Ruben Cantu case shows why Texas needs an Innocence Commission

I rolled back into town this afternoon to discover press coverage about a new report by Bexar County DA Susan Reed on the Ruben Cantu case (see prior Grits coverage) that, to me, shows why the Legislature should have acted this Spring to create an Innocence Commission to evaluate such cases.

Cantu was executed 12 years ago, but the sole witness in the case recanted in 2005 saying his original eyewitness identification was coerced by police. The new report concludes the right man was executed for the crime.

However, because DA Susan Reed was at the time the judge in the case who approved Cantu's death sentence, and because from the moment the possibility of his innocence was raised she has been hostile and defensive, it's hard for an outside observer to accept this as the final word.

The report deemed the witness who says his testimony was coerced by the police "not credible," though the same office earlier thought him credible enough to present as a witness in a death penalty case. For that matter, then-Judge Reed at the time considered him credible enough to allow his testimony in court.

But the new DA report claims the man's recanted testimony is tainted because a defense investigator paid $1,700 for meals, a motel room, and lost wages for participating in the investigation. That's silly! Police do the same thing with informants every day, often for much more money than that. That's not reason enough at all to cast his testimony aside. The private investigator in the case, Richard Reyna, a former Sheriff's deputy hired by the NAACP Legal Defense Fund, said of the District Attorney in the Houston Chronicle ("Bexar DA calls investigation justified," June 27):

"She's shameless," ... adding that the report has "discounted, disrespected and insulted" Moreno.

"No fair-minded person could doubt his account that police repeatedly pressured him to falsely identify Cantu," Reyna said. "It is deeply insulting to Mr. Moreno to suggest — as this DA's report does — that he would go out of his way to exonerate the man who killed his friend and who tried to kill Mr. Moreno himself — and very nearly succeeded."

I haven't seen the report, but I've read all the Houston Chronicle coverage that first suggested his innocence, and none of the arguments from Reed presented here make me think she's proven anything one way or another. Said the Chronicle:

The DA's investigation was launched in late 2005, after the Houston Chronicle reported the lone witness in the case, Juan Moreno, had recanted. Moreno survived nine bullets and provided the only trial evidence that tied Cantu to the crime.

The DA's report, however, said that Moreno's current statements "are vague and inconsistent" and that he is unable to provide any significant detail or positively identify the shooter.

The report released Tuesday is based on interviews with 50 people and included evidence from 35 Texas agencies.

While the report relies on conversations with former prosecutors originally involved in the case in 1985, prosecutors did not talk to the district attorney at the time of the case, Sam Millsap. Millsap has publicly called the Cantu case a "mistake" and apologized for it.

Especially given that last fact-bite, it's difficult to believe this report represents a thorough or credible investigation. Why wouldn't they interview Sam Milsap, the DA at the time? Probably because they already knew he disagreed with their preferred conclusion, so it would be inconvenient, to say the least, to solicit his views.

When investigators refuse to talk to people who disagree with them, the result is no longer an investigation, it's propaganda. This illustrates precisely why Texas DAs shouldn't be left to investigate innocence claims in their own jurisdiction - their biases frequently are too strong and overt to create the necessary appearance of objectivity, much less the kind of actual intellectual detachment that should govern such inquiries.

A bill to create an independent commission to credibly investigate such cases cleared the Senate this Spring but died when House Criminal Jurisprudence Committee Chairman Aaron Peña stalled the bill in committee then waited to bring it up for a vote until supporters were gone.

The skeptical reception to this report shows that was a mistake. In Dallas County, District Attorney Craig Watkins called in one of Texas' Innocence Projects to manage such investigations, which gives a much more credible face to the conclusions. A thorough investigation of innocence claims shouldn't be a "maybe" thing, or something that depends on the District Attorneys personal conscience.

Because of her past involvement in the case and her defensive posture, the public cannot trust Reed's results, and even worse, the appearance of putting out a CYA document harms the credibility of her office and the justice system in ways that shouldn't be tolerated.

Since the Lege failed the state by letting the Innocence Commission bill die, for now when innocence claims arise DAs themselves should seek outside investigators like the state's Innocence Projects to vet cases for errors. Especially by comparison with what's happening in Dallas, the way the Cantu case has been handled in Bexar County has done little to clear the air.