THE LARRY GRIFFIN: PART THREE; NEW YORK TIMES EXAMINES THE CASE;

"IN RECENT YEARS, JOURNALISTS HAVE IDENTIFIED FOUR CASES IN WHICH LIKELY INNOCENT MEN WERE SENTENCED TO DEATH AND EXECUTED; THREE OF THOSE CASES INVOLVE MEN EXECUTED IN TEXAS, RUBEN CANTU, CARLOS DELUNA, AND TODD WILLINGHAM; THE FOURTH CASE IS THAT OF LARRY GRIFFIN, EXECUTED BY MISSOURI IN 1995.
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A story by New York Times reporter Kate Zernike published on July 19, 1995, under the heading, "In a 1980 Killing, a New Look at the Death Penalty," placed the Larry
Griffin case in the limelight.

"The corner of Sarah and Olive looks almost nothing as it did 25 years ago when a 19-year-old drug dealer named Quintin Moss was gunned down from a slow-moving car. The boarded-up houses have been replaced by a new townhouse development marked by sleek stone gates; the drug dealers and prostitutes are gone," the story began.

"And the man convicted of the killing, Larry Griffin, was executed 10 years ago," it continued;

"Yet the city's top prosecutor has decided to re-investigate the murder as if it just happened, out of new concerns that the wrong man may have been put to death for the crime.

Prompted by questions raised in a report by the NAACP Legal Defense and Educational Fund, the prosecutor, Jennifer Joyce, hopes to decide once and for all whether Mr. Griffin was guilty or innocent -- though she acknowledges that 25 years later it may be hard to do more than show the flaws in the earlier prosecution.

Still, should Ms. Joyce, the St. Louis circuit attorney, demonstrate Mr. Griffin was not the killer, as the report and even some members of the victim's family contend, it would be the first proven execution of an innocent person, so far as death penalty advocates or opponents can recall.

Though dozens of people have been exonerated while on death row -- from 30 to 75 in the last two decades, depending on which side of the debate is talking -- proving Mr. Griffin's innocence would hand death penalty opponents the example that they have lacked in arguing for the abolition of capital punishment.

Already, Ms. Joyce's decision last week to investigate has prompted newspaper editorials to suggest that the case could be cause for a moratorium on the death penalty. Even some death penalty supporters say that her willingness to officially re-open the investigation is a remarkable, and perhaps unprecedented, development in the debate.

''If they prove that he was innocent, that would be the gold standard,'' said Joshua Marquis, the prosecutor in Clatsop County, Ore., and a frequent speaker in support of the death penalty. ''I'm not sure opponents of the death penalty would start prevailing, but they'd be able to say to people like me, 'What about Mr. Griffin?'''

Still, Mr. Marquis said, ''innocence is very different than saying this guy maybe didn't do it.''

And it is hard to sort out an absolute truth 25 years later.

Unlike many cases that have resulted in exonerations, this case has no DNA evidence. The man whose testimony is now being challenged died last year. Other witnesses have changed their stories; memories are hazy. And like the debate about the death penalty itself, beliefs about what really happened here that June afternoon in 1980 are colored by race.

The prosecutor has seen three exonerations since taking office in 2001.

''Every prosecutor conceptually has the notion that someone innocent can be convicted,'' Ms. Joyce said. ''I've seen it firsthand.''

Her decision to revisit the Griffin case followed the report by the NAACP group, which began investigating the case last year after people here expressed long-simmering doubts about Mr. Griffin's guilt. The report contends that three other men killed Mr. Moss. Mr. Moss's family joined the NAACP group in raising questions about Mr. Griffin's guilt.

According to the report and interviews, Mr. Moss's siblings had warned him to get out of town in the summer of 1980; people said he was a target because he was believed to have killed Dennis Griffin, a reputed drug dealer and Larry Griffin's older brother.

On June 26, Mr. Moss was at the corner of Sarah Avenue and Olive Street, a crime-infested strip known as the Stroll, when a 1968 Chevrolet Impala drove by slowly. Two black men leaned out and shot him 13 times, killing him almost instantly.

Another man, standing 75 feet away, was hit by a stray bullet but told the police he did not see the gunmen.

The car was found abandoned that night with the murder weapons, as well as a traffic ticket made out to Reggie Griffin, the 19-year-old nephew of Larry Griffin.

At Larry Griffin's trial a year later, the only eyewitness testimony came from Robert Fitzgerald, a career criminal from Boston and an admitted drug addict who was in St. Louis in the federal witness protection program. Mr. Fitzgerald said he and a friend had heard the shots from behind the hood of a car while replacing a battery.

Mr. Fitzgerald testified that he had a good view of the gunmen and memorized the license plate. He identified Larry Griffin in a lineup of photographs at the police station and later identified the abandoned car.

