The execution next week of Texas inmate Ivan Cantu has been halted pending review of new revelations in his case, a source close to his legal proceedings tells Houston Public Media.
A district court in Collin County ordered his execution date be withdrawn, saying “additional proceedings are necessary” in his case.
Less than 24 hours after his attorney filed a clemency petition that outlined new developments in his case, 380th Judicial District Court Judge Benjamin A. Smith ordered the execution date withdrawn.
The new developments cited in the petition include a trial witness recanting his testimony and a pair of jurors in his 2001 trial coming forward to express concerns about his conviction.
One of them was Montra Marie Biggs:
“I am disturbed by the possibility that false testimony and evidence was presented to me and the other jurors at trial,” Biggs said in a declaration signed on April 2, 2023. “As a juror who served in this case, I do not want to see Mr. Cantu executed without getting a full hearing on this new information.”
Texas planned to execute Cantu on April 26 for the murder of his cousin, James Mosqueda, and his cousin’s fiancée, Amy Kitchen, in the Dallas area in 2000. A jury found him guilty in 2001.
In the two decades Cantu has been on death row, numerous questions have been raised about evidence used to convict him, the performance of his court-appointed defense attorneys, and the performance of his court-appointed state appeals attorney that prevented his claims about the trial attorneys from being heard by federal courts.
The star witness in Cantu’s trial was his own fiancée at the time, Amy Boettcher. She testified Cantu commited the crimes, stole several items from the victims’ home — including a Rolex watch — and took her back to the crime scene later that night.
Boettcher’s brother, Jeff Boettcher, also testified Cantu talked to him about his plans to commit the murders and he identified a gun purported to be the murder weapon as belonging to Cantu.
However, in the years since conviction, proof has surfaced that Amy Boettcher lied about some elements of her testimony. For one, the Rolex watch was found to be in the possession of a family member and not stolen. She is now deceased. Also, in the last year, Jeff Boettcher approached the Collin County District Attorney’s Office wishing to recant his testimony, citing his drug use at the time.
Those facts are among the many items cited in Cantu’s clemency petition filed this week by his current attorney, Gena Bunn.
Nearly 20 years after Cantu’s conviction, podcaster and private investigator Matt Duff came across his case. When he took a closer look, he thought there were some lingering questions – including whether Cantu was truly guilty.
He began his own investigation, searching for more proof of either – in what became a lengthy podcast series called Cousins by Blood.
Duff reinterviewed witnesses, chased down new leads, talked with people Cantu's attorneys never interviewed, and enlisted the help of experts in forensics. While he didn't find a new smoking gun to prove Cantu committed the murders, he did uncover some things – and other elements have come to light since – that some people say raise concerns about whether he received a fair trial and adequate legal representation, rights outlined in the Sixth Amendment of the U.S. Constitution.
Abraham Bonowitz is one of those people. He's the executive director and co-founder of the group Death Penalty Action, which has been organizing demonstrations on Cantu's behalf since the case got on its radar.
"In the last month or so, we’ve been able to really sink our teeth into this, come to understand it much more, and recognize that this is a very real concern about Ivan’s innocence," he said.
In November of 2000, Mosqueda and Kitchen were found shot to death in their home in a north Dallas suburb. Police soon focused on Cantu, Mosqueda's own first cousin.
When Cantu was charged with capital murder, he couldn't afford an attorney. So, like many defendants, he was represented by defense attorneys appointed by the court — public defenders.
Cantu pleaded not guilty and, for more than two decades since, has maintained his innocence.
"I know that, at first glance, people they think the worst," Cantu said in an interview with Houston Matters producer Michael Hagerty from death row in July of 2022. "And if they will just look at the facts, look at the case that was presented to the jury and what was withheld from my defense, they'll clearly see that I'm an innocent man, and I do not belong here."
CANTU’S 2001 TRIAL
Regardless of his guilt or innocence, will the new evidence ever get heard? And did Cantu receive a fair trial? Those are complicated questions, ones that illustrate a procedural barrier that often keeps many inmates facing execution from having some of their legal concerns heard.
To explain, we need to go back to Cantu's trial and the appeals that came after it.
First to the trial: One of the main ways someone in Cantu's situation can appeal their conviction is to claim ineffective counsel. Under Texas law, a defendant must show their attorney or attorneys made serious mistakes and failed to meet some basic requirements.
In any criminal trial, after prosecutors representing the state present their evidence and witnesses, the defense is allowed to present its case for innocence – presenting evidence of its own and calling more witnesses.
