Too Much Doubt: Ivan Cantu and Maimonides on the Burden of Proof for Execution

Maimonides teaching about the “measure of man.” Illuminated manuscript. (Public Domain.)

On February 28th, Texas plans to put to death Mr. Ivan Abner Cantu, the longtime penpal of “L’chaim! Jews Against the Death Penalty,” an international group of over 3,200 members that I co-founded. Mr. Cantu has been found guilty of the November 4, 2000 murders of his cousin Mr. James Mosqueda, 27, and of Ms. Amy Kitchens, 21, Zichronam Livracha – may their memories be for blessings and their neshamot/spirits loving guides for all who knew them. Texas intends to carry out this horror despite ever-mounting doubts over Ivan’s guilt. It does not take a law degree for a layperson to understand the tremendous scope of this doubt. Perusal of Mr. Cantu’s case reveals numerous glaring issues, such as fraudulent testimony during the trial, newly-uncovered evidence that has not been considered as a result of procedural bars, jurors who support Mr. Cantu’s appeal for a new trial, police and prosecutorial misconduct, and ineffective assistance of his counsel, to name but a few.

In the American justice system, it is well-known that the legal burden of proof for conviction in a criminal case calls for a suspect to be found guilty  “beyond a reasonable doubt”. That bar should be infinitely high when it comes to the finality of execution. Jewish tradition has a great deal to say about the loftiness of this bar in the rabbinic mindset. To be sure, traditional Judaism did indeed allow a place for the death penalty, albeit with prodigious safeguards to ensure that an innocent person would never be executed.  When it came to the notion of reasonable doubt, Rabbinc law forbade the execution of someone where there was any level of doubt about guilt or fairness.

Arguably the most famous comment on this subject came from the 12th century in the writings of one of our most renowned Jewish sages of all time:  the Rambam (Rabbi Moses ben Maimon, 1135-1204). Maimonides, as the Ramban is often called, was a Sephardic Jewish philosopher and physician who became one of the most prolific and influential Torah scholars of the Middle Ages. One of the most renowned pearls of wisdom among the many that Maimonides imparted to the world nearly a millennium ago states the following: “It is better to acquit a thousand guilty persons than to put a single innocent one to death.”

The full context of this famous phrase bears consideration. As Maimonides wrote in Sefer HaMitzvot, Prohibition 290:

“The realm of the possible is very broad. Had the Torah permitted deciding capital cases based even on a conjecture so likely that it seems absolutely certain, like the example we mentioned [about the person chasing another with a sword], in the next case we would decide based on a conjecture just a little less likely, and in the next, a conjecture less likely still, until we would sometimes execute people based on nothing more than the judge’s imagination and opinion. Thus the Exalted One shut this door, and demanded that we not punish except when witnesses can testify without doubt or conjecture that they are absolutely certain the defendant did this deed. Inevitably, when we do not convict based even on very strong conjecture, we will sometimes acquit the guilty; while when we do convict by conjecture sometimes we will execute the innocent. But it would be better to acquit a thousand criminals than to kill a single innocent.”

Maimonides’ argument clearly was intended to maximize the protection of the innocent by not tolerating any doubt in capital cases. In this way, his guidance is fully aligned with the traditional Jewish understanding of financial compensation for the value of an “eye for an eye”, (Lev. 24: 19-20) which in its historical context was intended to curtail the collective bloodlust of expansive vengeful massacres that societies practiced in ancient times – and still all too often today.

Texas would do well to heed this Jewish wisdom regarding the miniscule threshold for doubt in capital cases. Indeed, the Lone Star State falsely professes to do just this. To highlight this hypocrisy, consider the words of Mr. Bill Wirskye, who is First Assistant in the Collin County District Attorney’s Office, working directly under DA Greg Willis. In 2017, Mr. Wirskye wrote an article entitled My Wrongful Conviction about the importance of Conviction Integrity Units and how they guard against errors by the state in criminal proceedings. Mr. Wirskye concluded that article by writing that “I now have a new and hard-earned humility about the potential fallibility of both the [justice] system and myself. I hope this humility makes me a better prosecutor. I think it does.” And yet, despite this conclusion, the very same Collin County District Attorney’s office that Mr. Wirskye serves has just recently denied Mr. Cantu’s lawyers from having any access to the ballistics evidence used at his trial. This action once again has blocked the scrutiny necessary for a case riddled with doubts, and has effectively paved the way for this execution.

Mr. Cantu has continually fallen through the lethal cracks of the justice system – a system whose very fallibility Mr. Wirskye allegedly recognized in his article and from which it would seem he has failed to learn any lesson, all assertions to the contrary. If this is indeed the standard of “reasonable doubt” that Texas officials such as Mr. Wirskye tolerate, then the fears that Maimonides articulated a millennium ago for a slippery slope leading to the regular killing of the innocent was indeed prophetic.

Let there be no doubt: the members of L’chaim – as has been explained at length – are against the death penalty in every single case, without exception. L’chaim members maintain that 21st-century Judaism must entirely reject the death penalty. They carry the torch of Holocaust survivor Elie Wiesel, who said of capital punishment that “Death is not the answer in a civilized society.”

And yet, even for the staunchest supporters of the death penalty, the pending execution of Ivan Cantu, a human being whose guilt is so very much in question, should give every reason for pause. Before approving of the finality of such an execution in the presence of so much doubt, it would behoove all Texans to reflect once more on the wrongful executionpandemic that plagues the United States, including the fact that since 1973, at least 196 people who had been wrongly convicted and sentenced to death in the U.S. have been exonerated. Maimonides certainly would not have approved of a system that produces such a record – nor should any reasonable human being.

Readers who agree should consider adding their names to the over 13,000 individuals who already have signed the petition to save Mr. Cantu’s life. They should join the call of all members of civilized humanity as they respond to the very notion of state-sponsored killings with a phrase that is as time-honored as Maimonides’ wisdom, forever chanting:

“L’chaim…to Life!”