Despite mounting doubts about his guilt, Ivan Cantu running out of time to avoid Texas’ death chamber
LIVINGSTON — In 20 days, state authorities are scheduled to drive death row inmate Ivan Cantu from the Allan B. Polunsky Unit, past freshly built vacation homes on Lake Livingston, along wooded East Texas roads, to the notorious, red-bricked Huntsville Unit, where Texas will execute him. That is if Cantu’s third execution date isn’t canceled like the two before.
Less than a year ago, a last-minute appeal describing false testimony during Cantu’s 2001 trial proved compelling enough for a Republican judge to pause his April 2023 execution date.
The 50-year-old who was sentenced to death for the 2000 murder of his cousin and his cousin’s fiancée, James Mosqueda and Amy Kitchen, claims that an accumulation of post-trial evidence — including a key witness who admitted he lied while testifying and the discovery of a watch Cantu was accused of stealing — is enough to overturn his conviction.
Cantu’s legal team and private investigators in recent years have unearthed these details, among others, but no state or federal court has reviewed the merits of the growing body of information questioning his guilt. But after last year’s scheduled execution was paused, the Texas Court of Criminal Appeals dismissed his request for an evidentiary hearing without offering an explanation for the rejection.
“You made the touchdown, but you’re out of bounds,” Cantu told The Texas Tribune during an interview from death row last week.
Cantu’s legal team has argued in court filings that numerous abnormalities in his case are sufficient to warrant a new trial. Multiple jurors from Cantu’s original trial have said they don’t support execution. The Texas Board of Pardons and Paroles, notoriously unfavorable to inmates, does not inspire hope for Cantu’s recently filed clemency application. And the criminal appeals court’s dismissal last year hinders Cantu’s ability to seek relief in federal courts, his lawyer said.
So for now, his execution is still scheduled for Feb. 28.
“Isn’t that crazy? I’m on death row, I have an attorney, a wonderful attorney, who knows what needs to be done to fix these problems with the court, and the rules and the laws are saying that her hands, basically her hands are tied behind her back,” Cantu said.
Cantu was convicted in 2001 for the Dallas murders of Mosqueda and Kitchen. During the trial, prosecutors 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, a nursing student at the time.
The Collin County district attorney’s office also relied heavily on the testimony of Amy Boettcher who pinned the murders on Cantu, her fiancée, after the two returned from a trip to Arkansas to visit her mother and stepfather. Boettcher testified that Cantu committed the murders, and took her to the crime scene, before the trip.
Police found Mosqueda’s car outside Cantu’s apartment the day after the bodies were discovered, according to court filings. Additionally, police found the bloody pants, matching the victims’ DNA, in Cantu’s trash can.
Cantu has maintained his innocence since he was arrested over 20 years ago. In his filings, Cantu argued that Mosqueda was a local drug dealer and that a rival dealer to whom he owed a lot of money killed him.
Boettcher, a crucial witness in the state’s case, said she disposed of Cantu’s bloody jeans in a trash can inside his kitchen shortly after the murders. She also testified that Cantu threw 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.
But new details that cast doubt over Boettcher’s testimony have emerged.
A signed affidavit from the officer who performed a wellness check on Cantu, requested by Cantu’s mother after she learned his cousin was killed, stated that she did not see bloody clothes in the trash can. Cantu and Boettcher were out of state, on a trip to Arkansas, at the time of the wellness check. Cantu argues that this affidavit, which the officer provided in 2020, is proof that someone placed the clothes in his home to frame him for the murders.
Additionally, Cantu’s legal team discovered in 2019 that officers recovered the Rolex watch after finding it in Mosqueda's home and returned it to his family shortly after the murder.
At the time of the trial, Amy Boettcher’s brother, Jeff Boettcher, also testified against Cantu. He told the jury that Cantu told him about the murders in advance and recruited him to clean up afterward. He also said that protecting his sister was paramount, because they “were in it together.”
But when Amy Boettcher died in 2021, her brother called Collin County investigators to recant his testimony.
A 2022 video of his conversation with an investigator and an attorney who traveled from Texas to Minnesota to meet with him, shows a distressed Boettcher saying that he lied during his testimony. He admitted that at the time of the trial, he was in a difficult point in his life and his testimony wasn’t reliable given he was out of the state at the time of the murders and was a frequent drug user. Boettcher expressed remorse that his testimony had helped land Cantu on death row.
“When does it become a house of cards?” Gena Bunn, Cantu’s attorney, said. “What is holding this conviction up?”
Bunn previously worked as the chief of the postconviction and capital litigation divisions of the state attorney general’s office when both U.S. Sen. John Cornyn and Gov. Greg Abbott led the agency. She is hoping to appeal to the Collin County district attorney’s office and request another look at Cantu’s case in light of the recent developments.
