By Jolie McCullough, The Texas Tribune
A Texas judge canceled next week’s scheduled execution of Ivan Cantu a day after a new appeal claimed he was wrongfully convicted with false testimony from two key witnesses. Jurors also did not see key evidence that might have convinced them he was innocent, the appeal claims.
On Wednesday evening, state district Judge Benjamin Smith, a Republican in Collin County, withdrew his previous court order setting Cantu’s execution for April 26, saying the new arguments require further review. Two of Cantu’s original jurors have said they no longer support his execution after hearing new details of his innocence claims.
Cantu, 49, has been on death row for more than two decades. He was convicted in 2001 for the Dallas murders of his cousin and his cousin’s fiancee, James Mosqueda and Amy Kitchen. Prosecutors have argued Cantu’s guilt largely by pointing to forensic evidence and the testimony of Amy Boettcher, Cantu’s fiancee.
Mosqueda’s car was found at Cantu’s apartment the day after the bodies were discovered, and later — while Cantu was out of town — police found bloody pants and socks in his trash can that matched the victims’ DNA, according to court filings. The gun used in the murders was found at Cantu and Boettcher’s friend’s house with Cantu’s fingerprint on the magazine. After Cantu was arrested, Boettcher also pinned the murders on him.
Cantu, however, says he was framed. Mosqueda was a local drug dealer who likely instead was killed by a rival drug dealer whom he owed a lot of money, Cantu argued in his filing.
Cantu and Boettcher had left for Arkansas on a pre-planned trip hours before the bodies were discovered, according to the prisoner’s new appeal. In a phone call with one of Mosqueda’s drug associates shortly after the murders, which Cantu did not know police were listening in on, Cantu said a man dressed as a pizza delivery man had threatened him at his apartment several days earlier. Cantu said the man told him he was looking for Mosqueda, who owed him money for drugs.
Cantu told the man that he gave a warning about the threat to Mosqueda, who asked Cantu to swap cars with him so it would look like he wasn’t home and someone else was visiting. Cantu agreed to come back to Texas to talk to police about the murders, his lawyers said.
After the bloody clothes were found in his apartment, he was arrested on his return to Collin County. Boettcher went back to her parents’ house in Arkansas, ultimately telling police Cantu committed the murders and testifying against him at trial. She said Cantu had told her the night before the victims’ bodies were found that he was going to kill them. She said he left and came back with a swollen face and bloody clothes, and then they went out to party. Both were drug users.
Cantu’s lawyers argue that Boettcher fingered Cantu because she feared she would be targeted for the deaths otherwise. Her stepfather said she called him after Cantu’s arrest and said “I’m scared to death they are going to kill me. Get me out of here,” according to the filing.
Cantu’s appeal attempts to pick apart Boettcher’s statements. His lawyers said no one else who saw Cantu that night noted his face was swollen or bruised. Mosqueda’s watch, which Boettcher said she saw Cantu toss out of their car the night of the murders, had been found by one of Kitchen’s relatives at Mosqueda’s house and turned in to police, Cantu’s lawyers said, a detail they learned only in 2019.
Plus, Boettcher testified that Cantu had proposed to her with a diamond engagement ring that he had stolen from Kitchen’s body after killing her, but witnesses have since said the couple announced their engagement and showed off Boettcher’s ring a week earlier.
Boettcher died in 2021 at age 44, according to Cantu’s private investigator and an obituary. The Collin County district attorney’s office declined to comment on the pending case.
Cantu’s lawyers also attempted to add weight to the argument that he was framed by citing a police officer who, during a welfare check at Cantu’s apartment shortly after the murders were discovered, said she saw no bloody clothes in the unlidded trash can prominently displayed in the kitchen during her original search. It’s unclear if the officer searched the trash can, but she has since said in an affidavit that she believes she would have seen the clothes, “leading me to believe the evidence in the trash can was not there at the time of the search.”
The clothes were found three days later during a police search, before Cantu got home from Arkansas. Cantu’s lawyers also said phone records showed a call was made from his apartment while he was in Arkansas, which they said indicates someone else placed the clothes there.
As for his fingerprint on the gun, Cantu insisted he had never handled that gun, but had handled several other guns with Boettcher in the days leading up to the murders, according to private investigator Matt Duff, who launched a podcast about Cantu’s case in 2020 after he began investigating it. Duff theorized that a magazine he touched could have been inserted into the murder weapon, as his prints weren’t on the gun itself.
Finally, Cantu’s lawyers pointed to since recanted testimony by Boettcher’s brother, Jeff. Jeff Boettcher testified at trial that Cantu had talked to him about killing Mosqueda, that he had seen Cantu with the murder weapon and that Cantu had asked him to help clean up after the murders.
Shortly after his sister’s death, Jeff Boettcher began calling prosecutors in 2022 to recant his testimony. He told the district attorney’s office that he was on drugs when he spoke to police and while he was at trial, and what he said wasn’t true.
Since the new arguments were raised to Cantu’s jurors who handed down the death penalty in 2001, at least two have pushed to halt his execution.
“I am disturbed by the possibility that false testimony and evidence was presented to me and the other jurors at trial,” Montra Marie Biggs said in a signed statement this month. “As a juror who served in this case, I do not want to see Mr. Cantu executed without getting a full hearing on this new information.”
It’s unclear if the arguments will ever be heard in court, however. The Texas Court of Criminal Appeals has final say on whether the appeal can proceed, and it has not yet ruled on the day-old filing. In the meantime, Cantu will remain on death row.
On Wednesday, his mother walked through the Texas Capitol, trying to get any lawmaker she could to call for halting her son’s execution. Sylvia Cantu said her son never had a chance, blaming lazy defense attorneys and misconduct by prosecutors and police. But she said he always was hopeful that he would get justice.
“He believes that this outcome is going to work in his best interest,” she said hours before the judge withdrew the death warrant. “And I’m hoping that it does. I pray that it does.”
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/04/20/texas-execution-ivan-cantu/.
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