Feature: Wednesday, March 27, 2003
So Help Me God

A bench full\r\nof unsworn judges could cause\r\nserious cussing\r\nat the courthouse.\r\n

By Dan Malone Photos By Jason Schlichenmaier

The words are repeated so often in courtroom dramas and crime stories that most people know them by heart. Witnesses called to the stand in a trial are asked to raise their right hands and solemnly swear to “tell the truth, the whole truth, and nothing but the truth, so help me God.’’

Swearing to God, of course, won’t prevent a determined liar from shading the truth or telling a whopper. But the ritual is such a fundamental element of American jurisprudence that a conviction, even for a serious crime, can be overturned if a witness testifies without taking that oath.

Witnesses aren’t the only ones required to take oaths. Jurors swear to carefully consider the facts in a case. Prosecutors swear to seek justice, not just convictions. And the Texas Constitution requires officeholders — from the governor and the Supreme Court chief justice on down — to take an oath pledging fidelity to the laws of the land.

But what are the consequences if a judge — an official who would be expected to know the law better than anyone — presides over a trial without taking the constitutionally required oath of office? Such a failure, according to a little-noticed state appellate court ruling, can invalidate a judge’s actions.

In Fort Worth, lawyers for a Northside businessman are testing that premise, seeking to overturn Jesus Rivera Cantu’s drug conviction because, Cantu’s lawyer and family say, the judge in the case had not taken the oath.

The issue has the potential to cause ripples across the state. A court administrator said that in North Texas alone, scores of temporarily assigned judges have presided over cases without taking the oath. The League of United Latin American Citizens, which is supporting Cantu’s appeal, is also drawing attention to the larger issue of unsworn judges.

That leaves the Texas justice system in a quandary: Even while the Texas attorney general’s office and local prosecutors are opposing Cantu’s appeal, the attorney general’s office has already conceded in court records that the “failure of a judge to take a required oath of office renders his actions void.’’

Cantu, a 45-year-old building contractor, was convicted in 1998 of drug possession after being accused of involvement in a Mexico-to-Texas marijuana smuggling operation that police say generated hundreds of thousands of dollars.

“While I was growing up in Mexico, I always thought the U.S.A. was a country of the best government and the laws were perfect,’’ Cantu wrote in a letter from state prison. After spending more than four years behind bars for a crime he says he did not commit, Cantu said his opinion has changed: “The law is not always applied equally to everyone. Some people are exempt....’’

Howard Martin Fender, a former chief justice of the Fort Worth-based 2nd Court of Appeals, presided over Cantu’s trial as a visiting judge. Fender had retired two years earlier but continued to work when needed in several Tarrant County courts — a common practice used around the state to purge clogged courtrooms of pending cases or when a judge not connected to a local community is needed.

In a telephone interview at his home, Fender said he has taken oaths of office several times during his career but doesn’t believe he was required to take one just to preside over Cantu’s case.

“If I tried to take an oath of office for every case I tried, I’d spend all my time taking oaths of office,’’ he said. “I know lots of other judges who have done the other things I have done and they don’t file an oath of office every time they get an appointment.’’

It is not clear how many convictions might be called into question because other judges didn’t take their oaths of office — but the potential for problems appears to be widespread.

Fender is among some 40 retired, former, or senior judges who, from time to time, are assigned to preside over cases in the 8th Administration Judicial District, which includes Tarrant County. How many of those jurists took the oath of office before the 1999 ruling from the El Paso-based appellate court? “Probably none,” said Jeff Walker, the 8th district’s presiding judge.

“That was the first time that any court had spoken on the subject of oaths of office,’’ Walker said. “Prior to that time, it is my understanding, at least, that everyone thought that a former or retired judge who had originally taken the oath when they became an active judge, that that oath stayed in effect.’’

Today, all judges are required to take the oath “out of an abundance of caution,’’ he said. “Prior to the El Paso case, that was not the case.’’

Mark Taylor Davis is the El Paso lawyer who persuaded the appellate court to overturn a lower court ruling based on the judge’s failure to take the required oath. Judges, he said, have to follow the law like everyone else.

