This article ran in the Houston Chronicle on Sunday, July 23, 2006.Candid phone calls cast doubt on Cantu reviewInvestigators 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 suspectsMoore 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 conversationsEwell, 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 investigationInstead, 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."