On June 26, 1981, exactly a year after the murder, Larry Griffin was convicted. Mr. Fitzgerald, who was then facing felony fraud charges, was cleared and released.

After losing several appeals, Mr. Griffin was executed by lethal injection at age 40 in June 1995. But some doubts about Mr. Fitzgerald's testimony were raised in the appeals process.

A judge who dissented from a decision that upheld Mr. Griffin's conviction in 1983 noted that Mr. Fitzgerald had "a seriously flawed background, and his ability to observe and identify the gunman was also subject to question."

Mr. Fitzgerald changed his account at a hearing in 1993, saying that a detective had shown him only one photograph, declaring, "We happen to know who did it."

The NAACP group hired an investigator last summer and tracked down the police officer who had testified that Mr. Fitzgerald was at the scene. The officer, Michael Ruggeri, now retired, said Mr. Fitzgerald was not there when he arrived; he would have recalled, Mr. Ruggeri said, because the Stroll was a black neighborhood, and Mr. Fitzgerald was white.

Mr. Ruggeri told investigators that if Mr. Fitzgerald had reported a license plate number, it would have been noted on the police report.

The investigators also tracked down the man shot by the stray bullet, Wallace Conners. This time, Mr. Conners said that he had seen the gunmen, that Larry Griffin was not among them and that no white man had been on the scene.

Patricia Moss Mason, the victim's sister, told the investigators that she had watched the shooting from a nearby window and had not seen any white man either.

Mr. Fitzgerald died last year before investigators could talk to him.

"Fitzgerald was the entire case and now there's very strong eyewitness evidence that Fitzgerald was not there, and what's more, Larry Griffin was not there," said Samuel Gross, a law professor at the University of Michigan who oversaw the NAACP group's investigation.

Mr. Fitzgerald, he said, had been "deeply motivated to please the police."

"It's hard to imagine why the victim's sister, a man who was shot at the same time himself, and a police officer - who live in three different states at this point and were interviewed separately - would all say, 'Actually, he wasn't there,' " Mr. Gross said.

The report suggests that three men, all now in prison without chance of parole, were the real killers: Ronnie Thomas-Bey, who owned the car and was arrested but released for lack of evidence in the case; Reggie Griffin; and Ronnie Parker, a drug dealer who ran in the same crowd.

Mr. Parker and Reggie Griffin have denied involvement. Mr. Thomas-Bey testified in another trial in 1995 that he was in the car when Mr. Moss was shot, and that Larry Griffin was not - though he said he was not sure of the last point. Mr. Thomas-Bey's uncle told investigators that his nephew had told him that the same three were in the car, and that it had been "gospel" in the neighborhood.

Mr. Moss's family, too, had long had doubts; they felt prosecutors had paid too much attention to a white witness. Walter Moss, a brother, said he called the police several times saying that his sister had seen the killing and was ignored. "It was, 'We don't need you, we know all we need to know,' " Walter Moss said.

The original prosecutor, Gordon Ankney, stands by the conviction. Mr. Conners, he said, would have been a flawed witness, even if he had not left town, as he did.

"We've got a witness who once said he didn't see a thing, and then refused to talk," Mr. Ankney said. "If I put him on the stand, even if he said it was Larry Griffin, I'd look like an idiot. Then we'd be looking like we had somebody making up a story."

Mr. Ankney noted that Larry Griffin's alibi had failed - while a family friend testified that Mr. Griffin had been helping him sell a canoe at home when the shooting occurred, records showed the canoe had sold the day before.

Mr. Ruggeri, the retired police officer, said in an interview that he was reluctant to have his recollections used to overturn a conviction. He does not recall testifying, he said. Still, he asked, "what would you trust, your memory 12 months later, or 25 years later?"

Mr. Griffin's family declined to comment; the case is complicated by the suggestion that a relative, Reggie Griffin, could have been the killer.

Mr. Conners, too, declined to speak through his lawyer, Barry Scheck, a co-founder of the Innocence Project, which says it has exonerated 159 people wrongfully convicted.

Ms. Joyce said she had begun re-reading testimony given at the trials and hearings for Larry Griffin and would re-interview any living witnesses. She hopes to finish by September, she said, and to declare him innocent or guilty.

More likely, she said, she will determine that some things about how the case was handled are troubling, but that the evidence as to Mr. Griffin's guilt or innocence is inconclusive.

Still, she said, it is important to show that prosecutors are willing to consider whether mistakes have been made.

