Day: January 11, 2024

Texas Death Row inmate Ivan Cantu faces 3rd execution date, maintains innocence

January 11, 2024

Texas death row inmate Ivan Cantu is now facing his third scheduled execution date after the Texas Criminal Court of Appeals denied him a new trial following his filing of a petition to present new evidence in his case.

Cantu has been on death row for over two decades for murdering his cousin, James Mosqueda, a known drug dealer, and his cousin’s fiance, Amy Kitchen, in 2000. 

Since Cantu’s conviction in 2001, new information and holes in the state’s case raise questions of reasonable doubt, according to Matt Duff, a private investigator who has researched the case since 2019. The new developments in Cantu’s case included a trial witness recanting his testimony and a pair of jurors in his trial coming forward to express concerns about the conviction.

Duff documented his private investigation and created a lengthy, in-depth podcast titled “Cousins by Blood.” His work dives into Cantu’s case with first-hand interviews, including Cantu’s early jail tapes in 2000 and an interview with the state’s star witness that helped put him on death row. 

Ivan Cantu has been given two prior execution dates, but both have been halted. 

In 2022, after the DNA hearing concluded, Cantu received an execution date for April 2023. But Collin County District Judge Benjamin Smith withdrew that death warrant after Bunn filed her appeal outlining the new evidence.

Then, on August 23, a judge dismissed the new evidence for procedural reasons without considering the merit of her arguments. 

This month, Bunn filed a new request with the court to reexamine the ballistic evidence in the case since Duff and other investigators have conducted their own ballistics experiments that cast more doubt on some of the police’s original conclusions. 

To this day, Bunn doesn’t know if she has received everything related to Cantu’s case from the Collin County District Attorney’s Office and from the Dallas Police Department. Part of the issue is that 20 years have passed since the original trial, and many people currently working in those departments weren’t around then. Another issue was jurisdiction—Dallas police, then and now, don’t usually work with Collin County prosecutors—but the murders happened in a portion of North Dallas that extends into Collin County. 

Winning post-conviction relief is extremely difficult in Texas, though not impossible: 464 people have been exonerated of various crimes here since 1989, according to the National Registry of Exonerations. About a third of those cases were overturned due to perjury or false accusations, according to the registry. Nearly one in five was due to inadequate legal defense. 

Almost 70 exonerations were from Dallas County. But Cantu’s case was tried in Collin County, even though it was investigated by the Dallas Police Department. Since 1989, only four people sent to prison from Collin County have been exonerated.  

The judge who presided over Cantu’s trial, Charles Sandoval, has since been heralded “the worst judge in Collin County”. Known as “Hang Them All Sandoval,” he lost his seat in 2008 after developing a reputation for cruelty and for making decisions based not on law but on courtroom favorites. One of the four recent Collin County exonerations was of former Judge Suzanne Wooten, who was convicted of bribery after successfully challenging Sandoval in a judicial campaign. That accusation came directly from Sandoval, but the charges were later overturned and discredited as a baseless vendetta. 

On Valentine’s Day, Cantu will submit his paperwork to tell the prison system who he wants there on his execution day and what he wants the state to do with his body afterward. He’ll explain where he wants his few belongings and any money left in his account to go. 

Sister Helen Prejean, author of the book Dead Man Walking, is acting as Cantu’s spiritual adviser. She’ll be there with Cantu during his execution if his date holds. But in the meantime, she is a fierce advocate for the date to be withdrawn. 

“There’s no way I’m simply going to acquiesce, hold his hand, and pray him into eternity without doing every single thing I can to get the truth out so that Texas does not execute this man who very possibly might be innocent,” Prejean told

Prejean, along with Cantu’s other supporters, are calling on Collin County to again withdraw his death warrant. It’s one of many ongoing efforts to spare Cantu’s life—and to give him another day in court. Officials from the county did not respond to requests for comment for this story. 

“If you want to execute me, that’s fine,” Cantu said over the closed-circuit phone in the Polunsky Unit. “Just give me a fair trial.”

“The criminal court of appeals deemed the claims in Ivan’s application were procedural barred, meaning it should have been included in Ivan’s 2004 habeas filing,” Duff said. “If the claims raised were based on a 2009 law (ex. Parte Chabot) and 2022 recant of a state’s star witness, that information was clearly unavailable in 2004.”

“The court’s ruling is unjust and needs to be overturned,” Duff added. 

Cantu responded to the court’s decision on death row through the Texas Department of Criminal Justice email system.

“I’m disappointed with the Texas Court of Criminal Appeals for not reviewing my case on the merits,” Cantu writes. “I’m entitled to a new trial according to state law precedent and the constitution of the United States.”

“Where is State Rep. Jeff Leach?” Cantu added. “Leach advocates for other death row inmates such as Melissa Lucio and Jeffery Wood, who are not even from Collin County. Why isn’t he advocating for the injustice occurring in his own backyard?”

Texas State Rep. Jeff Leach was contacted for comment by phone and via email on Friday, Sept. 1, and again on Monday, Sept. 5, and has yet to reply as of noon on Wednesday, Sept. 6. 

Cantu’s execution date is scheduled for Feb. 28, 2024. 

