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BRANCACCIO: NOW on PBS.

Are innocent people being executed in America?

SAM MILSAP: This whole question of whether Ruben Cantu lived or died hinged in fact on the testimony of a-- of a person who claims today that he didn't tell the truth.

BRANCACCIO: Newly uncovered evidence points to innocence… so how did it happen?

NANCY BAROHN: Do you feel like anyone's taking your issues seriously? Absolutely not. I would get more review on a car theft case than I would on a capital murder case in Texas,

BRANCACCIO: And lobbyist Jack Abramoff pleads guilty and gets set to give explosive testimony about buying votes in Congress with money and favors.

ROBERT SCHEER: They were going to be different than the bureaucrats in Washington. They were against Washington. What do they do? They come to Washington and they are more corrupt than anyone before.


BRANCACCIO: Welcome to NOW.

Hello again, and welcome to a new season of NOW. In that building right behind me, there are some people with a very personal interest in Judge Samuel Alito's confirmation hearings next week

It's the busiest death row in America — a state prison here in Livingston, Texas. In the run-up to the Alito hearings, there's been much talk about saving the lives of the unborn - but let's spend a few moments on the lives of those condemned to death. Judge Alito's previous rulings suggest he would take a hard line. But would it change his thinking if it turned out Texas had put to death an innocent man?

Would it change your thinking about the death penalty? Producer William Brangham and I look at that case and how Texas may be on the verge of doing it again

Among the many convicted murders who've passed through these fences onto the Texas' death row, at least two of them stand out.

While their supposed crimes were committed almost ten years apart, they have at least one thing in common: no physical evidence linked them to the murders that landed them here. Each of their cases hinged instead on the testimony of just one eyewitness. And in each case, that testimony was later totally recanted.

We won't retry these cases here, but taken together, they raise tough questions about the standards we use to impose the ultimate penalty. Are there adequate checks on the process, or does our system of capital punishment sometimes execute innocent people? Has it already happened?

BRANCACCIO: Do you think we have a case here where the state of Texas executed an innocent, juvenile offender?

LISE OLSEN: I think there's a lot of evidence that Ruben Cantu may have been innocent. There are some very, very troubling questions about whether Texas may have executed an innocent man and a lot of people are taking this very seriously.

BRANCACCIO: Lise Olsen of THE HOUSTON CHRONICLE sent shockwaves across Texas two months ago with this blockbuster story: "Did Texas Execute an Innocent Man?"

The story begins here. In 1984, two construction workers were shot inside this house. Each was hit with at least nine bullets. One man died immediately. The other somehow survived.

That survivor would later tell police that the killer was seventeen year Old Ruben Cantu. There was no physical evidence linking Cantu to the murder. But on the strength of that one eyewitness, Cantu was tried, convicted, and executed in 1993.

The CHRONICLE's story unearthed a stunning revelation: that one eyewitness — Juan Moreno — a man still badly scarred from the shooting — was now saying Ruben Cantu was not the man who shot him. What's more, Moreno says he lied on the stand because police pressured him to do so.

"The police were sure it was (Cantu)" he told the CHRONICLE. "They told me they were certain it was him, and that's why I testified… that was bad to blame someone that was not there."

The CHRONICLE's story strongly suggests that the police were eager to nail Cantu because of what happened at this bar. Four months after the murder in the house Ruben Cantu got into a fight and shot and wounded an off duty cop. But because of some apparent police foul up, Cantu walked away scot free.

LISE OLSEN: So, when this new shooting happened, when he shot a police officer, almost immediately they reopened the case of the old murder and refocused their attention on Ruben Cantu.

BRANCACCIO: The San Antonio police repeatedly showed photos of Ruben Cantu to the victim, Juan Moreno.

The first two times, Moreno said the man who shot him wasn't in the photos. But on the third time after Moreno had 'somehow' learned that Cantu had shot a cop Juan Moreno then picked Ruben Cantu as the shooter.

NANCY BAHRON: And that was it. There was no other evidence in the case.