"People say, 'Will this make citizens trust the criminal justice system less?' " she said. "I hope it makes them trust it more.""Harold Levy...hlevy15@gmail.com;

LARRY GRIFFIN CASE; PART TWO; BOB HERBERT COLUMN; NEW YORK TIMES; "CONVICTED, EXECUTED, NOT GUILTY";

"IN RECENT YEARS, JOURNALISTS HAVE IDENTIFIED FOUR CASES IN WHICH LIKELY INNOCENT MEN WERE SENTENCED TO DEATH AND EXECUTED; THREE OF THOSE CASES INVOLVE MEN EXECUTED IN TEXAS, RUBEN CANTU, CARLOS DELUNA, AND TODD WILLINGHAM; THE FOURTH CASE IS THAT OF LARRY GRIFFIN, EXECUTED BY MISSOURI IN 1995.
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New York Times columnist Bob Herbert reminds us of the fallibility of judges and juries in a column about the Larry Griffin case under the heading "Convicted, Executed, Not Guilty"

"If Larry Griffin were being tried today for the murder of Quintin Moss, he would almost certainly be acquitted," the column, published on July 14, 2005 begins.

"The evidence is overwhelming that he did not kill Mr. Moss," it continues;

"But Mr. Griffin is not being tried today. He has already been executed for the murder.

While significant, this development is not that much of a surprise to those who understand that human beings are fallible and that much of the criminal justice system in the United States is a crapshoot. Whether it is this case or some other, it is inevitable that we will learn of someone who has been executed for a crime that he or she did not commit.

Judges and juries are no less prone to mistakes than politicians, reporters, doctors, engineers or center fielders. Which is why the death penalty should be abolished.

Larry Griffin's case is probably not the best one for advancing this argument, but it's the case at hand. He was not a solid citizen. While it seems clear that he did not commit the crime for which he was executed - the killing of Mr. Moss - he did plead guilty to killing someone else.

Mr. Griffin's character, or lack of same, does not make the principle at stake any less valid. This was recognized by Jennifer Joyce, the circuit attorney in St. Louis, where Mr. Moss was murdered way back in 1980. Ms. Joyce has taken the extraordinary step of officially reopening a murder investigation after the defendant was executed.

Quintin Moss was 19 years old and a locally well-known drug dealer when he was shot 13 times in a drive-by attack on a notorious block in St. Louis known as "The Stroll." A bystander, Wallace Conners, was also shot but not seriously wounded.

Mr. Conners, who knew Larry Griffin, saw the men who drove up and opened fire. He said Mr. Griffin was not one of the men. But he was never called, either by the prosecution or the defense, to testify at Mr. Griffin's trial.

The key testimony was given by Robert Fitzgerald, a professional criminal who said he had witnessed the murder and identified Mr. Griffin as one of the shooters. Mr. Fitzgerald was in the federal witness protection program at the time. He had a number of felony charges pending and was an admitted user of heroin and speed.

A Missouri Supreme Court justice said of Mr. Fitzgerald: "The only eyewitness to the murder had a seriously flawed background, and his ability to observe and identify the gunman was also subject to question."

There was no physical evidence against Mr. Griffin, and no one else at the trial placed him at the scene of the attack. But he was convicted nevertheless, and executed by lethal injection on June 21, 1995.

Mr. Fitzgerald was formally released from custody on the day Mr. Griffin was convicted.

One of the reasons we have not had a definitive example of the execution of an innocent person is that official investigations cease once the death penalty has been carried out.

In this case, an extremely unusual private investigation was conducted after Mr. Griffin's death. It was sponsored by the NAACP Legal Defense and Educational Fund and led by Samuel Gross, a professor at the University of Michigan Law School. That investigation has pretty much demolished Mr. Fitzgerald's account of what occurred and prompted Ms. Joyce to reopen the case.

Mr. Conners, the wounded bystander, says flatly that Mr. Fitzgerald, who died last year, was not at the scene when the attack took place. And a St. Louis police officer who supported Mr. Fitzgerald's account at the trial now says that Mr. Fitzgerald told him, "I didn't see nothing."

The officer says he can't explain why he supported Mr. Fitzgerald's false testimony at the trial.

Professor Gross, who has received extensive pro bono help from prominent law firms, has given prosecutors the names of three men he believes committed the murder, and the evidence that points to their guilt.

Ms. Joyce, who is reopening the case, was not in the circuit attorney's office when Mr. Griffin was prosecuted. She told me in a telephone conversation yesterday, "I just want to see the truth."

The investigation will be thorough, she said, adding, "I wanted to take an independent look at it, and if mistakes were made, do what I can to rectify them, recognizing that there may not be much I could do."
Harold Levy...hlevy15@gmail.com;

LARRY GRIFFIN; PART ONE; "THE FOURTH CASE"; STANDDOWN TEXAS PROJECT;

Larry Griffin has been described by the StandDown Texas Project as "the fourth case."

