Former Bexar County DA lost faith in capital punishment system

SAN ANTONIO – Sam Millsap is embarrassed to admit he doesn't remember how many people his office sent to death row when he was district attorney here in the 1980s.

"Somebody who has been responsible for making those decisions, for directing those prosecutions, ought to be damned certain how many executions he's responsible for," he says, wincing.

He estimates it was eight, maybe nine.

Back then, he just didn't think much about the death penalty, Mr. Millsap says. "I was 35 years old. I knew everything. I was bulletproof."

Now 60, he thinks about the death penalty a lot – about wrongful convictions, flawed eyewitness testimony, DNA analysis.

"I am concerned that the system is absolutely incompetent to deal with these issues," he says.

'Breathing fire'

If anyone had told Mr. Millsap he'd lobby against the death penalty 25 years ago, he would have laughed. Growing up in San Antonio, his interest in law was piqued by the Perry Mason television show – where he was amazed that the prosecutor never won.

But as a student at the University of Texas, Mr. Millsap was "in love with the idea of being a top drawer corporate lawyer," he says.

In 1973, he joined a prestigious civil firm in Houston. But he returned to San Antonio and ran for district attorney in Bexar County in 1982.

"Breathing fire" during the campaign, if asked about the death penalty, he responded that he would "prosecute it vigorously."

"It's sort of like income taxes ... it's part of what we live with, it's a given."

During his four years in office, he guesses his prosecutors pursued the death penalty in 30 to 40 percent of eligible cases.

Mr. Millsap never witnessed an execution.

But back in civil practice in the late 1990s, he "started getting twitchy" about capital punishment. The "waterfall of DNA exonerations" in noncapital cases bothered him. So did a study about problems in the administration of the death penalty.

And the execution of Gary Graham from Harris County, who insisted the lone eyewitness in his case was mistaken, disturbed him.

"That was the first death penalty case that I think I ever really, really looked at and was bothered by on the innocence issue," Mr. Millsap says.

Doubts about system

After Mr. Graham was executed in 2000, Mr. Millsap publicly called for a moratorium. "I am no longer satisfied that our legal system guarantees the protection of the innocent in capital murder cases," he wrote.

But, he says, he remained "absolutely certain that every person I had prosecuted for the death penalty was guilty and deserved to die."

His statement made a small stir that faded quickly. But his wife's reaction made him mad.

"You're an opponent of the death penalty but don't have the courage to admit it," she said.

"The position that you've taken is that there should not be any more executions until we have a system that guarantees the protection of the innocent. [But] the system will never guarantee the protection of the innocent."

Mr. Millsap eventually realized he agreed with her.

Several years later, the Houston Chronicle called him about Ruben Cantu, a 17-year-old whom Mr. Millsap's office prosecuted for a robbery and murder on the basis of a lone eyewitness. He was executed in 1993, but the witness later recanted his statement.

Mr. Millsap was initially disbelieving that he could have sent an innocent man to death. But after re-examining the case, his opinion changed. For a while he thought Mr. Cantu was innocent, which meant "the most ultimate failure imaginable."

An academic exercise became deeply personal. So personal that he broke prosecutorial ranks and called for abolition of the death penalty.

Today, he doesn't think Mr. Cantu was innocent, but he believes the case should not have been prosecuted as a capital crime because it was based solely on one eyewitness.

The case haunts him.

"It's not about Cantu; it's about what we owe ourselves," he says. "In every criminal case, there but for the grace of God, go you."

He tells his story to law schools, legislators and journalists. On the anti-death penalty circuit, he is "treated like a rock star."

Practical reasons

Mr. Millsap is not particularly comfortable with the movement, which often lionizes death row inmates. "There aren't any innocent lambs," there, he says.

His opposition to capital punishment is rooted in practicality.

"Retribution is an acceptable goal," he says, "so it's really hard for me to identify with, you know, what I refer to is the 'turn-the-other-cheek' crowd.

"Because the sanction is so final, so absolutely final, what we have to have is a system that guarantees the protection of the innocent."

The only way to do that, he says, is to ban executions.

"As long as human beings are making the decisions and they are at every point in the process, the potential for error is there," he says.

Mr. Millsap thinks the chances of outright abolition are small. But practicality may demand a de facto abolition.

"The moralists have been carrying this debate for decades," he says, "and they haven't moved the needle at all. ... What's driving the movement right now is the innocence issue."

He believes Texans can be persuaded to abolish the death penalty, because it costs more to prosecute a capital case through execution than it does to imprison someone for life.

The system "will collapse of its own weight," he predicts.