BRANCACCIO: Nancy Bahron is a lawyer who tried to overturn Ruben Cantu's death sentence.

NANCY BAHRON: No circumstantial evidence, no physical evidence, no firearm, no nothing. And that was the entirety of the state's case on a 17-year-old boy.

BRANCACCIO: Bahron appealed many aspects of the case against Cantu, but most importantly: that there was no physical evidence against him. Only the seemingly pressured identification by the victim, Juan Moreno. She lost all of the appeals.

NANCY BAROHN: The sense I got then and the sense I got in subsequent cases is that it's just a buck-passing system. Just get this case out of my court on to the next level with everyone more or less hoping that someone else will be the one to put the brakes on.

BRANCACCIO: The man who ultimately decided to make this a capital murder case was Sam Milsap. In 1985, Milsap was the district attorney for The San Antonio area. And a full-throated supporter of the death penalty.

D.A.'s have a lot of discretion to choose which of their murder cases deserve capital punishment, and Milsap and his team signed off on this one.

But when he looks back now, he's not so sure.

SAM MILSAP: The thing that concerned me most was that we obviously had prosecuted a capital murder case on the basis of the testimony of a single eyewitness.

BRANCACCIO: Milsap now says he would do it differently - quite an admission.

SAM MILSAP: If I had it to do all over again, we wouldn't have prosecuted Ruben Cantu on a capital murder charge. I'd like to believe that even in 1985 that I would have had the good sense and the good judgment to have made that decision. And I didn't.

SUSAN REED: The abolitionists, as far as the death penalty, are using this as a banner case to say we should do all away with capital punishment.

BRANCACCIO: Susan Reed currently hold's Milsap's old job -- D.A. For the San Antonio area.

DAVID BRANCACCIO: Why are you a supporter in a broad way of the state's ability to execute someone who's done something very bad?

SUSAN REED: Well I think it is demonstrative of society's value of life. And also to establishing order. I think that the society should say in certain circumstances we are going to say that this is the worst of crimes and impose that ultimate penalty.

BRANCACCIO: Reed has opened a new investigation into the case against Cantu. She's deeply skeptical of someone who starts recanting testimony they gave twenty years ago. She's confident her investigation it will prove exactly what the San Antonio police have always argued: Ruben Cantu was guilty of murder.

Still, she's agrees this wasn't a great death penalty case.

DAVID BRANCACCIO: Does it trouble you as you look into this case that so much of the case rests on what this guy, a victim in the crime, Moreno, had to say?

SUSAN REED: Sure. One witness to the jury. There isn't the forensics. There's non of that. No 'CSI effect.' No D.N.A. None of that. You're talking about a one witness case. Today,if I were making a decision to go forward for a death penalty, it's not the kind of case I'd take to a jury.

BRANCACCIO: So here's what we know now about the Cantu case. We've got two D.A.S - one then, one now - both saying that if they could do it over, they wouldn't have sought the death penalty against Ruben Cantu. We've also got the eyewitness who fingered Cantu now saying he was innocent. For Ruben Cantu, executed thirteen years ago, all of this comes too late.

But is it too late for this man?

Anthony Graves sits on death row today with questions swirling around his case remarkably similar to Ruben Cantu's: he was convicted of brutal murders. There was no physical evidence linking him to the crime scene. Only the now-recanted testimony of one eyewitness.

ANTHONY GRAVES: So if I'm sitting here behind the eight ball trying to convince you that I'm innocent, but you have a man in a suit and tie with a degree telling you that I'm guilty, who are you gonna choose to believe?

BRANCACCIO: Graves has been living here for twelve years. For prisoners on this busiest death row in America, it is a solitary life… nothing For Anthony Graves but time. Time to think about the system that put him here.

ANTHONY GRAVES: I thought that the laws protect people like me. I'm innocent. But that wasn't the case. You know, it-- as-- as the case went on, I started to better understand that it wasn't even about trying to find who actually did the crime. It was about trying to convict someone of a crime, and I just happened to be the person.