“Every witness who takes the stand is required to first take an oath to impress upon the witness the gravity of the situation and the importance of telling the truth,’’ Davis said. “The same is true of a judge, whether by appointment or election. The oath is to impress upon him... that he has to follow the law. Judges are human beings just like every one else. Taking the oath is to remind them, just like the witness, that they must follow the law.’’

The much-amended Texas Constitution requires state officials, including judges, to make two sworn statements before taking office.

The first, an affirmation that the job wasn’t acquired through bribery, states: “I do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, promised to pay, contributed or promised to contribute any money or thing of value, or promised any public office or employment for the giving or withholding of a vote at the election at which I was elected or as a reward to secure my appointment or confirmation...so help me God.’’

Once that so-called anti-bribery statement is filed, the official is then required to take the actual oath of office specified word-for-word in the Constitution. “I do solemnly swear (or affirm) that I will faithfully execute the duties of the office of (fill in the blank) of the State of Texas, and will to the best of my ability preserve, protect and defend the Constitution and laws of the United States and of this State, so help me God.’’

Judges in Texas, from justice of the peace to chief justice, are elected. Texans periodically debate whether to amend their Constitution to require that judges be appointed, as they are in many other states. That debate is driven by the notion that subjecting judges to partisan elections erodes their impartiality.

As a practical matter, however, the state long ago gave up on its 100-percent-elected standard. Crowded dockets and courtroom shortages led to a system in which visiting judges are appointed to preside over hundreds of trials across the state. Some of those appointed in Tarrant County are retired judges who just can’t let go of the gavel. Visiting judges are paid 85 percent of a sitting judge’s daily pay.

Every two years, former judges who still wish to don a robe and bang a gavel fill out applications in which they state that they are qualified and willing to serve. Presiding judges in the state’s nine judicial regions tap into that pool of applicants as needs arise.

Fort Worth is the seat of the 8th Administrative Judicial Region, where Walker, who also serves as judge of Tarrant County’s 96th District Court, assigns duties to visiting judges like Howard Fender.

Fender, now 82, has been a fixture at the Tarrant County courthouse for more than 50 years. The former World War II bomber pilot and West Point grad was first elected to public office in 1952 as Tarrant County district attorney. He went on to work as an assistant Texas attorney general before beginning a career as a judge. He’s presided over a variety of Tarrant County courts, including a stint as chief justice of the 2nd Court of Appeals, before retiring in 1996

Records show that Walker appointed Fender to preside over Cantu’s 1998 trial in Criminal District Court No.4. Records show Fender took an oath in 1983, when he was chief justice, and in 2000, after the El Paso ruling. But no oath of office for him has been found for the 1998 trial.

Fender said he recalls filing oaths when he was elected to the bench, but said it has not been common practice among appointed judges to take oath again. “As far as these appointments, I don’t recall any of us filing an oath of office on that,’’ he said.

Fender discussed the oath of office issue at length during an initial telephone call but declined further comment after the Weekly sent him copies of his oaths of office and the appellate court case indicating that a new one might be needed.

“I don’t feel like I should make any further comment,’’ Fender said. “I’m satisfied I’m not called to take any action.’’

At least one visiting judge has been worried about the oath of office issue for years.

C.C. “Kit’’ Cooke said when he first started filling in as visiting judge back in the mid-1980s, he was concerned that no one required him to take an oath before he began hearing cases. “I asked around all over the state,’’ Cooke said. When he couldn’t get anyone to say whether an oath was needed, he opted to err on the side of caution. “I’ve always felt like we had to, and I’ve always done it,’’ he said.

The watchdog over Texas’ judiciary is the State Commission on Judicial Conduct. An agency spokeswoman said the oath of office issue is somewhat unsettled, but steered a reporter to the case from El Paso, in which the facts closely parallel those in the Cantu’s case.

Spokeswoman Seana Willing said commission rules prevent her from discussing whether a judge has been privately sanctioned for not taking an oath, but she said that no judge has yet been publicly disciplined on those grounds. She also said the commission is willing to look into the issue on a case-by-case basis.

“It will become an issue for us if people start complaining to us,’’ she said.

In the El Paso case, the 8th District Court of Appeals threw out a visiting judge’s order in 1999 — the year after Cantu was convicted — because he had not taken the oath.

