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Wednesday, August 02, 2006

Has the Bexar County DA's office already made up its mind on Cantu?

Investigators from the DA's office looking into Ruben Cantu's
wrongful execution seem to have already made up their minds that
witnesses, who happen to be ex-cons, are "liars" and anyone,
such as Cantu's surviving family, who bring a wrongful execution suit
against SAPD, the DA's office, and/or TDCJ are "money-grubbing...bastards".

You can see this bias against those from the criminalized
classes all the time. It was present in the Rodney Reed trial and many others.
Certain groups, such as young black men and young, poor Latinos, are
incarcerated at much higher rates than other segments of the population.
If, therefore, you are a young Black or Latino man, like Reed or Cantu,
your friends and personal contacts, the only people usually
who can testify as to your whereabouts or facts concerning your personal life,
such as the existence of a sexual relationship, are probably going to be
young Black and Latino men, and because of the high incarceration rates,
they are more likely to have criminal records. This itself, whether
or not it is related to the crime or relevant in any way, automatically
discredits them and makes them bad witnesses.

Therefore, accused people from these groups are more likely to be
impeded in their ability to provide "believable" witnesses than
middle-class whites in both the trial and the sentencing
phases before the trial court. This is just another way racism
is a decisive factor in who becomes a victim of the criminal justice
system in the US today.


Candid phone calls cast doubt on Cantu review
Investigators are heard mocking the claim of wrongful execution, but DA
denies any bias

By LISE OLSEN and MARO ROBBINS
Copyright 2006 Houston Chronicle AND San Antonio Express-News

SAN ANTONIO - The Bexar County district attorney's investigation into a
possibly wrongful execution had barely started earlier this year, but
already
DA investigators were scoffing at the three witnesses who contend Texas
sent
an innocent man named Ruben Cantu to his death.

"They're lying. They're all lying, and they know they're lying," Mike
Beers,
the senior DA investigator, told the retired sergeant who drove the
homicide
investigation against Cantu and whose actions, along with other
officers in
that case, are under review by the DA's office.

That was in February, before DA investigators had spoken with two of
the three
witnesses who say Cantu was innocent. By March, another top
investigator was
forecasting the outcome:

"It's going to go forward with the fact that it was justified and
everything
was correct, and that's the way it is," James Moore, one of the primary
DA
investigators on the case, told Bill Ewell, the retired sergeant, on a
routinely recorded phone line March 7.

Obtained through a public-records request, these recorded conversations
open a
window into one of the highest-profile and politically polarizing
investigations under way in Texas, a review of allegations that the
state made
a mistake when it executed Cantu for a 1984 robbery and murder.

Both DA investigators ridicule the case and openly mock the notion that
Cantu
might have been innocent. They describe the witnesses as liars and
bastards;
one dismisses the possibility of a future wrongful-execution lawsuit as
"chicken shit."

Together, the recorded statements stand in contrast to public
assurances that
the Bexar County DA's Office will fully and fairly examine assertions
that
Cantu played no part in the 1984 robbery that left one man dead and
another
bleeding from nearly a dozen wounds.

A spokesman for District Attorney Susan Reed characterized the
conversations
as harmless "shop talk" and speculation, sprinkled with the salty
language of
tough cops. First Assistant District Attorney Cliff Herberg said any
doubts
about the case are natural, because two of the witness who vouch for
Cantu are
ex-convicts and liars.

Herberg said the investigators did not disclose any confidential
information
or violate ethical rules and would not be disciplined. Yet, he did say
he
regretted the remarks had been made on a publicly recorded telephone
line
because they could imply that his office had "prejudged the case."

"We want people to have confidence in the integrity of the
investigation. This
obviously does not help that," Herberg said. "But all of the people
that are
involved are professionals ... and they will do the job that needs to
be done
to the best of their ability regardless of what their personal opinions
may be."

Several ethicists and lawyers asked to review the information are more
skeptical.