But, when that time arrived in Cantu's trial, his court-appointed attorneys declined to do any of that.
To an outside observer, like Bonowitz, it sounds egregious.
"This is the United States," he said. "You’re supposed to be able to call witnesses in your defense. And, for whatever reason – which nobody seems to be able to answer for me – that the defense never called a single witness. And why would you do that?"
But there are some reasons a defense team might choose that as a strategy, according to Kenneth Williams. He's a professor at South Texas College of Law Houston. He's spent some 25 years working predominantly on criminal appeals for inmates on death row.
"[The] attorney might decide, ‘Okay, well, there’s no way I’m going to get an acquittal in this case," he said. "And, if I argue he didn’t do it where there’s all this evidence against him, then I’m going to lose credibility for the punishment phase when I’m arguing to save his life."
And because one defense team might try that approach while another might not, Williams says the courts, when considering whether an attorney's actions met the criteria for ineffective counsel, have typically avoided wading into the murky waters of which defense strategy would've been best.
"They don’t want to – quote unquote – ‘Monday morning quarterback' the decision of the attorney," Williams said. "It’s easy to sit back in hindsight and say, ‘Oh, he or she should have done this. They should have done this.' And the court said, ‘No, we’re going to look at the situation they face. Did they make a reasonable strategic decision? And, if so, we’re just going to defer to that decision.'"
Instead, the courts, like the Texas Court of Criminal Appeals in this instance, will consider whether defense counsel failed to perform some basic duties expected of them, like communicating with their client.
"You’d be surprised at how often that may not happen," Williams said. "One of the biggest duties that an attorney has is to investigate, to look into the facts of the case. And to talk to witnesses. And to review maybe the evidence that the state is offering against the defendant. And to be familiar with the law. To do legal research where it would be a warranted."
Williams mentioned interviewing witnesses, and that could be important to Cantu's case. His defense attorneys never interviewed any of the people on the state's witness list prior to his trial.
"So yeah, that would be problematic. Again, though, you’d have to show that his failure to do that had an impact on the outcome of the case," he said. "So, that alone does not mean that he would prevail."
And, in the closing arguments of Cantu's trial, one of his defense attorneys – a man by the name of Matt Goeller, whose license to practice law in Texas has since been revoked – conceded his guilt.
"I didn't say he was innocent. I said he's not guilty of capital murder," Goeller said, according to court filings that cite transcripts of Cantu's trial.
Again, an outside observer might see that as egregious for a defendant who pleaded not guilty and took his case to trial. But Williams says, again, it could be a strategy.
"I would imagine in the Cantu case, the attorney probably would argue there was a strategic decision," he said. "'We’re trying to save his life, so we’re going to concede his guilt.'"
And legal precedent indicates an attorney doing so is only a problem if the defendant objects to that being done – either in conversation or correspondence with his or her attorney or in court. There was a time during the trial when Cantu considered firing his defense team and defending himself, but he eventually opted not to.
Also, there was a moment in the trial where it came to light that the lead detective on the case had several binders of information from his investigation that he never turned over to the defense, which Cantu's entitled to.
QUESTIONS ABOUT THE PHYSICAL EVIDENCE
Since Cantu's been on death row, the podcast helped call into question some of the physical evidence used to convict him. A former police officer has stated that a pair of bloody jeans found in Cantu's home were not there when she initially entered his apartment to conduct a wellness check immediately after the bodies were discovered. And therefore, they had to have been placed there later by someone else when Cantu was out of town.
Those jeans, by the way, proved to be two sizes larger than what Cantu wore at the time, and DNA testing in recent years failed to establish that he was indeed the person who wore them.
"So, there’s all these things that have to lead to the question of, ‘Is there a knockout? Or is there actual innocence?'" Bonowitz of Death Penalty Action said. "And how can we know without the courts examining the evidence that’s been gathered since the conviction?"
Those revelations led to the statements from former jurors.
"And when you have jurors coming out and saying, ‘Wait a minute, this is not what we heard in court, and this ought to be looked at' I think that that should wake people up," Bonowitz said. "Because they always say, you know, ‘He had a jury of his peers,' and well now you have several members of the jury saying ‘hold on.'"
So, Cantu and his current attorney want to challenge his case on those two fronts. One being those new revelations. They hope the Court of Criminal Appeals will grant a hearing where all of that could come up. And the other one being the performance of his defense attorneys at trial.
