What is actual innocence?

‘A Necessary Evil’: The Cost of Confidential Informants, a KSAT 12 Defenders Investigation, airs Feb. 1 at 9 p.m.

. (KSAT)

This story is part of a KSAT 12 Defenders investigation into the use of confidential informants by law enforcement. The one-hour special report airs on KSAT 12 on Feb. 1 at 9 p.m. Find more here.

When it was discovered a confidential informant used by the Bexar County Sheriff’s Office Narcotics Unit had planted drug evidence in cases that resulted in the arrest and convictions of three San Antonio residents, the Bexar County District Attorney’s Office Conviction Integrity Unit set out to overturn the wrongful convictions.

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In doing so, prosecutors also supported the defendant’s claims that they were entitled to actual innocence.

Before tuning in to KSAT 12 on Tuesday, Feb. 1 at 9 p.m. for the one-hour investigative special “‘A Necessary Evil’: The Cost of Confidential Informants,” it may be helpful to get familiar with the term “actual innocence.”

What is actual innocence?

A claim of actual innocence is raised when a defendant appeals a criminal conviction. To prove actual innocence, the defendant must submit new evidence to the court that was not available at the time of their trial.

In the case of Rexina Linan-Juarez, John Cape and Louie Garcia, they made the claim of actual innocence after it was discovered the informant used by deputies to raid the home of Cape and Linan-Juarez had planted drug evidence in an unrelated case. The trio argued that had they known the informant was unreliable, they would have challenged the search warrant used by deputies, and they would not have accepted plea deals.

Matt Howard, Director of Bexar County’s Conviction Integrity Unit, said there is more than one type of actual innocence.

“There are a couple of different types of actual innocence. There’s the idea of factual, actual innocence. You have an alibi that says you just weren’t there,” Howard said. T”hen there’s procedural actual innocence where you can say that: but for a violation of the Constitution, for instance, you would not have been convicted,” Howard said. “In this case, we’re talking about procedural actual innocence. But for the Fourth Amendment violations that came about because of this, confidential informant or the actions of this confidential informant, police would never have been there. They would have never been able to execute that search warrant, never been able to enter into the home.”

How hard is it to get actual innocence?

The Court of Criminal Appeals has described proving a claim of actual innocence as a “Herculean task”, meaning it is an incredibly difficult legal process.

Dayna Jones, a San Antonio criminal defense attorney, was appointed to represent Linan-Juarez, Cape and Garcia. She explained to the KSAT 12 Defenders why these cases are so difficult.

“The system really is set up for finality with convictions. We want somebody that is going to say they’re guilty. If somebody is convicted by a jury, it’s really hard to undo,” Jones said. “In this particular case, me, the DA’s office and the trial judge, all believed that they should have been entitled to actual innocence.”

What rights and benefits come with a finding of actual innocence?

Court of Criminal Appeals Judge Bert Richardson explained in a 2020 interview with KSAT that defendants who have their convictions set aside with a declaration of actual innocence are automatically entitled to certain benefits from the state of Texas.

“They’re entitled to $85,000 a year for every year they’ve been wrongfully imprisoned. They’re entitled to an annuity that goes along with that, as well as health and educational benefits,” Richardson said.

Who got actual innocence in these cases?

From the time they were arrested, Linan-Juarez, Cape and Garcia claimed they were set up because the drugs found by deputies in the home were not theirs. Complicating their claim was the fact deputies also found personal-use amounts of drugs inside the home, some of which was claimed by Linan-Juarez and Cape.

Louie Garcia did not live at the home but a bank bag containing 2 baggies of meth and cash was located outside on the front porch next to Garcia’s tools. Deputies also claimed to find another bag of drugs inside the home, next to Garcia’s feet, after they took him inside to be questioned. Garcia denied ownership of the drugs.

Unable to prove the drugs were planted, Linan-Juarez took a plea deal for 10 years of deferred adjudication — a form of probation that avoids a final conviction upon successful completion — Cape took a plea deal for 10 years in prison, and Garcia took a plea deal for 8 years in prison.

Because Linan-Juarez was not technically convicted her case was able to be reviewed and overturned at the local level. Cape and Garcia’s cases would have to be heard by the Court of Criminal Appeals.

“It was fortunate for us that she had been given a form of probation on her case because her case could be handled here at the county level,” said Matt Howard. “Now, the other two co-defendants, John Cape and Louie Garcia, their cases have to go to the Court of Criminal Appeals for a final determination on whether or not whether that court’s going to find them actually innocent.”

So when the district court judge overturned the cases in August of 2020 it meant one thing for Linan-Juarez and something different for Cape and Garcia.

“Basically, the moment that the trial court judge found Rexina to be actually innocent, she was exonerated and found actually innocent,” Howard said. “The moment that the trial court judge found John and Louie to be actually innocent, that became the recommendation of the trial court to be sent up to the Court of Criminal Appeals. And they can consider the trial court’s recommendation. They give it great deference, but they don’t necessarily have to follow it.”

Ultimately, the Court of Criminal Appeals ruled in July 2021 that Cape and Garcia were entitled to have their cases overturned but they did not agree that they were entitled to actual innocence. The court couldn’t get past the fact that some drugs were found in the home separate from what the informant planted.

The court found:

“… the trial court recommends that relief be granted on the basis of actual innocence, because but for the false information provided by the confidential informant, the State would not have been able to conduct a valid search, and would not have brought any charges at all. We disagree.

Although the “newly-discovered” evidence does cast doubt on the validity of the search warrant, and does support Applicant’s claim that the confidential informant planted the drugs that were found in the bathroom and in a bank bag found outside the house, Applicant has not demonstrated that he did not commit a lesser-included offense by possessing the drugs not alleged to have been planted by the confidential informant. Therefore, he does not qualify for relief on the basis of actual innocence.”

Attorney Dayna Jones respected the ruling but disagreed with the court’s reasoning.

“This larger amount of drugs we know was not theirs. The drug trafficking part of it. They know, but they’re saying because there were little amounts of drugs. The problem that I really have with Louie’s case is he didn’t live there. There was nothing that was connected to him. So, I’m very disappointed overall for John and Louie that they didn’t get the actual innocence, but especially for the person who didn’t live there,” Jones said. “I don’t agree with their finding on this one, but we are very happy that they did find that they should have their exonerations and that it was a wrongful conviction.”

WATCH KSAT 12 Feb. 1 at 9 p.m.

You’ll learn more about this case and the investigation and fallout in “‘A Necessary Evil’: The Cost of Confidential Informants,” a KSAT 12 Defenders investigation airing on KSAT 12 on Tuesday, Feb. 1 at 9 p.m.

About the Authors:

David Raziq is the executive producer for the Defenders investigative team.

Dale Keller is senior news photographer at KSAT-12.