Metropolis: Wednesday, October 29, 2003
Deporting Controversy

A debate over unsworn judges didn’t save a local builder from being sent back to Mexico.


The devil, Jesus Rivera Cantu is learning, is in the details.

Cantu, a Fort Worth homebuilder, thought he had found a way to overturn the 20-year sentence he received for a drug crime he says he did not commit. He discovered that the judge who presided over the trial apparently did not take a required oath of office. And he found a recent appellate court ruling that said such a mistake renders acts by oathless judges “without authority.” That combination, Cantu figured, ought to be enough to get his case overturned and help him clear his name.

But a justice system that parses words finer than frog hair has, thus far, turned him down. A federal judge who heard Cantu’s appeal ruled that just because the required oath of office can’t be tracked down doesn’t mean it wasn’t taken, raising the perplexing question of whether it’s possible to prove that something doesn’t exist.

And the state judicial officials, who began requiring all current judges to take the oath after the appellate court ruling said it was required, appear unwilling to apply that requirement to cases tried before that ruling came down. What’s good for the goose apparently isn’t for the gander.

“It’s like the old saying, ‘Our minds are made up. You can’t confuse us with the facts,’” said Joe Guerrero, a League of United Latin American Citizens leader who has championed Cantu’s case.

Making the fight even more daunting, Cantu must now wage the battle to clear his name from outside the United States. He was released from prison earlier this year only to be deported to Mexico — a long day’s drive from his wife and children who still live in Fort Worth.

From his family ranch in Sabinas, a few hours south of the Texas-Mexico border, Cantu said he believes officials are rejecting his appeal because they fear that overturning his conviction would lead to scores of other criminal cases coming unraveled.

“They don’t want to give up because they know what’s coming at them,” he said in a telephone interview, as a rooster crowed in the background. “They have made me suffer, made my family suffer, almost five years.”

Cantu is not yet willing to give up, however. State Rep. Lon Burnam of Fort Worth has joined his fight, claiming the 46-year-old’s civil rights were violated. And the regional LULAC council earlier this month voted its unanimous support for Cantu’s family and his legal challenge.

Cantu’s troubles began in 1994 when Fort Worth police raided a warehouse he used in his construction businesses and found 600 pounds of marijuana inside. Cantu, who was visiting relatives in Mexico during the raid, says drugs were placed in the warehouse without his knowledge by an acquaintance. The acquaintance, who was also indicted in the case, disappeared after being released on bond and has not been tried.

Four years later, Cantu was tried, convicted, and sentenced to prison. While serving his sentence at a prison outside Wichita Falls, Cantu, like scores of prisoners before him, scoured legal books in the prison library looking for holes in his case. After reading the plain language of the Texas Constitution, which requires judges to take oaths of office, Cantu, with help from wife Blanca and family friend Guerrero, discovered that the judge in his case, Howard Fender, apparently had not taken the required oath before presiding over the trial. That apparent failure became an element in Cantu’s appeal, which is now headed for the U.S. Fifth Circuit Court of Appeals. Fender, Cantu said, “thought he was a judge but, according to the law, he wasn’t a judge. He was just a regular man on the street with a suit.”

Fender retired in 1996 after a legal career spanning five decades, including service as the chief justice of the Fort Worth-based Second Court of Appeals. Since his retirement, Fender, like many other retired judges, has continued to periodically accept temporary judicial appointments when local courts needed help. Records show that he accepted one such appointment in 1998 — to preside over Cantu’s drug trial.

However, neither Fort Worth Weekly nor the Cantus have been able to find an oath of office for Fender for that appointment. Records show the jurist filed an oath in 1983, when he was chief justice, and again in 2000, after the El Paso court ruling. And Fender has said that he doesn’t believe he’s required to take an oath of office for every appointment he accepts.

“I know lots of other judges who have done the other things that I’ve done, and they don’t file an oath of office every time they get an appointment,” he said earlier this year. The Weekly first reported on Cantu’s case in March, just as he was about to be released from state prison on good time after serving less than a quarter of his sentence. But Cantu’s release hasn’t led to a happy reunion with Blanca and their two children. As he was being released, Cantu was picked up by the federal Bureau of Citizenship and Immigration Services, one of the successor agencies to the Immigration and Naturalization Service that was reorganized following 9/11. The four years Cantu spent at the Allred Unit near Wichita Falls may have settled his debt with the state of Texas but not with la migra.

Immigration officials picked him up for deportation under a 1996 law that the agency says requires it to remove foreigners convicted of serious crimes following their release from prison. He spent three months in immigration detention facilities in Haskell, Houston, and Bedford before he was sent back to Mexico in July. While he was in immigration detention, Guerrero and Blanca Cantu asked the State Commission on Judicial Conduct to investigate whether Fender took the required oath. Earlier this month, lawmaker Burnam told the commission in a letter that he believes Cantu’s civil rights have been violated three times — during his trial, when he was turned over to immigration officials while his appeal was pending, and when he was deported.

The commission, however, decided to take no action, saying it would leave the decision on whether all judges must take an oath up to the judiciary itself.

In an unsigned letter to Guerrero, the commission said the “law remains unsettled” on the question and the judge’s actions “did not constitute a willful violation of the law or the Code of Judicial Conduct. ... Absent evidence of bad faith on the part of the judge, the oath of office issue is one that should be reviewed and addressed by the appellate courts.”

The commission’s acting director, Seana Willing, declined comment on Cantu’s case but said the commission is aware of about a dozen similar cases around the state. She also said all current judges have been required “out of an abundance of caution” to take the oath following the El Paso ruling.

Willing disputed the suggestion that the courts are afraid of opening a can of worms. “I sincerely doubt that an appellate court would hesitate to overturn or reverse a visiting trial court judge who intentionally failed to take (or) file the requisite oaths in an effort to obtain an unlawful conviction against an innocent defendant.”

Cantu said he is not trying to upend convictions across the state — just his. “I just want to get my case taken care of,” he said. “I don’t know what’s going to happen. I know I love my family and I want to be with them.”

Unless his case is overturned or some other solution is found, Cantu’s family is faced with the uncomfortable choice of remaining in Fort Worth alone or “selling everything and going to Mexico,” said Blanca Cantu, who is a U.S. citizen. Nonetheless, she remains convinced that she and her husband will win in the end.

“They know they’re wrong,” Blanca said last week, as she prepared for the day-long drive from Fort Worth to Sabinas to be with her husband of 24 years. The controversy is “going to get bigger and bigger, and they’re going to have to give up.”

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