"Coming down to it, really no court has ever reviewed the performance of Ivan's trial attorneys at the guilt/innocence phase, at least not on the merits," Bunn said in an interview for the Cousins by Blood podcast.
PROCEDURAL RULE CREATES A BARRIER
So, why not? Because of something called the procedural default rule. A quick explanation here: After Cantu's trial, he had another court-appointed attorney to file his appeal, a woman named Jan Hemphill. As Cantu told Hagerty in an another interview last November, he had to hound her with letters and faxes before she finally came to meet with him.
"She told me that she's an old woman. She doesn't have the strength – and this is a previous judge. She's a previous judge. She didn't have the strength. She didn't have stamina. And she doesn't have the resources to handle this type of case and the magnitude of this investigation. She doesn't have the oomph in her. She was honest with me, and I said, ‘Well, Jan, what are we going to do?' She said, well, she's going to have to just do the best she can. And that's not good enough."
Hemphill tried to be removed from his case citing her age, but the judge wouldn't allow it. Instead, she shifted her efforts to try and spare his life by making claims about Cantu's mental health.
And here's where this case runs head-first into that procedural default rule. The appeal she filed did not address any of his claims about ineffective defense counsel. And the rule says if a prisoner like Cantu doesn't bring up concerns like that in his state appeal, they're then barred from being reviewed by a federal court.
"So, then the federal court said, ‘Well, you didn’t raise those claims. They were procedurally defaulted,'" Williams said. "So, the merits of those claims never actually got considered in Mr. Cantu’s case."
Williams says a federal court can overlook the procedural default for specific reasons, such as an attorney falling ill and being unable to file an appeal. But that didn't happen in Cantu's case. So, a district court dismissed his federal appeal, and the U.S. Court of Appeals for the Fifth Circuit upheld that.
"She should've raised these issues, and her failure was, in fact, itself ineffective assistance," Bunn said. "And, on that basis, the federal court should have reviewed these claims."
So, how often does a procedural rule like this prevent someone behind bars – possibly facing execution – from having certain elements of their case heard in court? Williams says more than you'd think.
"I’ve seen it quite a bit where there is a claim that could be meritorious, and the court said, ‘No, we can’t. Our hands are tied. We’re not going to be able to consider this claim on the merits,'' he said. "And that's it. Close the book, and that's the end of it."
"And the courts won’t even look at it, because all they care about is, ‘Did we cross all the T’s and dot all the I’s and was everything filed on time?' And that’s un-American, to me. But that’s how the courts are acting," he said. "And I think that people should be concerned about that. If we're going to have executions, we ought to make absolutely sure that the person is guilty."
So, Cantu and his attorney rest their hope on several potential outcomes. And with this week’s stay of execution, there’s at least more time for the new issues to be reviewed. One hope is the Texas Court of Criminal Appeals would grant an evidentiary hearing where Bunn would be able to challenge the veracity of some of the key evidence jurors were convinced made Cantu guilty and to confront witnesses in the case in ways his original trial attorneys did not.
"And everybody that we're going to discredit is going to be on that stand," Cantu said. "And she'll be able talk to them, ask them questions…confronts everybody that took that stand and lied."
There are some other possibilities in cases like this. The governor has the power to temporarily delay an execution for 30 days or to offer clemency – reducing a death sentence to life in prison instead. Since 1976, Texas governors have only done that three times, according to the Death Penalty Information Center.
Bonowitz says executions sometimes can be halted, including recently in the case of Melissa Lucio, whose execution the Texas Court of Criminal Appeals stopped after international outcry over her potential innocence in the death of her 2-year-old-daughter.
But, he says, a lot of times it comes down to the wire death penalty cases.
"Suddenly, the Texas Court of Criminal Appeals grants an evidentiary hearing and keeps it off the desk of the governor," he said. "But it’s going to take quite a bit of public pressure, a lot of people calling the governor and saying, ‘Hey, hold on. There’s too much doubt here' in order to get this halted. But, if it is halted and an evidentiary hearing is granted, then we could see Ivan Cantu be freed."
A DIFFERING OPINION
Meanwhile, there is a whole other side to this: the people who believe Ivan Cantu is guilty. I spoke with a representative of the Collin County District Attorney's Office, which prosecuted him and moved for his execution date to be set. They declined to be interviewed on the record for this story, citing the ongoing nature of the legal case.
I also exchanged emails with a close family member of victim James Mosqueda. They asked not to be identified and said:
"There is no winner in this. The needless loss of lives that led to this left three families forever saddened. I do believe justice will be served, and true healing will take a lifetime."