Documentary

https://youtube.com/watch?v=ADq4MNn9rmg%3Fsi%3DvP8_MlLVYiFwYlw1

Federal judge says Alabama can conduct nation’s 1st execution with nitrogen gas; appeal planned

January 10, 2024

Alabama will be allowed to put an inmate to death with nitrogen gas later this month, a federal judge ruled Wednesday, clearing the way for what would be the nation’s first execution using a new method the inmate’s lawyers criticize as cruel and experimental.

U.S. District Judge R. Austin Huffaker rejected inmate Kenneth Eugene Smith’s request for a preliminary injunction to stop his scheduled Jan. 25 execution by nitrogen hypoxia. Smith’s attorneys have said Alabama is trying to make Smith the “test subject” for an untried execution method after he survived the state’s previous attempt to put him to death by lethal injection.

Why it matters: This untested hypoxia execution method, the first of its kind in the U.S., could prove to be “painful and humiliating,” human rights experts said.

  • “Hypoxia is a state in which oxygen is not available in sufficient amounts at the tissue level to maintain adequate homeostasis,” per research in the National Institutes of Health.

Smith’s attorney, Robert Grass, said he will appeal the decision but declined further comment. The question of whether the execution can ultimately proceed could end up before the U.S. Supreme Court.

Smith, now 58, was one of two men convicted of the murder-for-hire of a preacher’s wife that rocked Alabama in 1988. Prosecutors said Smith and the other man were each paid $1,000 to kill Elizabeth Sennett on behalf of her husband, who was deeply in debt and wanted to collect on insurance.

Alabama Attorney General Steve Marshall praised Wednesday’s decision, saying it moves the state closer to “holding Kenneth Smith accountable for the heinous murder-for-hire slaying” he was convicted of committing.

“Smith has avoided his lawful death sentence for over 35 years, but the court’s rejection today of Smith’s speculative claims removes an obstacle to finally seeing justice done,” his statement added.

The state’s plans call for placing a respirator-type face mask over Smith’s nose and mouth to replace breathable air with nitrogen, causing him to die from lack of oxygen. Three states — Alabama, Mississippi and Oklahoma — have authorized nitrogen hypoxia as an execution method, but none has used it so far.

Smith’s attorneys argued the new protocol is riddled with unknowns and potential problems and violates a constitutional ban on cruel and unusual punishment.

Huffaker acknowledged that execution by nitrogen hypoxia is a new method but noted that lethal injection — now the most common execution method in the country — once was also new. He said while Smith had shown the theoretical risks of pain and suffering under Alabama’s protocol, those risks don’t rise to an unconstitutional violation.

“Smith is not guaranteed a painless death. On this record, Smith has not shown, and the court cannot conclude, the Protocol inflicts both cruel and unusual punishment rendering it constitutionally infirm under the prevailing legal framework,” Huffaker wrote in the 48-page ruling.

Huffaker also wrote that there wasn’t enough evidence to find the method “is substantially likely to cause Smith superadded pain short of death or a prolonged death.”

Smith survived a prior attempt to execute him. The Alabama Department of Corrections tried to give Smith a lethal injection in 2022 but called it off when authorities couldn’t connect two intravenous lines.

The Rev. Dr. Jeff Hood, Smith’s spiritual adviser who plans to be with Smith during the execution, said he was troubled by the ruling. “Horror is an understatement. The State of Alabama now has the permission of a federal court to suffocate its citizens,” Hood said.

Experts appointed by the United Nations Human Rights Council earlier this month cautioned that, in their view, the execution method would violate the prohibition on torture and other cruel, inhuman or degrading punishment.

Wednesday’s ruling followed a December court hearing and legal filings in which attorneys for Smith and Alabama gave diverging descriptions of the risks and humaneness of death from nitrogen gas exposure.

The state attorney general’s office had argued that the deprivation of oxygen would “cause unconsciousness within seconds, and cause death within minutes.” Its court filings compared the new execution method to industrial accidents in which people passed out quickly and died after exposure to nitrogen gas.

But Smith’s attorneys noted in court filings that the American Veterinary Medical Association wrote in 2020 euthanasia guidelines that nitrogen hypoxia is an acceptable method of euthanasia for pigs but not for other mammals because it could create an “anoxic environment that is distressing for some species.”

Smith’s attorneys also argued that the gas mask, which sits over the nose and mouth, would interfere with Smith’s ability to pray aloud or make a final death chamber statement.

The attorney general’s office called those concerns speculative.

Alabama’s prison system agreed to minor changes to settle concerns that Smith’s spiritual adviser would be unable to minister to him before the execution. The state wrote in a court filing that the adviser could enter the execution chamber before the mask was placed on Smith’s face to pray with him and anoint him with oil.

The murder victim Sennett was found dead on March 18, 1988, in the home she shared with her husband Charles Sennett Sr. in Alabama’s northern Colbert County. The coroner testified the 45-year-old woman had been stabbed repeatedly. Her husband, then the pastor of the Westside Church of Christ, killed himself when the murder investigation focused on him as a suspect, according to court documents.

Smith’s initial 1989 conviction was overturned on appeal. He was retried and convicted again in 1996. The jury recommended a life sentence by a vote of 11-1, but a judge overrode the recommendation and sentenced Smith to death. Alabama no longer allows a judge to override a jury’s decision on death penalty decisions.

John Forrest Parker, the other man convicted in the case, was executed in 2010.

Supreme Court Opinion (pdf)

Alabama Appellate courts Case View Kenneth Eugene Smith v. State of Alabama