“Let's put on the brakes, let's stay the execution date and look at this a little more closely,” she said.
Family members of Mosqueda and Kitchen could not be reached for comment, but there is still support for Cantu’s execution.
“Let's hope justice is finally carried out for Amy and James, and that the execution goes forward,” read a Feb. 2 social media post from Amy Kitchen Emergency Fund, a fundraising group launched in the victims’ memory.
Rejection without explanation
Last April, Cantu filed a subsequent writ of habeas corpus claiming he was wrongfully convicted with false testimony from the Boettchers. One day after the appeal was filed, Republican state district Judge Benjamin Smith withdrew his court order for Cantu’s execution — scheduled for the following week — saying the new arguments required further review. Cantu’s first execution date in 2012 was rescheduled because he was in the middle of federal litigation over his case.
The Texas Court of Criminal Appeals, the state’s highest criminal court, dismissed Cantu’s appeal without considering its merits four months after Smith paused the 2023 execution date. The court’s dismissal said that Cantu’s request for a hearing failed to meet the requirements necessary for a review but did not expand on why the Boettchers’ testimony should not be reconsidered.
“They didn’t give us a whole lot of information as to why we didn’t meet the standard,” Bunn said.
Texas has strict parameters for which subsequent appeals can be considered and the Court of Criminal Appeals interpreted that statute narrowly, Bunn said. Because federal courts only consider federal issues, and the state's highest criminal court dismissed Cantu’s appeal on state law, last year’s rejection has made it difficult for the defendant to evade execution through federal litigation, she said.
Regardless, Cantu intends to pursue relief in federal courts as well. Additionally, he has until Feb. 14 to file further litigation with the highest criminal court in the state. His legal team filed a clemency application on Tuesday.
Cantu has also requested evidence and notes from the state’s ballistic expert who testified at trial that a bullet found in his apartment wall came from the same gun used in the murders. Along with a group of concerned experts, private investigator Matt Duff, who launched a podcast about Cantu’s case in 2020, recreated Cantu’s exterior wall where police found a bullet from the same gun they said was used to kill Mosqueda and Kitchen. Amy Boettcher testified that Ivan shot at her the night before the murders and a bullet had been lodged in the wall of his apartment.
The group carried out the re-creation to highlight discrepancies in a test bullet and the bullet submitted as evidence in Cantu’s trial, in an effort to highlight issues with the original investigation.
Stewart Fillmore, a former special agent with the Federal Bureau of Investigation, noted in court filings that there were inconsistencies between the two bullets, including deformities caused by the impact and the size of the bullet hole in the wall.
The Collin County district court dismissed requests to release notes from the ballistic expert and related evidence.
Bunn, who spent over a decade working on capital cases on behalf of the state, also argues that Cantu’s former attorneys failed their client in numerous ways.
“They did not have a defense investigator,” Bunn said. “Even considering how capital representation was 20 years ago, still that blows my mind.”
Compared to the state’s medical examiner, ballistics, DNA, fingerprint and blood spatter experts, Cantu’s defense didn’t call on a single expert to refute prosecutors' case, Bunn said.
Cantu’s trial took place before the passage of the Michael Morton Act, a Texas law which requires prosecutors to turn over evidence to defendants accused of crimes, beyond the constitutional requirement of providing what is “material either to guilt or to punishment.” Bunn noted that the Collins County district attorney’s office did not turn over all offense reports or witness statements until those individuals took the stand at trial.
Other powerful voices in Cantu’s corner are some of the jurors who put him on death row over two decades ago. At least three of the jurors in the capital case have pushed to halt his execution after hearing new details of his innocence claims presented in his appeals. Jeff Calhoun, the jury foreman in Cantu’s 2001 trial, wrote to the state after Duff, the private investigator, presented post trial evidence that convinced him Cantu’s case should be reconsidered.
“I believe that as jurors, we collectively decided fairly based on the evidence brought forth by the prosecutors,” wrote Calhoun in a declaration last month. “The unfortunate outcome, though is that the trial itself was not fair as perjury was committed. I don’t know where else the truth was fabricated, if anywhere, but this alone leaves me apprehensive that we were presented with the total truth.”
Cantu said his heart goes out to Mosqueda and Kitchen’s families, but he said the Collin County district attorney’s office has a responsibility to find the person who committed these murders.
“The worst thing is that I know that we can disprove the case and present the evidence and everything that supports me and secures a new trial so that I can get home,” Cantu said, considering the possibility of a successful appeal. “But yet is the court gonna do the right thing and grant me relief and allow me to go to an evidentiary hearing in the courtroom?”
Source: texastribune.org, William Melhado, February 8, 2024
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