"The fourth case" is described in a note dated June 19m 2007, on the Project's Web-site;

"In recent years, journalists have identified four cases in which likely innocent men were sentenced to death and executed," the note begins;

"Three of those cases involve men executed in Texas, Ruben Cantu, Carlos DeLuna, and Todd Willingham," it continues; (This Blog is following the aftermath of all of these controversial executions);

"The fourth case is that of Larry Griffin, executed by Missouri in 1995. The St. Louis Post-Dispatch broke the story in 2005."

AP notes that the report of an official investigation is expected to be completed shortly. This AP dispatch is available via the Joplin Globe.

A two-year investigation into whether a St. Louis man was executed for a crime he didn’t commit is expected to wrap up soon, the lead investigator in the case told The Associated Press Monday.

Rachel Smith, an assistant circuit attorney, is among three attorneys and two police investigators who have been looking into the case of Larry Griffin since July 2005.

Griffin was executed in 1995 for a fatal 1980 drive-by shooting. Circuit Attorney Jennifer Joyce ordered the investigation after the victim’s family, among others, came forward and expressed concern that Griffin was wrongfully convicted and executed.

Smith said she expects to turn in her report to Joyce by the end of this month. Unless Joyce orders further investigation, the report could be released to the public soon after that, Smith said.

Saul Green, a Detroit attorney who was among those pushing for Joyce to reopen the case, said the Missouri case is among four or five around the country in which investigators are looking into whether innocent people were executed.

At the time of the execution, Griffin’s lawyers said the sole eyewitness had recanted. They said another man claimed to have joined three others in killing Moss.

Asked by The Associated Press days before the execution if he killed Moss, Griffin declared, “I did not! If I’m going to be punished for something, it ought to be for something that I did. Innocence doesn’t mean anything.”

Smith said her investigation involved nearly 80 interviews of people ranging from police to prostitutes who knew Griffin. She declined to discuss the findings but said she was confident in them.

The original St. Louis Post-Dispatch does not seem to be available on the Post-Dispatch website. Here is a brief that appeared in the New York Times, July 13, 2005

"Prosecutors in St. Louis are investigating whether a man may have been wrongly executed in 1995. Jennifer Joyce, the St. Louis circuit attorney, said Monday that she had reopened the case of Larry Griffin, who was convicted in a drive-by killing in 1980, after she was approached by several people with doubts. Prosecutors said Mr. Griffin killed Quinton Moss, who had been questioned but not charged in the killing of Mr. Griffin's brother. A witness identified Mr. Griffin as the gunman. But at the time of the execution, Mr. Griffin's lawyers said the witness, who was in the federal witness protection program, had recanted. They said another federally protected witness claimed to have joined three other men in killing Mr. Moss.""

Harold Levy...hlevy15@gmail.com;

RUBEN CANTU CASE; PART FOUR; FORMER PROSECUTOR SAM MILLSAP'S MESSAGE TO MONTANA'S SENATE JUDICIARY COMMITTEE: ABOLISH THE DEATH PENALTY;

Wikipedia tells us that: "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. In a December 2005 interview with the Express-News, Millsap expressed a newfound opposition to capital punishment. In that 2005 story, Millsap, 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, "'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, he says, '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."[2]"

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"RUBEN CANTU HAD A FINE DEFENSE LAWYER, AN ETHICAL PROSECUTOR, A FAIR JUDGE, AND A JURY THAT RETURNED THE ONLY POSSIBLE VERDICT, BASED ON THE EVIDENCE THAT WAS
PRESENTED. AND YET, IT HAS BEEN DETERMINED 21 YEARS LATER THAT HE MAY WELL HAVE BEEN INNOCENT. WHETHER HE WAS INNOCENT OR NOT, THE SYSTEM FAILED HIM."

SAM MILLSAP;
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"CONSIDER FIRST THE CLEAREST OF THE RECENT TEXAS CASES AND TELL ME THAT THE CRIMINAL JUSTICE SYSTEM PROTECTS THE INNOCENT. CAMERON WILLINGHAM WAS CONVICTED OF ARSON AND EXECUTED; HIS THREE CHILDREN WERE KILLED IN THE FIRE THAT BURNED HIS HOUSE TO THE GROUND. HIS CONVICTION WAS BASED ON EXPERT TESTIMONY THAT WAS GENERALLY CONSIDERED AT THE TIME TO BE RELIABLE. WHAT WE NOW KNOW WITH CERTAINTY—TOO LATE FOR WILLINGHAM--IS THAT WHAT WE ACCEPTED AS EXPERT TESTIMONY AT THE TIME WAS NOTHING MORE THAN JUNK SCIENCE; IT IS NOW CLEAR THAT THE EXPERT TESTIMONY UPON WHICH HIS CONVICTION WAS BASED WAS FLAWED AND THAT, IN FACT, THE STATE OF TEXAS CONVICTED AND EXECUTED NOT ONLY AN INNOCENT MAN; WE EXECUTED A MAN FOR A CRIME THAT NEVER OCCURRED."

