10/09/99
By Rick Klein / The Dallas Morning News
A Dallas judge has approved DNA tests for a man who has spent 11
years on death row, signaling what some say is a new willingness by the
judiciary to re-examine old cases.
Domingo Cantu Jr., 31, is scheduled to be executed Oct. 28 for the 1988
rape and murder of a 94-year-old Oak Cliff woman, Suda Eller Jones.
One of Mr. Cantu's attorneys, David Sergi of San Marcos, persuaded
state District Judge John Nelms this week to order DNA tests on bloody
clothing Mr. Cantu was wearing the day of the crime.
The clothing could not be analyzed for DNA in 1988 because the
technology was not advanced enough, Mr. Sergi said. In a meeting
Wednesday with Dallas County prosecutors and Judge Nelms, Mr. Sergi
argued that Mr. Cantu is entitled to DNA tests on the clothing because
such tests are now possible.
He based his request in part on the recommendations of the National
Commission on the Future of DNA Evidence. The commission, organized
last year by U.S. Attorney General Janet Reno to help identify uses of
DNA technology, issued a report Sept. 27 encouraging prosecutors and
judges to consider reopening cases in which DNA tests could prove a
convict's innocence.
Mike Carnes, Dallas County first assistant district attorney, said his
office
has agreed to post-conviction DNA tests in the past. However, he
opposed Mr. Sergi's request because he considered it frivolous.
"There was uncontroverted evidence of his guilt," Mr. Carnes said. "Why
should you go to the trouble of doing the DNA when you have absolutely
no question as to guilt?"
Mr. Sergi said if the blood found on his client's clothing is proved not
to be
Mrs. Jones', the conviction is thrown into doubt and Mr. Cantu should get
a new trial.
"This is the first time any [Texas] judge has done what the report said
they
should do," Mr. Sergi said.
Judge Nelms said the report was not a major factor in his decision.
"Anyone who's looking at death, I think we should give them every
opportunity," the judge said. "At the time of the defendant's conviction,
DNA testing was not something that was even considered."
Mr. Sergi said the judge's decision could clear the way for future requests
for evidence analysis in similar cases. He said countless people convicted
before the early 1990s could have grounds to request DNA tests.
"It's going to open up a can of worms," he said. "The impact of this is
going
to be huge."
Mark Daniel of Fort Worth, vice president of the Texas Criminal Defense
Lawyers Association, said that judges will continue to order evidence
reviews case-by-case and that not all convictions warrant DNA tests.
"Is DNA relevant? In the vast majority of cases, it's not," Mr. Daniel
said.
"This is not going to change our system of jurisprudence."
Prosecutors said at trial that Mr. Cantu grabbed Mrs. Jones near the front
of her home, in the 1100 block of North Madison Avenue, dragged her to
the back, sexually assaulted her and then beat her head against a sidewalk.
Mr. Cantu confessed to Dallas police but later recanted.
Under Judge Nelms' order, Mr. Cantu's defense team will have to pay for
the DNA tests. Mr. Sergi said they expect to have results within 10 days,
so his client's execution date may not be affected.
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