibility of the death penalty, it has been virtually impossible to point to an innocent person who actually has been executed in the "modern period."  (Bedau and Radelet argued that, prior to the modern period, there had been miscarriages of justice where the wrong person was executed but they and others have not been able to show a wrongly executed person in modern times.)  The Death Penalty Information Center website, however, keeps a running tally of those who have been freed from death row--and the number currently stands at 122.

Fast forward to Sunday's Houston Chronicle, which narrates the true-life story of Ruben Cantu.  Cantu was executed a dozen years ago, at the age of 26, though he was only 17 at the time of the crime for which he was convicted.  According to Lise Olsen, the piece's author, the prosecutor, the defense attorney, the sole eyewitness, and the head juror now think Cantu was wrongly executed, the result of undue police pressure exerted on Moreno, the surviving witness of the violence of which Cantu was accused. 

Cantu's long-silent co-defendant, David Garza, just 15 when the two boys allegedly committed a murder-robbery together, has signed a sworn affidavit saying he allowed his friend to be falsely accused, though Cantu wasn't with him the night of the killing.  And the lone eyewitness, the man who survived the shooting, has recanted. He told the Chronicle he's 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, an illegal immigrant at the time of the shooting, said his damning in-court identification was based on his fear of authorities and police interest in Cantu.

"We did the best we could with the information we had, but with a little extra work, a little extra effort, maybe we'd have gotten the right information," said Miriam Ward, forewoman of the jury that convicted Cantu. "The bottom line is, an innocent person was put to death for it. We all have our finger in that."  Sam Millsap Jr., the former Bexar County district attorney who made the decision to charge Cantu with capital murder, says 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," said Millsap, now in private practice. "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."

To be sure, Cantu was no boy scout.  He was involved with drugs and car thefts and even in shooting an off-duty police officer for which no crime was charged because of the murky circumstances.  Still, there was no physical evidence, no confession, and no alternative evidence -- aside from Moreno's now discredited testimony -- to link Cantu to the crime for which he was convicted.  All the evidence points away from him today. Thus, Ruben Cantu is dead.  And, in all likelihood, innocent.

Time to spread the word.  If the Chronicle is right, we have found our "David Gale." And this one was no willing martyr. 

(Hat tip: Talkleft, whose commentators clearly need to read this article.)

UPDATE: As always, Doug Berman's got valuable followup and buildup to the story over here.  Also, Lise Olsen has another article in today's Chronicle that describes Cantu's co-defendant's efforts to clear Cantu's name, and to implicate the real perpetrator.  Olsen's going to get short-listed for a Pulitzer I bet.  But the burden's on bloggers and MSM to help spread the news and continue thinking about its implications.

Posted by Dan Markel on November 21, 2005 at 12:30 AM in Criminal Law, Dan Markel | Permalink

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» Texecution: Was He Innocent? from TalkLeft: The Politics of Crime
Bump and update: Dont miss part two and three of the Houston Chronicle series on Ruben Cantu. Also, Instapundit weighs in with some criticism for the prosecutor in the case and the system in general. Law Prof Dan Markel has... [Read More]

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I recommend seeking out Roger Ebert's remarkable review of "The Life of David Gale," where Ebert, an opponent of capital punishment himself (I gather), argues that the movie "supports [the death penalty] and hopes to discredit the opponents of the penalty as unprincipled fraudsters."

Posted by: EN | Nov 21, 2005 1:21:41 AM

Ebert's got a silly response if you ask me.

Posted by: Dan Markel | Nov 21, 2005 8:49:17 AM

From the Houston Chronicle story:

"Garza said Cantu also knew the truth about who had done the killing because Garza confided in him two weeks after the murder. Still, Cantu was unwilling to betray friends even to save his own life, Garza said."

Sounds pretty incredible to me (and I mean incredible in the sense of "not credible" rather than "amazing"). So Cantu voluntarily goes to the chair so as to avoid ratting out his friend? And this is supposed to show the problem with the death penalty?

Posted by: Charles P. Bronham | Nov 21, 2005 9:10:19 AM

Thanks Dan, for writing about the case of Ruben Cantu. The case against Cantu for the shooting of Gomez and Moreno (the surviving eye witness) was closed in 1984 for the lack of evidence. There were no fingerprints or ballistic evidence to connect Cantu to the shooting. The general description of the teenage shooters could have applied to any two boys of that age in the surrounding neighborhood.