SAM MILLSAP;
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Ex-prosecutor Millsap delivered this powerful address to the Committee on February 7, 2007 - while the Committee was considering an Act which Abolished the state's death penalty and replaced it with life Imprisonment without Possibility of Release;

"I’m Sam Millsap and I come to you from the state of Texas, where we execute
folks like its going out of style," he began;

"I’m no wild-eyed, pointy-headed liberal; I am the former elected District Attorney from San Antonio, Texas, the 8th largest city in America," he continued;

"As Bexar County District Attorney, I oversaw the successful prosecution of several capital murder cases, each of which resulted in the execution of the defendant. I have been a strong supporter of the death penalty throughout my adult life. Last year, a major Texas newspaper established to my satisfaction that one of my prosecutions may have resulted in the execution of an innocent man. I believe prosecutors whose best efforts may have produced unfortunate results in capital murder cases have a moral duty to publicly acknowledge and accept responsibility for their mistakes. I fervently hope that there are only a few prosecutors and former prosecutors in America today who find themselves, as I do, in the position of having to admit an error in judgment that may have led to the execution of an innocent man. I’m here today to discuss the death penalty from the perspective of a former prosecutor who is responsible for prosecution and execution of a man who may well have been innocent. Although it is crucial that we be willing and able to look back and correct the errors of the past, as Montana has done in the non capital convictions of Chester Bauer, Jimmy Ray Bromgard, and Paul Kordonowy, it is more important that we look to the future in the search for a system that guarantees--in capital murder cases--the protection of the innocent. As is the case in Texas, the criminal justice system in Montana, on its best day, is driven by very dedicated, but imperfect, human beings and, try as we do to get it right, sometimes we simply don’t. Our courts and juries determine guilt or innocence based on testimony from witnesses who are sometimes wrong and who don’t always tell the truth. It is against this backdrop—what our states have in common—that I address the issue of innocence in the context of the case of Ruben Cantu, who was prosecuted by my office in 1985 and executed in 1993. Because Ruben Cantu didn’t receive just a fair trial—but arguably received a perfect trial--its facts are both instructive and haunting for every state that permits the death penalty.

Ruben Cantu had a fine defense lawyer, an ethical prosecutor, a fair judge, and a jury that returned the only possible verdict, based on the evidence that was
presented. And yet, it has been determined 21 years later that he may well have been innocent. Whether he was innocent or not, the system failed him.

You are entitled to wonder how I can argue that the system failed in a case in
which it is unclear whether the defendant was, in fact, innocent. In Texas, like
Montana, prosecutors have vast discretion in deciding whether and how to prosecute capital murder cases. I made an error in judgment by permitting Cantu to be prosecuted for capital murder based on the uncorroborated testimony of one eyewitness. Most prosecutors in America, confronted with the same circumstance at that time, would have made the same decision I made. That eyewitness, who had absolutely nothing to gain but trouble for doing so, has recently recanted his sworn trial testimony under circumstances that make his current claim credible. One might argue that my mistake can be remedied by requiring more than the testimony of a single eyewitness in death penalty cases. That would be a good decision, but it would ignore the fact that prosecutors acting entirely in good faith make all sorts of judgments in murder cases and, because they are human, sometimes make mistakes. Add to that undeniable fact, the reality that judges, jurors, defense attorneys, and witnesses also make mistakes and what you end up with is a system that, by definition, cannot be relied on to protect the innocent in all cases. The system we rely on to decide who may live and who must die is broken and, because it is driven by decisions that are made by human beings, can't be fixed. What we have seen over and over again are situations in which witnesses who have nothing but trouble to gain by recanting sworn trial testimony nevertheless do so and for good reasons. We have seen junk science debunked, and the exposure of terrible mistakes by forensic laboratories. And finally, we have seen misconduct and errors by many players within the system. In short, the undeniable fact is that the system we rely on in this country to prosecute capital crimes simply cannot be trusted to protect the innocent. Some suggest that it's good enough if we get it right most of the time. That good intentions and strong procedural safeguards like you have here in Montana are sufficient. If you believe, as I do, that we must always get it right in capital murder cases, that the system must do what is intended—guarantee the protection of the innocent--accepting a system that tries hard and gets it right most of the time is simply not good enough when the sanction is so final. Death penalty supporters argue that there is no proof that an innocent person has ever been executed in the United States. United States Supreme Court Justice Antonin Scalia recently said in his concurring opinion in Kansas v. Marsh that he knew of no innocent man who had been executed. I would challenge Justice Scalia and anyone else who is tempted to argue that there is no proof that an innocent person has ever been executed in the United States to make that argument after they have examined the record from Texas. Consider first the clearest of the recent Texas cases and tell me that the criminal justice system protects the innocent. Cameron Willingham was convicted of arson and executed; his three children were killed in the fire that burned his house to the ground. His conviction was based on expert testimony that was generally considered at the time to be reliable. What we now know with certainty—too late for Willingham--is that what we accepted as expert testimony at the time was nothing more than junk science; it is now clear that the expert testimony upon which his conviction was based was flawed and that, in fact, the State of Texas convicted and executed not only an innocent man; we executed a man for a crime that never occurred. I urge you to recommend that the death penalty be abolished in the State of Montana."

