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
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
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?
Do you think we have a case here where the state of Texas executed an innocent, juvenile offender?
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.
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.
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.
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.
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.
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.
Why are you a supporter in a broad way of the state's ability to execute someone who's done something very bad?
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.
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?
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.
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.
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.
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.
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.
"Anthony Graves did not have any part in the murders and was not present..."
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.
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.
We were able to present a case, present the evidence we had and the jury accepted it.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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?
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.