BRANCACCIO: In 1992, in Summerville, Texas, in a house that used to sit on this lot, six members of the Davis family were killed. A grandmother, a teenage girl, and four young children were then doused with gasoline and set on fire.

A man named Robert Carter was arrested when he showed up at the Davis funeral with burns all over his face. He confessed to the crime, but police believed he must have had an accomplice and they pressed him for another name: he gave them Anthony Graves.

ROY GREENWOOD: The state only had one witness to place him at the scene of the crime without any additional forensic evidence to link Anthony there. Yet they stake this entire prosecution on an admitted liar.

BRANCACCIO: Roy Greenwood is yet another in a long line of defense attorneys frustrated when their appeals get turned down. Greenwood is trying to get Anthony Graves off of death row.

ROY GREENWOOD: Anthony Graves is innocent, because the only person, Robert Carter, who said he was guilty, has recanted, taken back, admitted that all of those statements were lies.

BRANCACCIO: After Carter testified against Graves, he told just about anyone who'd listen that Anthony Graves was innocent. He told his lawyers. He told Graves' lawyers. He did an 85 page deposition. he even said it on video for one of Anthony Graves's appeals.

VIDEO: "Anthony Graves did not have any part in the murders and was not present..."

ROY GREENWOOD: And even when Robert Carter was executed, on the day of his execution, before the press and God and everybody, his last statements before he was executed by the state of Texas were Anthony Graves didn't do it.

CHARLES SEBESTA: There is no doubt in my mind that Anthony Graves was involved. I'm comfortable with the evidence that we have. I'm comfortable with the evidence that we presented.

BRANCACCIO: Charles Sebesta was the D.A. who prosecuted Anthony Graves. He acknowledges that his only eyewitness — Robert Carter — has made contradictory statements about who was involved in the murders. But he's sure Carter was telling the truth when he named Anthony Graves in court.

And Sebesta was confident enough in the circumstantial evidence he had to go forward.

CHARLES SEBESTA: We were able to present a case, present the evidence we had and the jury accepted it.

NICOLE CASSAREZ: There is no fingerprint evidence, there's no forensic evidence, there's no DNA, there's no blood-stained clothing. There are not even any murder weapons. There's no physical evidence at all.

BRANCACCIO: Nicole Cassarez is a journalism professor at the University of St. Thomas in Houston. She and several of her students have been looking into the Anthony Graves case for several years. She's alarmed that Graves is approaching execution on what to her feels like thin evidence.

NICOLE CASSAREZ: I mean, we're supposed to reserve the death penalty for the worst of the worst. And so you would think that, you know, the state's case needs to be air tight and solid, and not, you know, based on a house of cards.

BRANCACCIO: Is the case against Anthony Graves solid enough? Here's where things stand: after 5 appeals, he's still on death row. He's just completed what may be one of his last, best chances to prove he deserves a new trial. That ruling will be out in a few months.

The final test of death row convictions has traditionally been the federal courts. According to a landmark study, between 1978 and 1995, those courts found significant problems with more than one out of every three death penalty cases they reviewed.

But over the years, this crucial oversight has been sharply curtailed. Congress has streamlined what it sees as the endless appeals of death-row convictions, dramatically limiting the ability of federal courts to scrutinize cases like these.

NICOLE CASSAREZ: If we're going to have a death penalty, then there has to be a time when we can actually execute the person who's been convicted. But if you are-- are going to cut off the ability of an inmate to appeal his case, then you have to be willing to say, "Maybe we're not gonna get that evidence of innocence brought forward." Because you can't have both. You can't have finality and perfect justice.

ANTHONY GRAVES: If you get caught in the system, it is hard to prove you're innocent. If you're actually innocent, it is very hard because certain things cannot be done. Certain things cannot be reviewed. If you find out information later on in your case, and you try to present it, there are all kind of technicalities to stop the courts from reviewing it. And this is your life.

DAVID BRANCACCIO: The thing about the death penalty is if you get it wrong, you can't go back. It reaches a point in a capital case where doesn't matter if you find out later that justice wasn't served. Does that disturb you-- the possibility for error?