"I do think (the DA) needs to determine whether or not the lead
investigators
have done a good job, based on these phone calls. Because it sounds to
me that
this important team has prejudged the case," said Linda Eads, an
ethicist and
former prosecutor who is chairwoman of the professional disciplinary
rules
committee for the State Bar of Texas.

Investigators Beers and Moore work under the direction of Herberg and
other
attorneys in the DA's office. Through Herberg, both refused to comment
but
stressed they had done nothing improper. Herberg quoted Moore as
saying:
"There is no conspiracy by us to cover up any actions by anybody."
Ewell,
through an attorney, also declined to comment.

At the time of the conversations, Ewell served as police chief for the
North
East Independent School District, which routinely records calls on its
police-department phone line. Ewell, who is now retired from the school
district as well as the San Antonio Police Department, is not the
target of
any criminal investigation, Herberg said, though the actions of
officers
involved in the Cantu case are under review.

'They're all lying'
In 1985, it was Ewell and his detectives who, on the third attempt,
obtained
the key evidence against Cantu, an eyewitness identification from the
lone
surviving victim of the robbery, a witness who now says police
pressured him
to identify Cantu.

Reed reopened the case in December after the Houston Chronicle
published
wrongful-execution claims made by the shooting victim, along with
Cantu's
convicted co-defendant and a potential alibi witness who says Cantu was
in
Waco stealing cars about the time of the murder.

Reed testified in June that she hadn't formed any conclusions, but
months
earlier, her senior investigator already had given his opinion.

"They're all lying," said Beers, the DA's senior investigator, in that
February phone conversation.

"Yeah, I think so. I mean I know so," Ewell replied. "But, I mean, I
hope the
DA knows that."

"Oh yeah," Beers assured him. "All they're just trying to show is that
... the
case was handled ethically and it was done correctly."

A month later, Moore, the head investigator in the DA's
white-collar-crime
section, gave Ewell information and advice.

In one conversation, Moore, who informally interviewed Cantu's
co-defendant
David Garza, dismissed Garza with an expletive. In another call, he
predicted
the investigation would prove everything was "justified" and "correct."

In an interview, Herberg, the first assistant district attorney, said
that he
understood Moore's dislike of Garza, a convicted felon who through the
years
has flip-flopped about what happened the night of the murder. But
Herberg said
Moore's "forward looking" and "optimistic" prediction about the case
was
premature and did not reflect his bosses' views.

"We're not ready to make that kind of statement," Herberg said.

Legal experts and attorneys for the witnesses have challenged the DA's
objectivity in the case because in her previous job as judge, Reed
denied one
of Cantu's appeals and set his execution date. But no one has
previously
questioned the staff's conduct in the case.

Beers is a former motorcycle cop and mayoral driver who joined the SAPD
in
1969, two years after Ewell. The former colleagues occasionally lunch
together, according to the taped conversations.

Five days after his formal interview with the DA's office about the
Cantu
execution, Ewell invited Beers to lunch. Ewell told his friend he
wanted "to
see what you've heard."

Beers oversees all DA investigators but has played only a minor role in
the
Cantu review — retrieving some documents — and would know only what he
read in
the newspaper or heard around the office, according to Herberg. Still,
when
Ewell worried aloud about whether the Cantu case might later result in
a
wrongful-death lawsuit, Beers replied:

"That just tells me a whole lot about people like that. Y'know, just
money-hungry sorry bastards."

Police not suspects
Moore had been the one who formally interviewed Ewell for the Cantu
investigation Feb. 1. After that, Moore talked with Ewell on the phone
several
times.

On March 28, Ewell had a question for Moore.

"Am I being investigated, or what are we doing here? That's, that's my
concern," Ewell said. "Does the DA's office think that I'm guilty of
some
wrongdoing?"

"No," Moore said. "Not that I'm aware of, no."

Later, Moore added , "There's no investigation by us ... or anybody
else that
I'm aware of."

What Moore meant, Herberg said in an interview, is that the police
officers
are not suspects because the recanting eyewitness, Juan Moreno, who has
not
been interviewed by the DA's office since the case was reopened, has
never
publicly claimed that police did anything illegal.