Harold Levy...hlevy15@gmail.com;

RUBEN CANTU CASE: COLUMNIST'S PERSPECTIVE IN "THE INDEPENDENT" (UK); EVEN TEXANS WHO SUPPORT DEATH PENALTY BELIEVE THERE HAVE BEEN MISTAKES;

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.

COLUMNIST ANDREW GUMBEL; THE INDEPENDENT (UK);
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The perspective is provided by Andrew Gumbel in a column which ran on November 22, 2005 under the heading: "Case of Ruben Cantu highlights flaws in Texas death penalty."

"George Bush's home state of Texas suffered the rare indignity yesterday of being accused by one of its own most prominent newspapers of putting an innocent man to death," the column began.

"The Houston Chronicle put together an impressive dossier of sworn statements and retracted testimony ­ along with doubts expressed by the prosecuting attorney ­ to suggest that Ruben Cantu of San Antonio should never have been charged with capital murder, much less convicted and executed," it continued;

"Cantu was just 17 when he was arrested for killing a man during a botched robbery on San Antonio's notoriously rough South Side in 1985. He was convicted on the evidence of a single eyewitness, who identified him only after being shown his picture by police on three separate occasions. And he was put to death by lethal injection in 1993, when he was 26.

There is nothing new about doubts arising from death penalty cases in the United States, and especially not in Texas, which leads the nation in both executions and the vehemence of the anti-capital punishment movement. 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.

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.

Cantu's best friend David Garza, who was charged with involvement in the robbery but not in the murder, has come forward with a sworn statement saying the triggerman was someone else. The eyewitness who testified at trial, a man named Juan Moreno who survived being shot nine times that night, has now retracted that testimony.

"They put the blame on the wrong person," Moreno told the Chronicle. "[Cantu] was innocent. I am sure." Both men say they have no reason to lie, and are speaking out now out of guilt at the consequences of their actions at the time of the trial. Garza did not testify. Moreno agreed to testify as he was in the United States illegally at the time and faced all kinds of trouble if he did not play along.

It is not uncommon across the United States for death penalty cases to be constructed on the testimony of criminals or convicts, who may be susceptible to dishonesty and manipulation by police or prison guards. Prosecutors will tend to argue obstinately for the guilt of the defendant even when new evidence points the other way. But in the Cantu case the prosecuting lawyer has told the Chronicle he made a mistake in bringing a capital case in the first place.

Sam Millsap Jr, who was district attorney in San Antonio at the time of the Cantu trial, acknowledged that the Moreno testimony was thin even to begin with. "It's so questionable. There are so many places where it could break down," he told the paper."

Harold Levy...hlevy15@gmail.com;

RUBEN CANTU CASE: PART TWO: FORMER PROSECUTOR (SAM MILLSAP) HAUNTED BECAUSE HE SOUGHT DEATH PENALTY - WHICH HE NOW OPPOSES; HOUSTON-CHRONICLE;

Wikipedia tells us that: "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. In a December 2005 interview with the Express-News, Millsap expressed a newfound opposition to capital punishment. In that 2005 story, Millsap, 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, "'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, he says, '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."[2]"

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Millsap discussed his transformation in a Houston-Chronical interview, conducted by reporter Kim Cobb, ran under the heading: "Former Bexar DA crusades against the death penalty: Millsap has become an unlikely voice against executions."

"Sam Millsap Jr. knows that most people in his home state disagree with his fervent opposition to the death penalty, but the former Bexar County district attorney remains puzzled by a particular expression of sympathy he gets from many of his fellow Texans," the interview began;

"They frequently admonish him not to beat himself up over the execution of Ruben Cantu, a potentially innocent man Millsap helped send to the death chamber," it continued;

"Millsap says his well-wishers almost always offer the same advice: "Whether he was in fact guilty of the crime for which he was executed is immaterial -- he was a worthless human being who is better off dead."

