TITLE: The Execution of Ivan Cantu Is a Reminder of Why We Execute the Innocent and Always Will
https://verdict.justia.com/2024/03/05/the-execution-of-ivan-cantu-is-a-reminder-of-why-we-execute-the-innocent-and-always-will
EXCERPT: It is long past time to acknowledge that as long as we continue to sentence people to death, we will keep executing innocent people.
Texas did so when it executed Cantu by lethal injection for murdering his cousin and his cousin’s fiancée, James Mosqueda and Amy Kitchen, in November 2000. As the Texas Tribune notes, “Prosecutors pointed to bloody clothing found in Cantu’s trash can, stolen jewelry and the testimony from Cantu’s fiancée, Amy Boettcher, and her brother, Jeff Boettcher, to build a case against the defendant.”
However, between the time he was convicted and today, the case against Cantu gradually unraveled.
First, four years ago a police officer signed a sworn affidavit contradicting what Amy Boettcher said about finding bloody jeans at Cantu’s home. As the Tribune reports, “The jeans were too big for Cantu and tests did not find conclusive evidence of his DNA on the pants.”
Amy Boettcher also testified that Cantu threw a Rolex watch belonging to Mosqueda out of a car window shortly after the murders. But, in 2019, Cantu’s lawyers learned that the police found the watch in Mosqueda’s home and had returned it to his family.
As detailed in Cantu’s last-minute request for a stay of execution from the U.S. Court of Appeals for the Fifth Circuit, Boettcher also lied when she testified that Cantu proposed to her with Amy Kitchen’s engagement ring on the night of the murders.
Boettcher gave other false testimony, claiming that Cantu had committed the murders around midnight on November 3. Declarations from two forensic pathologists suggest that the killings occurred on the morning of Saturday, November 4, “based on the onset and progression of rigor mortis and livor mortis.”
More unraveling of the case against Cantu occurred in 2021 when Jeff Boettcher admitted that he lied when he testified that Cantu recruited him to clean up after the murders and that he was a drug user when he gave that false testimony.
And, as too often happens in death cases, the state knew about the problems with the Boettchers in advance of Cantu’s trial but went ahead anyway.
When all of this came to light, three of the jurors who had voted to convict Cantu and sentenced him to death came forward and said that they would not have done so if they had known about those problems at the time of the trial.
One of them said, “By no means am I protesting the death penalty, by no means am I protesting our judicial system. I’m simply asking that this be looked at a little deeper before the unripened fruit is taken off the tree.”
Even with Cantu’s new evidence and the support of some of the very people who sentenced him to death, on February 27, the ultra-conservative and death penalty friendly Fifth Circuit gave the green light for his execution. The court chastised Cantu, saying that “his claims could have been discovered years or even decades ago with the exercise of due diligence. And even if some of his claims had merit (though they do not), he has not made a prima facie case that by clear and convincing evidence, no reasonable factfinder would have found him guilty of the two murders.”
But nothing that the court said can obscure the fact that Americans have recently learned a lot about the kinds of problems that plagued Cantu’s and other death penalty cases.
A 2003 Gallup poll asked, “How often do you think that a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with—do you think this has happened in the past 5 years, or not?” 74% of the respondents reported that they believed that an innocent person had been executed within the last 5 years.
In a 2021 Pew survey, 78% of the respondents agreed that “there is some risk that an innocent person will be put to death, while only 21% think there are adequate safeguards in place to prevent that from happening.”
And over the last fifty years, 197 people have been exonerated and released from death row. Twenty-one of those exonerations resulted from DNA testing.
As the Death Penalty Information Center reports, between 1976 and 2021 for every 8.3 people sentenced to death in the United States 1 was exonerated.
In 2014, Law professor Samuel Gross and his colleagues published a study in which they tried to identify the number of death sentenced individuals who are actually innocent. As they explained, “False convictions, by definition, are unobserved when they occur: If we know that a defendant is innocent, he is not convicted in the first place. They are also extremely difficult to detect after the fact. As a result, the great majority of innocent defendants remain undetected.”
Gross also reminds us that the rate of exonerations among death sentences in the United States is “far higher than for any other category of criminal convictions. Death sentences represent less than one-tenth of 1% of prison sentences in the United States, but they accounted for about 12% of known exonerations of innocent defendants from 1989 through early 2012, a disproportion of more than 130 to 1.”
They estimate that “if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated.”
Today, there are more than 2,300 people on death rows across the United States. Applying Gross’s figure suggests that 94 of them are innocent.
TITLE: A Paramedic Got 5 Years in Prison for Elijah McClain's Death. That's Not Justice.
https://reason.com/2024/03/04/a-paramedic-got-5-years-for-elijah-mcclains-death-thats-not-justice/
EXCERPT: Peter Cichuniec on Friday was sentenced to five years in prison. But Cichuniec was not the officer who first physically accosted McClain within 10 seconds of exiting a patrol car, despite that no crime had been reported and that McClain had no weapon. That was Nathan Woodyard. Nor was Cichuniec one of the two officers who joined Woodyard shortly thereafter, helping him forcibly subdue and arrest McClain, notwithstanding the fact that they had not met the constitutionally required standard to do so. Those were Jason Rosenblatt and Randy Roedema.