The case was re-opened in 1985, when Ruben Cantu shot at an off duty police officer Joe De La Luz, in a bar room brawl. It was after this incident that San Antonio police officers repeatedly showed Cantu's picture to Moreno who said, "The police were sure it was (Cantu) because he had hurt a police officer. They told me they were certain it was him, and that's why I testified.... That was bad to blame someone that was not there."

It is a valid exercise to examine the past record of suspected criminals and as Dan points out, Cantu was no "boy scout" - a description that would apply to his brothers and almost all the young males in the neighborhood where Cantu lived. But in a case where there is doubt, it may be equally important to examine the motives of the police, especially one such as De La Luz, whose own history was hardly pristine (read about him in the Houston Chronicle story). De La Luz was the star witness who helped put Cantu on death row. In an interview with the Chronicle twenty years later, he said that the best thing about the experience is "that I'm alive and he's (Canutu)dead."

Houston Chronicle plans to go back and examine more Texas executions. I hope Prawfs Blawg will keep its eyes open for the ensuing reports.

Posted by: Ruchira Paul | Nov 21, 2005 11:34:10 AM

It is really heartening to see so many bloggers picking up the Ruben Cantu story today. I think this is the strongest evidence to date of an innocent person being executed in what we call the modern era -- since executions resumed in the 1970s.

David Elliot
Abolish the Death Penalty
http://www.deathpenaltyusa.blogspot.com

Posted by: David Elliot | Nov 21, 2005 4:02:47 PM

Saying that Cantu "was no Boy Scout" and that "almost all the young males in the neighborhood where he lived" would fit that description is more than a little dishonest. Brawls and some petty drug dealing, sure, but most young men do not go shooting at people in bars. It gives me no pleasure to say it, but removing this guy from the streets permanently was probably a net benefit to society. I'm not saying it was the right thing to do but it doesn't repudiate the whole enterprise for me.

Posted by: the snob | Nov 23, 2005 10:06:31 AM

"Sounds pretty incredible to me (and I mean incredible in the sense of "not credible" rather than "amazing"). So Cantu voluntarily goes to the chair so as to avoid ratting out his friend? And this is supposed to show the problem with the death penalty?"

Indeed. Its ridiculous. And his friend, who could not have been prosecuted further, never bothers to come forward and say, "ummm.., no, Ruben was not at the scene of the crime." Rrriiiggghhttt.

I'm assuming that Cantu is innocent in the same way that Mumia Abu Jamal is innocent.

Posted by: Brian Carnell | Nov 23, 2005 11:31:15 AM

Snob, I can't tell to whom you are addressing your claim of dishonesty. I didn't make a claim about the relative merits of Cantu to others living in the neighborhood. I did say that Cantu was not a boy scout, but his assault on the offduty cop has little relevance (in my mind) to whether he should be executed for a crime he seems not to have committed. Besides, if the shooting of the cop occurred under circumstances that the DA's office thought would secure a conviction, don't you think the DA's office would have tried?

Posted by: Dan Markel | Nov 23, 2005 12:28:47 PM

Dan, I, not you, said that most boys in Ruben Cantu's neighborhood fit the description of un-"boy scouts". Police Officer De La Luz (no boy scout himself) had a habit of getting into bar brawls.

"Cantu's death sentence resulted in part from a later, unrelated incident in which he shot an armed off-duty police officer during a quarrel at a bar. That officer provided testimony that his shooting was unprovoked. Cantu claimed both had been drinking and he was defending himself. As the Chronicle investigation documented, the officer had previous suspensions for brawling in a bar and abusing a prisoner. Although he was never charged in that shooting, Cantu was arrested soon after and tried for the robbery-murder." ... Editorial, today's Houston Chronicle.

Posted by: Ruchira Paul | Nov 23, 2005 2:37:29 PM

I ran across another article about a person in Texas who may have been innocent and executed. His name was Cameron Willingham and he was executed in Texas in 2004. The article was in The Chicago Tribune.

I think whether you are for or against the death penalty, there is a developing consensus that the way it is administered in Texas puts innocent people at risk of execution.

Here is a link to send an email to the Texas Legislature and Governor Perry of Texas urging them to enact a moratorium on executions, before any more innocent people are executed.

Posted by: Sarah Samuels | Nov 23, 2005 6:34:55 PM

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