By: Madison Taylor
Published: October 1, 2024
“I want you all to know that I don’t think that this situation here will bring you closure if it does. If this is what it takes or have any reservations off in your mind, then so be it. This is not going to help you guys and I want you to know from me that it never occurred.”[1] These were some of Ivan Cantu’s last words before he was executed in Texas on Wednesday, February 28, 2024. This was the State’s first execution of the year, and prior to his execution, post-trial evidence raised significant questions about Cantu’s guilt.[2]
In 2001, Cantu was sentenced to death for the murder of his cousin, James Mosqueda, and his cousin’s girlfriend, Amy Kitchen, who were shot to death in their home.[3] The prosecution relied on testimony from Cantu’s fiancée, Amy Boettcher, and her brother, Jeff Boettcher, as well as a pair of bloody jeans found in Cantu’s trash and allegedly stolen jewelry. However, in 2020, by way of an affidavit, a police officer who investigated Cantu’s apartment after the murders said that she did not believe the bloody jeans belonged to Cantu as they were too big and there was no DNA evidence whatsoever found on the jeans. Additionally, in an affidavit, an officer who conducted a welfare check of Cantu’s apartment right after the murders said that there were no bloody clothes in the trash can when she searched it. The bloody clothes were found three days after the murders. At trial, Cantu’s fiancée, Amy, testified that Cantu threw a Rolex belonging to one of the victims out of a car window after the murders. However, the officers who investigated the murders found the victim’s Rolex in the victim’s home and it was returned to the family shortly after the murders. Cantu’s attorneys only learned of this fact in 2019, eighteen years after Cantu was sentenced. In 2021, Amy’s brother Jeff admitted to lying during his testimony in trial that Cantu allegedly recruited him to help him clean up after the murders to protect Amy. Jeff admitted that his testimony was not reliable and that he had frequently used drugs throughout the trial. Jeff only recanted his trial testimony after Amy’s death in 2021.[4]
In 2023, after hearing about the false evidence, the district judge who set Cantu’s execution for April 2023 withdrew the court order for Cantu’s execution.[5] Cantu then filed for habeas corpus in the Texas Court of Criminal Appeals, but the court dismissed his application without considering the merits of his claim.[6] Cantu again applied for habeas relief under 28 U.S.C. § 2444 (finality of determination) eight days before his execution, but the Fifth Circuit Court of Appeals rejected his final claim.[7] The Fifth Circuit held that Cantu’s claims about the newly discovered evidence could have been discovered “years or even decades ago” and that he did not make a prima facie case by clear and convincing evidence that no jury would have found him guilty of the two murders.[8] In its holding, the Fifth Circuit turned a blind eye to Cantu’s numerous attempts to seek relief and instead used Cantu’s last-minute attempt to seek relief against him. The state and the prosecution in Cantu’s original trial knew of the suppressed evidence well before Cantu’s last attempt at relief. This is not a fact unique to Cantu’s case; in fact, it is all too common in death row cases. As long as these practices continue and states continue to uphold the death penalty, innocent people who are wrongly convicted will continue to wrongly be put to death.
The death penalty constitutes cruel and unusual punishment contrary to both the Eighth Amendment and the right to life. Additionally, one of the most common arguments to keep death penalty statutes in place is deterrence.[9] However, studies indicate that the death penalty does not deter homicides.[10] Not only is the death penalty ineffective in deterring crimes such as homicides, but the risk of executing innocent people, such as Cantu, is high. 197 wrongly convicted people have been exonerated from death row since 1973.[11]
The death penalty also makes judicial errors irreversible. In Cantu’s case alone, the trial court relied on faulty forensic evidence and false testimony. Even though he appealed, the appeals process is designed to focus on legal and procedural errors rather than factual issues. And in Cantu’s case, the Fifth Circuit held him to an incredibly high standard to prove that no reasonable jury would have found him guilty. This burden in itself revolves around the factual issues of his case, and he was not given the opportunity to present this in his numerous appeals.