Those words always stop him in his tracks, convincing him that he has a lot of work to do in his own backyard. Millsap has trouble getting an audience for his views in Texas, where polls consistently suggest a majority supports the death penalty. But when a New Jersey commission earlier this month backed the abolition of the death penalty, it was partly based on Millsap's testimony. "I remember him well," recalled the commission's chairman, the Rev. M. William Howard Jr. "Whenever a prosecutor is able to tell that kind of story, people stand up and take notice." Millsap travels to Paris in early February to speak to the Third World Congress Against the Death Penalty to explain his evolution from a full-throated execution advocate to a death penalty abolitionist. He knows that his pedigree as a Texas prosecutor is part of the draw. "When I go to these conferences," he said, "people kind of stare at me like I'm the two-headed donkey in the freak show because I come from this place where people love to execute criminals."

He's 55 now, but Millsap was young and brash when he took over as Bexar County district attorney in 1983. He left office in 1987, he said, confident that all who were sentenced to die on his watch was guilty of the crime for which he was convicted. But the next 13 years whittled away at that confidence. DNA evidence was routinely setting the convicted free, he said, and a groundbreaking Columbia University study of capital murder cases that had been overturned on appeal revealed rampant errors in defense and misconduct by prosecutors and police. When Illinois Gov. George Ryan declared a moratorium on executions in his state, based on evidence that 13 Illinois death row inmates might have been wrongfully convicted, it was a showstopper.

New complications

Millsap, now in private practice, issued a statement in 2000 revealing that the man who had once been so bullish on the death penalty now had grave doubts about the system. "I made my statement. I went back to living my life," the former San Antonio prosecutor said. "And in December 2005, (reporter) Lise Olsen and the Houston Chronicle complicated my life immeasurably by satisfying me that a prosecution and execution that I was responsible for may well have ... produced the execution of an innocent man." Ruben Cantu, a gang member convicted of a robbery-related murder when he was 18, was executed on Aug. 24, 1993. In 2005, a Chronicle investigation suggested that Cantu was possibly innocent. A co-defendant signed a sworn affidavit saying Cantu was not with him the night of the killing. The sole eyewitness to the crime has since recanted his identification of Cantu, saying he felt pressured by police to name him as the killer. And there was no physical evidence connecting Cantu to the crime. "What I realize now with maturity I didn't have at 35, or however the hell old I was, I realize that eyewitness testimony is not as reliable as I thought it was at that point in my life," Millsap said. "We'll never know whether Cantu was innocent or not."

Playing a constructive role;

When someone raises serious questions about something that happens on a former prosecutor's watch, Millsap said, that prosecutor has a duty to deal with it. And he's willing to travel just about anywhere to talk about the stakes involved when the judicial system fails to protect the innocent. "The corresponding regret that I have and feel so deeply," he said, "is that prosecutors of the other Texas cases at the center of this debate are silent or refuse to acknowledge the possibility of mistakes." Robert Kepple, executive director of the Texas District and County Attorneys Association, agrees that enforcement of the death penalty is not a particularly troubling issue for most state prosecutors. "If you ask prosecutors if they feel comfortable about asking for the assessment of death, they're going to say yes," Kepple said. "Of the vast majority of eligible cases, the vast majority (of prosecutors) seek something other than death." While nine men sit on death row in New Jersey, the state has not executed anyone in 43 years. The state Legislature is expected to accept the commission's recommendation to abolish the death penalty. "It was encouraging for me to have the opportunity to play a constructive role in a state that is looking hard at whether the death penalty is something that they want to be part of their legal fabric," Millsap said. "I love the state of Texas and wouldn't live anywhere else," he said. "I just think, on this particular issue, we're dreadfully wrong.""

Harold Levy...hlevy15@gmail.com;

RUBEN CANTU CASE; PART ONE: MORE INNOCENT BLOOD ON TEXAS' HANDS? WIKIPEDIA ACCOUNT;

"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. THE BOTTOM LINE IS, AN INNOCENT PERSON WAS PUT TO DEATH FOR IT. WE ALL HAVE OUR FINGER IN THAT."

MIRIAM WARD, FOREWOMAN OF THE JURY THAT CONVICTED RUBEN CANTU."
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Ruben Cantu sadly belongs on the list of Texans whose cases cry out innocence who were executed by the State of Texas which has all to often claimed infallibility. Startling developments in the case - including doubts on the verdict and death sentence which have been expressed by the surviving victim, the co-defendent, the district attorney, and the jury forewoman;

The Wikipedia entry runs as follows:

Ruben Montoya Cantu (December 5, 1966 – August 24, 1993) was a Texan who was executed for murder. During the years following the conviction, the surviving victim, the co-defendant, the District Attorney, and the jury forewoman have all made public statements that cast doubt on Cantu's guilty verdict and on the death sentence.