SUSAN REED: Well, I-- I think what we have to do is look at the system. We have a system of justice where we have checks all the way through. We really do. I personally think that our system works. I don't know that we can come up with a better system.

DAVID BRANCACCIO: But you and the citizens of Texas have to accept the notion that it's possible that at some rate, innocent people get executed. And somehow we have to come up with a way to live with that possibility.

SUSAN REED: Well, I'm living with what I do on a day-to-day basis. And I try-- I know how hard I try to make certain that that is not the case. So I just have to have faith in my system is what I have.

BRANCACCIO: But former D.A. Sam Milsap — once such a robust supporter of the death penalty — has lost his faith.

Around the country, the dozens and dozens of exonerations based on DNA prove to him that the criminal justice system routinely snares innocent people.

And he cites the example of the state of Illinois - where a Republican governor looked hard at a series of questionable death row convictions in his state. And said 'enough.' He ordered a moratorium on executions.

SAM MILSAP: You know we talk about the 'pardon after death.' Well, you know I'm sorry, but that's not, that's not a remedy. And it's just final. And so we have to be right. We have to get it right. And if we-- if we-- and we shouldn't accept and be satisfied with a system that does anything other than guarantee that we're gonna get it right.

DAVID BRANCACCIO: There are people who will watch you and say, but he's had full access to the criminal justice system. There's been a-- a trial, there have been other proceedings to try to set the record straight. And justice system still believes that he's guilty. What is the answer to that?

ANTHONY GRAVES: Those are the people that really want us to believe in the criminal justice system. They don't want to believe that the criminal justice system is so fallible that an innocent man can go through a whole appeals process and still be executed. You know? And-- and I understand that. Because I want to believe in my criminal justice system. I need to believe in it because if it actually works, then I'm going home.

The debate over the death penalty continues over on our Web site. Check it out at pbs.org.


BRANCACCIO:

I didn't want the week to go by without perspective on some of the news of the week. Here to help us with that is Robert Scheer, a long-time columnist for The Los Angeles Times and currently a contributing editor for THE NATION magazine.

BRANCACCIO: Mr. Scheer, glad to see you're still keeping busy.

ROBERT SCHEER: Yeah.

BRANCACCIO: Listen. So we have this Jack Abramoff, lobbyist extraordinaire, fund raiser extraordinaire, is pleading guilty to all the stuff. And it looks like you have one of the biggest political corruption cases in a long time brewing in Washington. But you can't be surprised that money mixes in bad ways in Washington.

ROBERT SCHEER: I'm not surprised. But the scale here is shocking. These guys were so arrogant, so corrupt. The amount of money involved with Russian oil, and ripping off Native Americans for tens of millions of dollars-- A the scale. B-- and the scale was possible because they were unchecked. Because we have one party in control. They got drunk on their power. And B, they came in with this great moral aura.

BRANCACCIO: The Republicans did, you think?

ROBERT SCHEER: Yes. And Abramoff is not just some sleazy lobbyist who came from nowhere and hoodwinked some people. He comes out of the Reagan revolution. He's part of the new breed. He was head of College Young Republicans. He was with Grover Norquist, Ralph Reed of the Christian Coalition. These were buddies.

They were going to remake the world, you know. They were going to be different than the bureaucrats in Washington. They were against Washington. What do they do? They come to Washington and they are more corrupt than anyone before. That's what's shocking about this.

And they do it behind the whole religious-- and you know, one of the-- you know, they used, when they favored one Indian tribe against another, they invoked, you know, gambling's bad and this is like pornography. And we have to be against it. So we shouldn't have gambling in Alabama. But on the other hand, we're getting money from the Indian gamblers in Mississippi.

BRANCACCIO: At the same time, they were talking about the moral problems of gambling--

ROBERT SCHEER: They belonged to a group called U.S. Family Network, which talks about improving the moral fitness of the country, operating out of Tom DeLay, the Republican leader's-- the town house that he's operating out of, run by his former chief of staff. So they used the whole moral language of the you know, great new Republican revolution to-- to have the seediest kind of operation.