Since 1976, 1,587 people have been executed on death row.[12] Of these people, there are several of them that had strong evidence of their innocence prior to execution.[13] Based on these cases, it is clear that judicial review for death penalty cases is entirely ineffective. Cantu, for example, was not given the opportunity to present the “newly” found evidence of his innocence through an evidentiary hearing.[14] The cases of those sentenced to death due to faulty forensic evidence or false testimony establish that capital punishment as a whole is incredibly flawed. Until the judicial and legislative systems provide increased oversight and scrutiny in these cases, the death penalty will continue to serve as a system to execute innocent people.
There currently exists an alternative to the death penalty: a life sentence. While a life sentence can be viewed as just another death sentence, someone sentenced to life has more opportunity to appeal and plead their innocence. Life sentences can be reversible. However, some proponents are reluctant to abolish the death penalty because it is often used as a bargaining chip to induce defendants to plead guilty in exchange for a lesser sentence.[15] At a minimum, if states are unwilling to abolish their death penalty statutes for reasons such as this, they should exercise clemency or commutation in cases where defendants continue to plead their innocence and exhaust all possible remedies.[16] Regardless of the arguments in support of the death penalty, it is an irreversible miscarriage of justice when potentially innocent people are put to death even in light of new evidence.
[1] Death Row Information: Last Statement of Ivan Cantu, Tex. Dep’t of Crim. J., https://www.tdcj.texas.gov/death_row/dr_info/cantuivanlast.html; William Melhado, Texas Executes Ivan Cantu for Dallas Murders Despite Doubts of His Guilt, The Tex. Trib. (Feb. 28, 2024, 7:00 PM), https://www.texastribune.org/2024/02/28/texas-execution-ivan-cantu/.
[2] Melhado, supra note 1.
[3] Michael Hagerty, Texas Executes Ivan Cantu, Despite Questions About Guilt and Pleas From Officials and Celebrities, Houston Public Media, (Feb. 28, 2024, 7:49 PM), https://www.houstonpublicmedia.org/articles/news/criminal-justice/2024/02/28/479076/texas-executes-ivan-cantu-for-2000-murders-despite-pleas-from-officials-and-celebrities/.
[4] Texas Prisoner Faces Execution Despite Doubts About His Guilt and Refusal of Courts to Assess New Evidence, Death Penalty Info. Ctr. (Feb. 22, 2024), https://deathpenaltyinfo.org/news/texas-prisoner-faces-execution-despite-doubts-about-his-guilt-and-refusal-of-courts-to-assess-new-evidence.
[5] Jollie McCullough, Texas Judge Cancels Ivan Cantu Execution After New Evidence Suggests He Might Be Innocent, The Tex. Trib., (Apr. 20, 2023, 1:00 PM), https://www.texastribune.org/2023/04/20/texas-execution-ivan-cantu/.
[6] See In re Cantu, 94 F.4th 462, 467 (5th Cir. 2024).
[7] Id. at 474.
[8] Id. at 468.
[9] Policy Issues: Deterrence, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/deterrence.
[10] See generally Stephen N. Oliphant, Estimating the Effect of Death Penalty Moratoriums on Homicide Rates Using the Synthetic Control Method, 21 Criminology & Pub. Pol’y 915 (2022) (analyzing homicide rates in four states with moratoriums and finding that there was no significant increase in homicides); U.S. Department of Justice, Five Things About Deterrence, national institute of justice (May 2016), https://www.ojp.gov/pdffiles1/nij/247350.pdf (noting that research on the effect of the death penalty is uninformative regarding whether it increases, decreases, or has no effect on homicide rates).
[11] Policy Issues: Innocence, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence.
[12] Innocence: Executed But Possibly Innocent, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence/executed-but-possibly-innocent.
[13] See id. (overviewing evidence presented by twenty people executed on death row).
[14] In re Cantu, 94 F.4th at 468.
[15] See Policy Issues: Sentencing Alternatives, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/sentencing-alternatives; see also Susan Ehrhard, Plea Bargaining and the Death Penalty: An Exploratory Study, 29 The Just. Sys. J. 313, 316 (2008) (noting that both prosecutors and defense attorneys felt that the death penalty gives prosecutors leverage in a way that a life sentence does not).
[16] See Facts & Research: Clemency, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/facts-and-research/clemency (highlighting that all states have a process for reducing criminal sentences).