Background:
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 brother 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.


Convicted of armed robbery and murder:
(Note that Juan Moreno, the surviving victim of the attack, is not the former Texas Rangers Major League baseball player of the same name.)

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 (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) 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.

Juan Moreno was the key eyewitness in the trial, eventually identifying Ruben Cantu as the killer in court, only to recant his story a decade after Cantu was executed.[1]

On the basis of no physical evidence, no confession, and only Moreno's subsequently recanted testimony, Ruben Cantu was convicted by a jury of first degree murder. Shortly after his conviction and sentencing, Cantu wrote the following note to the people of San Antonio: "My name is Ruben M. Cantu and I am only 18 years old. I got to the 9th grade and I have been framed in a capital murder case."

Executed by the state of Texas;
On August 24, 1993, at 22 minutes after midnight, Ruben Cantu at the age of 26, died by lethal injection, becoming the fifth juvenile offender to be executed by Texas. His final request was for a piece of bubble gum, which was denied. Asked if he had a last statement, he said,"No, sir."


Police allegedly pressure a witness after a bar fight;
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 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.

The case went cold, and no suspect was arrested. About four months after the robbery-murder, there was an unrelated evening incident at the Scabaroo Lounge, a bar near Cantu's home. Officer Joe De La Luz, an off-duty, plainclothes police officer carrying two concealed weapons, claimed to have been shot by Cantu in an unprovoked incident at that bar. According to the account given by Cantu and corroborated by others at the scene, a dispute arose over a game of pool, De La Luz threatened Cantu, flashed a pistol, and did not identify himself as a police officer. Cantu, who was also armed, shot De La Luz. Officer De La Luz survived the shooting.

His friend, Sgt. Bill Ewell, re-opened the Gomez homicide case on the day of that bar shooting. 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. 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 final attempt, Moreno positively identified the photo of Cantu as being one of his attackers.

Juan Moreno now says that he had felt pressure from the police to finger Cantu. He says he knew at the time that the police were determined to charge Cantu with the robbery-homicide, and that Cantu had been involved in shooting a police officer. But Moreno says now that he did the wrong thing in falsely identifying Ruben Cantu as the shooter in his case, and that the person who shot him looked nothing like Ruben Cantu.

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. He has given the name of his accomplice to Lise Olsen, reporter for the Houston Chronicle, who claims to have spoken with the named person and believes he has intimate knowledge of the crime. The Houston Chronicle has made an editorial decision not to publish the name of that person because he has not admitted involvement, and has not yet been charged in connection with the crime. It is unclear whether the Houston Chronicle has provided the name of the alleged murderer to the police.


Recent developments;
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. In a December 2005 interview with the Express-News, Millsap expressed a newfound opposition to capital punishment. In that 2005 story, Millsap, 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, "'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, he says, '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."[2]

The current Bexar County (San Antonio) District Attorney, Susan Reed, has indicated to Rick Casey of the Houston Chronicle that she may bring charges against Juan Moreno, the surviving victim in the robbery-shooting, and not against the detectives who allegedly coerced his testimony. In addition, the Houston Chronicle has uncovered evidence that Reed's office may be conducting a bad-faith investigation, prejudiced to support the original conviction of Cantu. Susan Reed was the judge who rejected Cantu's appeal in 1988, and also set his execution date in 1993. As the current Bexar County DA, Reed assigned two investigators, Mike Beers and James Moore, to the case of Ruben Cantu. During the investigation, the two investigators were recorded in a phone conversation ridiculing the case and openly mocking the notion that Cantu might have been innocent. (NAACP Legal Defense and Education Fund summary of the series of Houston Chronicle stories on the issue.)

Juan Moreno, now a building contractor living in east San Antonio with a teenage child of his own, may face homicide charges brought by Susan Reed. Since Moreno's testimony was essentially the only evidence against Cantu, and the implied threats by the police did not technically violate the law, his story of police misconduct has exposed him to the possibility of prosecution for murder by perjury [3]

Quotes:
Cantu "shot an officer who worked with me. It was difficult to get [the witness] to make the identification. We weren't able to get him for the police shooting, but we were able to get him for the murder." — Sgt. Bill Ewell (now retired), who headed the investigation against Cantu. The case against Cantu for the barroom shooting had to be dropped, because police had tainted evidence and illegally searched Cantu's home, rendering the case unprosecutable.

"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. The bottom line is, an innocent person was put to death for it. We all have our finger in that." — Miriam Ward, forewoman of the jury that convicted Cantu.

"It's so questionable. There are so many places where it could break down. 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." — Sam Millsap Jr., the former district attorney who made the decision to charge Cantu with capital murder. He also indicated 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.

Harold Levy...hlevy15@gmail.com;