And you know, if you want to-- if your viewers want to have a crash course, and it's kind of fun to read-- just go to McCain-- John McCain, Senator McCain's Congressional committee, Senate committee. They have a PDF file of the emails and the correspondence. That's why these people pled guilty, by the way. That's why they have to make a deal. Because they were caught, thanks to emails.

BRANCACCIO: So even an old-- old hand like yourself--

ROBERT SCHEER: Yeah?

BRANCACCIO: Reading those emails, you thought it was beyond the pale?

ROBERT SCHEER: What the emails indicate is there's a very definite quid pro quo. And that's what their testimony-- that's what their-- their copping a plea is all about. But the E-mails make it very clear, you know. We're you know, we're in it for the money. We're hustlers. We want to get more. This is a feeding frenzy. We've got our buddies in Congress who share this. This is all-- you know, Scanlon, the first guy who plead guilty on this, was Tom DeLay's press secretary. These are not, you know, guys who came in from the outside.

BRANCACCIO: Because you know, on this quid pro quo thing, at the highest levels-- you have Scott McClellan, the White House spokesman, talking about this this week. He says quote, "If someone thinks money is going in the door with strings attached, it doesn't get in the door," he promised.

ROBERT SCHEER: Oh, what a lot of crap. I mean, why are the Republicans in power? They're better at fund raising than the Democrats. That's the main reason they got into power. They got in-- so they're playing both sides against the middle. They say, well, we're going to clean up Washington. And then they've got their hand out for everyone from Enron to Halliburton to Indian tribes that want to do gambling. So that's just nonsense.

But if you look at where this extends, you already have the top procurement officer in the White House been indicted. You have the stuff to do with Indians, has to do with the Department of Interior. Extends right into the Bush administration. And I'd like to point out that Jack Abramoff, the guy with the fedora who looks like a gangster now, he's one of the Bush pioneers. He's one of the major fund raisers for President Bush, you know. He's a man celebrated in those circles.

BRANCACCIO: And now there's a -

ROBERT SCHEER: And there are testimonials to him -

BRANCACCIO: One of my favorite words of the week, I must tell you, is disgorge. And you're seeing politicians disgorge the money that's connected to Abramoff, his lobbying firm, and some of their clients.

ROBERT SCHEER: Right.

BRANCACCIO: You have President Bush disgorging $6,000. You know, someone who hasn't disgorged money is a Democrat, Senate Minority leader Harry Reid. And this suggests to some-- and you're going to hear the Republicans say this-- that this is a scandal that touches both parties.

ROBERT SCHEER: Well, there's no question that there's corruption in both parties. I'm not going to say whether Reid is corrupt. But-- but there's no question that this is not-- was not invented by the Republicans, does not extend only to Republicans. Most people in Washington are on the take or paying out to those who are on the take. I'm not going to deny that. I'm just going to say that the scope of this is-- is far beyond anything we've seen in-- in our modern history. You'd have to go back to Teapot Dome or something to find a comparable example. And I think the reason it got so out of hand, so wild, such huge amounts of money, is because you didn't have a check of the other party. You didn't have checks and balances.

And so, these guys thought they could just do anything. That's the real lesson here. That democracy works when you have checks and balances, when you have an opposition party.

BRANCACCIO: Well, Bob. Thank you very much.

ROBERT SCHEER: Thank you for having me.

BRANCACCIO: Robert Scheer is also the Editor-in-Chief of the new online magazine truthdig.


BRANCACCIO: And next week on NOW we take a look at how America's spies are doing.

President Bush authorized a secret program to listen to phone calls and read e-mails… but does the president have the power to bypass the courts and the congress?

BOB BARR: What is shameful here, is the fact that the administration appears to be have been violating the law.

BRANCACCIO: And that's it for NOW. From Livingston, Texas, I'm David Brancaccio. We'll see you again next week.


Connect to NOW online at pbs.org.

Are Anthony Graves and Ruben Cantu innocent? More on their cases.

Join the death penalty debate

Read more From Robert Scheer

Connect to NOW at pbs.org.



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