Judge Jerry Woodard — like Fender — had been a judge for years. Woodard — like Fender — had also served on a state appellate court, the same one that would later rap him for not taking the oath. Woodard last took an oath of office when he went on the appellate court in 1986 — three years after Fender’s 1983 oath. And when he retired in 1992, Woodard applied — like Fender — for assignments so he could continue to hear cases. Woodard failed to take an oath when he was appointed — just as Cantu claims Fender failed to do.

In Woodard’s case, the defendant failed to show up for trial, and the judge ordered Prieto Bail Bonds to forfeit the $40,000 bond it had posted. The bond company appealed the decision, arguing that Woodard lacked authority because he had failed to take the oath — and the three-judge panel that heard the case agreed. The court said senior judges such as Woodard “must take the oaths required of appointed officers under Article 16, Section 1 of the Texas Constitution.’’

“We are hard pressed ... to hold that one with the authority to preside over litigation and adjudicate the interests of the litigants in a courtroom in the State of Texas should, or can, be exempt from an oath to preserve, protect and defend the Constitution and the laws of the United States and the State of Texas,’’ the opinion concluded. “Because Judge Woodard was required to take the constitutional oaths but did not do so, all judicial actions taken by him in the case were without authority.’’

The El Paso appellate court doesn’t have statewide jurisdiction. But prosecutors, according to Walker, have twice tried to get a higher court to overturn the decision — and failed both times. The Tarrant County district attorney’s office, which prosecuted Cantu and has defended the conviction on appeal, contends Fender’s omission is harmless.

“If someone acts as D.A. but has failed to take the oath, usually their actions are ratified when they remedy that defect,’’ said Alan Levy, the head of the D.A.’s criminal division. “As a general principle of law, if someone operates under the appearance of authority, they have authority.’’

Levy, however, is a trial court magician, not an expert on appeals, and he referred questions about the issue to his colleague, Chuck Mallin, head of the D.A.’s appellate division. Mallin agreed that judges must take the oath of office, but said Cantu waited too late to raise the issue.

“The judges need to do that — no question about it,’’ Mallin said. The obstacle Cantu must overcome, he said, is the failure of his lawyer to raise the issue at trial. Except in extraordinary circumstances, issues that aren’t raised at trial are difficult to raise on appeal. Beyond that technicality, however, Mallin said Fender’s failure to take the oath of office also had nothing to do with the question of Cantu’s guilt.

“It would not have made a difference,’’ Mallin said. “How’s he harmed? How does it affect the judgment?’’

Four and a half years after his trial, Jesus Cantu, through hard work and staying out of trouble, is eligible for parole. Officials said his release from the Allred prison unit outside Wichita Falls is imminent. However, he still might not regain his freedom.

Cantu’s wife, Blanca, said that he is a legal resident of the U.S., but state officials said immigration authorities want to further detain him for illegally entering the country. Even if that problem is resolved, the combination of being an immigrant and a convicted felon poses further complications. Congress in the mid-1990s passed a series of immigration law “reforms’’ that, among other things, require the automatic deportation of immigrants with serious felonies. Cantu’s appeal, which has been rejected by state courts, is pending before a federal court in Dallas.

Cantu has the distinction of having helped construct the building in which he lost his freedom. He testified during trial that his construction crews poured three floors of concrete in the courthouse where he was convicted.

Cantu came to the United States in the mid-1970s. He worked construction, ran a concrete crew, then started his own construction business in the mid-1980s. He also bought and sold horses, built horse trailers, and sold imported marble tabletops from Mexico. After starting out as a $2.50-an-hour laborer, he went on as a business owner to make good money — $65,000 one year, $80,000 another, he wrote in a letter from prison. Over time, he said, he socked away more than $500,000.

He’s also had his share of financial problems, including a bankruptcy and tax liens — problems that officials claim led him to traffic in marijuana when his legitimate businesses lagged.

Cantu was arrested eight years ago after police seized 600 pounds of marijuana they found in a Northside warehouse Cantu had rented for his construction business. Cantu said he was set up by an acquaintance he later came to believe was a drug dealer — a man indicted but never tried for the same crime for which Cantu was sentenced to 20 years in prison.

The Cantus said they left the United States to visit relatives and business contacts in Mexico a little over a week before Thanksgiving 1994. Before they left, Cantu loaned the keys to his shop to a dump truck operator he had met several months earlier. That acquaintance wanted to make repairs on his truck — and Cantu said he saw no reason not to let him use his shop.