But the DA has said Moreno could be prosecuted for the unusual crime of
murder
by perjury if he lied during Cantu's trial.

Ewell began contacting friends soon after the Chronicle and San Antonio
Express-News published investigations about new innocence claims in the
Cantu
case in late November, recordings show. He called the outgoing SAPD
chief, a
couple of deputy chiefs and the former judge in the Cantu trial, Roy
Barrera
Jr., among others.

First of many conversations
Ewell, who has refused to give an interview about his role in the Cantu
case,
gave his official sworn account to the DA's office Feb. 1.

The meeting introduced Ewell to Moore, who had joined the DA's office
after
years as an investigator with the state pharmacy board. Other calls
followed.

In one conversation, Moore described his informal interview with Garza,
one of
the men who now claims Cantu was wrongly executed.

Garza was convicted at 15 of being Cantu's accomplice in the 1984
murder and
robbery of a Mexican-born contractor. He originally pleaded not guilty,
later
entered a guilty plea on the robbery charge but never testified about
the murder.

Last year, Garza signed a sworn statement saying Cantu was innocent and
named
another teen as the killer. But when the DA's team went to interview
Garza,
then in prison for an unrelated crime, he initially refused a
lie-detector
test, Moore told Ewell.

"We went down there and interviewed that little bastard," Moore,
laughing,
told Ewell. " ... He's very anti-death penalty."

In an interview, Herberg said he understood Moore's low opinion of
Garza.

"David Garza is an admitted Mexican Mafia member. He's an admitted
liar. He's
an admitted participant in a capital murder. He's a three-time
convicted
felon," Herberg said. "What would you call him? I would not call him a
Boy Scout."

Garza refused to cooperate with the DA's office when he was in prison
because
he claimed its investigators and prosecutors are biased.

Now out on parole, Garza gave an interview to the DA's office June 28
after
having been summoned to testify in front of a grand jury.

In another March conversation, Moore called Ewell to give him a
"heads-up" at
Herberg's direction. A Chronicle reporter had requested the DA's file
on the
1981 robbery in which Ewell and others arrested two innocent people.

Moore told Ewell that reporters were "trying to smear you ... is what
it looks
like, trying to ... raise a bunch of doubt and all this stuff."

"Well, how does Judge Reed feel about me?" Ewell asked.

Moore again reassured him. "She doesn't pay any attention to that."

Reed refused to be interviewed for this report through Herberg, her
spokesman.

Defending the investigation
Instead, Herberg offered a nuanced defense of the investigators in a
two-and-a-half-hour interview about the recordings, which the
newspapers
provided for his review.

Herberg said he agreed with most of what the investigators said but
described
their remarks as idle speculation that doesn't warrant public airing.
He also
insisted that the investigation's outcome has not been predetermined
even as
he acknowledged that some in the office may have a bias toward Cantu's
guilt.

The investigators also have another predisposition: They're reluctant
to
believe ex-cons who, presumably, aim to discredit or abolish the death
penalty, he said.

"The problem with this article is it's going to make out this point
that
somehow this has been prejudged. ... We're looking at everything,"
Herberg
stressed. "But we are adults, we do have a little experience here and
didn't
fall off the turnip truck yesterday."

He said officials have yet to speak to the most intriguing witness,
Moreno.
Unlike the others, Moreno isn't an ex-con. Instead, he's a shooting
victim who
visibly bears the scars of the attack and whose testimony put Cantu on
death row.

In the recorded conversations, investigators also dismissed Moreno as a
liar
or speculated he'd been hoodwinked into recanting.

But Herberg insisted that no one's mind is made up.

"I hope, at least, the article conveys we understand the sensitivity of
the
investigation," he said. "I wish these (recordings) were not public. I
wish
they had not occurred. But that said, the officers can do their job.
And will
do their job."
- - - - -
lise.olsen@chron.com
mrobbins@express-news.net

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