Cichuniec, who didn't arrive until about 11 minutes later, was the lead paramedic, ultimately administering too large a dose of a sedative after miscalculating McClain's size and hearing from police that McClain was allegedly experiencing "excited delirium," a potentially dubious syndrome characterized by severe distress, agitation, and sudden death. While it remains unclear what exactly caused McClain to go into cardiac arrest, an amended autopsy attributes McClain's death to "complications of ketamine administration following forcible restraint." For Cichuniec's error, which occurred in rapidly changing, chaotic circumstances, he will spend significantly more time in prison than any of the officers, without whom Cichuniec would never have been called in the first place.
Woodyard, who initiated the encounter and violated department policy by applying two carotid holds—where blood flow to the brain is cut off by applying pressure to both sides of the neck—was found not guilty of manslaughter and criminally negligent homicide. (He has since returned to work with $200,000 in back pay.) Rosenblatt was also acquitted. Roedema, the senior officer on the scene, was convicted of criminally negligent homicide and third-degree assault and sentenced to 14 months in jail.
As Reason's Jacob Sullum wrote previously, McClain died from a smorgasbord of constitutional violations, laid out exhaustively in a 157-page report released in 2021 by an independent panel appointed by the Aurora City Council.
Did Woodyard meet the Fourth Amendment bar to conduct an investigatory stop of McClain? No, the panel concluded, as it "did not appear to be supported by any officer's reasonable suspicion that Mr. McClain was engaged in criminal activity." Was law enforcement justified next in frisking McClain, which is legally permissible only if they reasonably suspect the person is armed? No, the panel concluded, as Woodyard himself admitted he felt safe approaching because McClain "didn't have any weapons." And did police meet the constitutional threshold to escalate the encounter to an arrest, which requires probable cause that a crime has been committed? No, the panel concluded, as "the only facts that had changed were Mr. McClain's attempt and stated intention to keep walking in the direction he had been going and his 'tensing up.'" (In 2021, the city of Aurora authorized a $15 million settlement with McClain's family. Good.)
When Woodyard first approached McClain, he had earbuds in and appeared to not hear Woodyard's commands. He was wearing a ski mask, sweat pants, a jacket, and a knit cap, which makes sense when considering he had anemia, a condition that causes coldness in the extremities. Those were the circumstances—along with the teenage 911 call—that ultimately led police to feel justified in forcibly accosting McClain, who was 5'7″ and 140 pounds, so much so that he vomited profusely into his ski mask.
Cichuniec was convicted of criminally negligent homicide and second-degree assault, with a sentencing enhancement for causing serious injury or death. His five-year sentence is the mandatory minimum prescribed by Colorado law. At trial, prosecutors argued he and Jeremy Cooper—the other paramedic on scene who was convicted of criminally negligent homicide and will be sentenced later—failed to do their due diligence in monitoring McClain after giving him the ketamine. The defense countered that the two men were unaware McClain had already been the subject of two carotid holds and that he had vomited multiple times since—important information when evaluating ketamine use, which can further restrict breathing.
It can certainly be true that Cichuniec made an egregious professional misjudgment. And it can also be true that punishing him criminally for it makes little sense, particularly in the context of a criminal justice reform conversation that has, often rightfully, emphasized that prison should be reserved for people who actively present a danger to society. That those two things may feel painful to reconcile does not actually make them irreconcilable.
So is Cichuniec actively a danger? While his error—which appeared to be an honest one, no matter how catastrophic—very well may have contributed to McClain's demise, it is difficult to make the argument that he still poses a threat to the public. There are, after all, different forms of accountability outside of prison walls. Fire him? Of course. Bring a civil suit? Ideally. Imprison him for the next five years? I fail to see who, exactly, that makes safer.
TITLE: A woman wins $3.8 million verdict after SWAT team searches wrong home based on Find My iPhone app
https://apnews.com/article/swat-search-verdict-find-my-phone-colorado-87c754fa8ed69658bbb59d325b4505af
EXCERPTS: A jury in state court in Denver ruled in favor of Ruby Johnson late Friday and the verdict was announced Monday by the American Civil Liberties Union of Colorado, which helped represent her in the lawsuit. The lawsuit alleged that police got a search warrant for the home after the owner of a stolen truck, which had four semi-automatic handguns, a rifle, a revolver, two drones, $4,000 cash and an iPhone inside, tracked the phone to Johnson’s home using the Find My app, and passed that information on to police.
According to the lawsuit, Johnson, a retired U.S. Postal Service worker and grandmother, had just gotten out of the shower on Jan. 4, 2022, when she heard a command over a bullhorn for anyone inside to exit with their hands up. Wearing only a bathrobe, she opened her front door to see an armored personnel carrier parked on her front lawn, police vehicles along her street and men in full military-style gear carrying rifles and a police dog.
Detective Gary Staab had wrongly obtained the warrant to search Johnson’s home because he did not point out that the app’s information is not precise and provides only a general location where a phone could be, the lawsuit said.
The police used a battering ram to get into Johnson’s garage even though she had explained how to open the door and broke the ceiling tiles to get into her attic, standing on top of one of her brand new dining room chairs, according to the lawsuit. They also broke the head off a doll created to look just like her, complete with glasses, ACLU of Colorado legal director Tim Macdonald said.
Johnson is Black but the lawsuit did not allege that race played a role, he said.
Macdonald said the biggest damage was done to Johnson’s sense of safety in the home where she raised three children as a single mother, he said, temporarily forgoing Christmas and birthday presents to help afford it. She suffered ulcers and trouble sleeping and eventually moved to a different neighborhood.