The Cantus returned from Mexico the weekend after Thanksgiving. They were getting ready for bed when narcotics officers knocked their doors down, searched their home, and announced that they had found hundreds of pounds of marijuana in Cantu’s shop.

Cantu gave officers permission to search another house he owned, and inside they found his half-million in savings — money police say came from dope dealing and which Cantu said was the product of years of hard, legitimate work.

Police said Cantu told them that he and his acquaintance were in the drug business. Cantu said he told officers that the drugs belonged to the acquaintance alone.

Bob Mitchell is a former Tarrant County grand juror who knows both men. He leased Cantu the warehouse where the drugs were seized and sold a vehicle to the acquaintance. Mitchell said he thinks police sent the wrong man to prison.

Mitchell said the acquaintance told him he sold drugs when his dump truck business fell into a slump and that “when it got to raining and they couldn’t make any money, selling that marijuana was an easy way to make money.’’

Mitchell said he would gladly have testified during Cantu’s trial — but he wasn’t to appear.

“I knew Mr. Cantu to be a hardworking man, a construction company owner and a manufacturer of trailers. I never saw anything suspicious or illegal,’’ Mitchell said. “The man I think was responsible for it, they let him get away and go back to Mexico.’’

Like many prisoners facing long sentences, Cantu has studied jailhouse lawyering. During his research, he came across the plain words in the Texas Constitution requiring judges to take sworn oaths.

His wife, Blanca, has searched in vain for someone in state or county government who can provide her with proof that Fender took the required oath. Finally, she enlisted the help of Joe Guerrero, president of LULAC Council 601 in Fort Worth, in her quest.

Blanca Cantu and Guerrero have written letters requesting copies of Fender’s oath covering the period of Cantu’s trial. They made numerous trips to the Tarrant County courthouse and the state capitol seeking the same. They’ve found oaths for Fender dated 1983 and 2000 — but not one for the 1998 trial.

Guerrero said he and Cantu have worn out their welcome with state and county clerks. “They say, ‘This is all we have. This is all we have, this is all we have,’’ he explained. “We tried to get it in writing. They said they can’t do that.’’

Guerrero makes his living as a hair stylist and runs a popular salon in Sundance Square. People who make a living cutting hair have to follow the law, he said, and so should people who make a living judging others.

“I have a license I have to renew every two years,’’ Guerrero said. “All I want is ... to make sure everyone who is supposed to have an oath of office is in compliance.”

In records filed in federal court, where Cantu’s appeal is pending, attorney Jason Mills argues that Cantu deserves a new trial because the judge “was without authority to preside over the case as there was no local oath of office filed with the county nor with the Secretary of State as required by the Texas Constitution.’’

The Texas attorney general’s office is defending Cantu’s conviction. The assistant attorney general handling the case, Ellen Stewart-Klein, has conceded in court records that judges must take the oath, but she claims Cantu failed to prove that Fender didn’t take the oath.

“While it is clear under Texas law that a failure of a judge to take a required oath of office renders his actions void, Cantu has not proven that various officials did not take their oaths of office,’’ Stewart-Klein wrote in the state’s response to the appeal. “All Cantu has proven is that the oaths were not on file.’’

The Weekly wanted to ask Stewart-Klein whether the state believes Fender actually took the oath. But she declined comment through an associate. So it remains unclear exactly what the state would have Cantu do to prove his point.

Cantu’s trial lawyer, Abe Factor, said he was unaware that Fender hadn’t taken the oath until a reporter told him that Cantu’s appellate lawyer was using the issue to challenge Cantu’s conviction.

Prior to the Prieto ruling, Factor said, it didn’t occur to defense attorneys to verify whether a judge — even one serving on a visiting basis — had his paperwork in order.

“I suppose at this point people will start checking,’’ Factor said. “ It might really affect a lot of cases.’’

Mark Davis, the lawyer who raised the no-oath issue in El Paso, said he’s surprised it hasn’t already become an issue across the state.

“If you don’t take the oath of office in the manner prescribed by the constitution, you are not a judge,’’ he said. “It’s no different than going out in the street and asking someone to put on a black robe.

“You’ve got to do it exactly the way the people of Texas said.”

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