North Texas man running out of time to avoid death chamber amidst doubt

State authorities are set to transport death row inmate Ivan Cantu from the Allan B. Polunsky Unit to the infamous Huntsville Unit in Texas in 20 days. This journey will take him past newly constructed vacation homes on Lake Livingston and along wooded roads in East Texas. However, there is uncertainty surrounding Cantu’s third execution date, as his previous two dates were canceled.

Almost a year ago, a last-minute appeal highlighted false testimony during Cantu’s 2001 trial, leading a Republican judge to postpone his execution in April 2023.

Cantu, who is 50 years old and was sentenced to death for the murders of his cousin James Mosqueda and his cousin’s fiancée Amy Kitchen in 2000, claims that new evidence post-trial, including a witness confessing to lying during testimony and the discovery of a watch Cantu was accused of stealing, is sufficient to overturn his conviction.

Despite Cantu’s legal team and private investigators uncovering these details and others in recent years, neither state nor federal courts have examined the increasingly substantial evidence challenging his guilt. After last year’s postponed execution, the Texas Court of Criminal Appeals dismissed Cantu’s request for an evidentiary hearing without providing an explanation for the rejection.

In an interview from death row, Cantu expressed his frustration, saying, “You made the touchdown, but you’re out of bounds.”

Cantu’s legal team argues in court filings that there are numerous irregularities in his case that warrant a new trial. Several jurors from Cantu’s original trial have stated their opposition to his execution. The Texas Board of Pardons and Paroles, known for its lack of leniency towards inmates, does not give Cantu much hope with his recently filed clemency application. Furthermore, the dismissal of his appeal by the criminal appeals court last year complicates his ability to seek relief through federal courts.

As of now, Cantu’s execution is still scheduled for February 28, which he finds bewildering. He remains confident in his attorney’s expertise, but laments the constraints imposed by existing court rules and laws.

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Cantu was convicted in 2001 for the murders of Mosqueda and Kitchen in Dallas. Prosecutors relied heavily on the testimony of Amy Boettcher, his fiancée at the time. She claimed Cantu committed the murders and brought her to the crime scene before they traveled to downtown Dallas. Prosecutors also presented bloody jeans found in Cantu’s kitchen and a Rolex watch, supposedly stolen by Cantu, as evidence.

New information casting doubt on Boettcher’s testimony has since emerged. An affidavit from a police officer who performed a wellness check at Cantu’s residence after learning of his cousin’s death stated that she did not see blood-soaked clothes in the trash can. Cantu and Boettcher were out of state at the time. Cantu argues that this affidavit, provided by the officer in 2020, proves someone planted the clothes in his home to frame him.

In addition, Cantu’s legal team discovered in 2019 that the Rolex watch was returned to Mosqueda’s family after it was found at the murder scene.

During the trial, Amy Boettcher’s brother, Jeff Boettcher, testified against Cantu, claiming that Cantu confessed to him and asked for help in cleaning up after the murders. However, in 2021, following Amy Boettcher’s death, Jeff Boettcher recanted his testimony, admitting that he had lied due to personal issues and drug use during the trial. He expressed remorse for the role his false testimony played in Cantu’s death sentence.

Gena Bunn, Cantu’s attorney, questions the foundation of his conviction, asking, “What is holding this conviction up?” She intends to appeal to the Collin County district attorney’s office and request a reevaluation of Cantu’s case in light of these recent developments.

Although family members of Mosqueda and Kitchen were not available for comment, there is still support for Cantu’s execution from the Amy Kitchen Emergency Fund, a fundraising group established in memory of the victims.

In April of last year, Cantu filed a subsequent writ of habeas corpus, asserting his wrongful conviction based on false testimony from the Boettchers. The day after the appeal, Judge Benjamin Smith, a Republican state district judge, withdrew the execution court order, stating that the new arguments merited further review. Previously, in 2012, Cantu’s execution date was rescheduled due to ongoing federal litigation.

Nevertheless, the Texas Court of Criminal Appeals, the state’s highest criminal court, dismissed Cantu’s appeal without considering its merits four months after Judge Smith postponed the 2023 execution. The court’s dismissal did not elaborate on why the Boettchers’ testimony should not be reevaluated but mentioned that Cantu’s request for a hearing failed to meet the requirements for review.

Cantu’s lawyer, Bunn, says the courts interpreted the state’s strict parameters for subsequent appeals narrowly. This interpretation, along with the court’s dismissal based on state law rather than federal issues, hampers Cantu’s ability to seek relief through federal litigation.

However, Cantu plans to pursue relief in federal courts and has until February 14 to file further litigation with the state’s highest criminal court. His legal team has also submitted a clemency application.

Furthermore, Cantu has requested evidence and notes from the state’s ballistic expert, who testified during the trial that a bullet found in Cantu’s apartment wall matched the same gun used in the murders. A group of concerned experts, along with private investigator Matt Duff, recreated Cantu’s apartment exterior wall, highlighting discrepancies between a test bullet and the bullet presented as evidence in the trial. These discrepancies aim to expose issues with the original investigation.

Stewart Fillmore, a former special agent with the Federal Bureau of Investigation, noted inconsistencies between the two bullets, including deformities caused by the impact and differences in the size of the bullet hole in the wall.

The Collin County district court dismissed requests to release the ballistic expert’s notes and related evidence.

Bunn, who has spent over a decade working on capital cases, argues that Cantu’s former attorneys failed him in various ways. She highlights their lack of a defense investigator and their failure to present expert witnesses to challenge the prosecutors’ case. She also points out that Cantu’s trial occurred before the passage of the Michael Morton Act, which requires prosecutors to provide evidence beyond the constitutional requirement if it is “material either to guilt or to punishment.” Bunn claims that the district attorney’s office did not release all offense reports or witness statements until the trial.

Several jurors who sentenced Cantu to death over two decades ago now support halting his execution. They have been swayed by new evidence presented in Cantu’s appeals. Jeff Calhoun, the jury foreman in Cantu’s 2001 trial, wrote to the state indicating his belief that perjury occurred during the trial and that new information casts doubt on the fairness of the trial.

While Cantu sympathizes with Mosqueda and Kitchen’s families, he believes it is the responsibility of the Collin County district attorney’s office to find the true perpetrator.

“The worst thing is that I know 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,” said Cantu, contemplating the possibility of a successful appeal. “But will the court do the right thing and grant me relief and allow me to go to an evidentiary hearing in the courtroom?”