Texas Prosecutors Giving Death Penalty Hearing the Silent Treatment

Update (12/8/2010):  The Texas Court of Criminal Appeals, the state’s highest court whose judges run for the bench in partisan elections, has suspended the hearing into the constitutionality of the Texas death penalty

As a hearing to determine whether the Texas death penalty is unconstitutional began yesterday, prosecutors, who are clearly appalled that the question could even be considered, announced that they will remain silent throughout the process.  These are adults, not five-year-olds, so by all accounts they will not hold their breath until they turn blue, but they have attempted to appeal to a higher court to shut down the hearing

If that doesn’t work then, while defense attorneys provide Harris Country District Judge Kevin Fine with evidence that Texas capital punishment has become a mish-mash of bias and error that unacceptably risks executing the innocent (and there’s plenty of evidence to provide), lawyers for the state will do … nothing. 

Ironically, this means the prosecutors will be giving the Texas death penalty the same woefully inadequate legal representation that so many capital defendants have gotten.

Evidence that Texas has already executed innocent people, and that efforts to reform or improve the system have failed or been derailed by politics, continues to mount.  By not participating in this hearing, these prosecutors are exemplifying the attitude of so much of Texas leadership who, when confronted with clear proof that the death penalty system is broken, simply refuse to act.

Is Texas Death Penalty Unconstitutional?

That’s the question that District Judge Kevin Fine in Houston will be deciding in the next couple of weeks.  A hearing in the case of Texas v. Green, starting Monday, Dec. 6, will put the Lone Star State’s capital punishment system on trial, and by all accounts it will be a wide-ranging affair.  Evidence of the sentencing and execution of innocent men, the use of bogus science, and other egregious mistakes and examples of general incompetence will be considered to determine if the death penalty, as currently administered in Texas, is too prone to error to be allowed to continue.  (Green’s challenge to the Texas death penalty is here.)

The constitutionality of the death penalty in principle is NOT under consideration, just the way it is practiced.  The cases of Claude Jones, Cameron Todd Willingham, and Ernest Ray Willis will among the primary examples of how deeply flawed the practice of Texas capital punishment has become.  Well-intentioned reform efforts from, for example, the Texas Forensic Science Commission, have been smothered by political pressure, so maybe the courts can be the avenue for serious investigations into the major malfunctions of the Texas death penalty.

The state’s judicial system, with judges elected all the way up to and including the highest court, has not been known for courageous critical examinations of Texas justice, but evidence of wrongful convictions, wrongful death sentences, and wrongful executions may have – at last — become impossible to ignore or sweep under the rug.

Whatever the outcome of this hearing, it will be a welcome ray of sunlight on the dismally dysfunctional Texas death penalty.

Texas Judge to Put Death Penalty on Trial

The Texas judge who ruled that the Lone Star State’s death penalty violates basic constitutional rights has revised his order.  Last week,  District Judge Kevin Fine of Houston flatly declared that Texas’ capital punishment statute is unconstitutional because it risks executing the innocent.  

Today, he rescinded that ruling, but scheduled an April 27 hearing at which both prosecutors and defense lawyers will make their case for and against the Texas death penalty.

Texas Death Penalty Ruled Unconstitutional; Appeal Likely

No one seems to think it will hold up on appeal, but yesterday a recently elected judge in Houston, Texas ruled that the Lone Star State’s death penalty is unconstitutional.  According to the Houston Chronicle, the Judge, Kevin Fine, stated that:

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed. It’s safe to assume we execute innocent people.”


“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty? I don’t think society’s mindset is that way now.”

The ruling came in response to a pre-trial motion filed by attorneys for John Edward Green, who is charged with a June 2008 murder.  Green has pleaded not guilty.

Reaction from the Texas pro-death penalty establishment was swift. Harris County District Attorney Patricia Lykos issued a statement proclaiming that: “Words are inadequate to describe the Office’s disappointment and dismay with this ruling.”

Texas Attorney General Greg Abbott responded with familiar talking points.  He condemned the ruling as “judicial activism,” and he lamented that the judge’s decision “delays justice and closure for the victim’s family,” as if an execution were right around the corner rather than at least 10 years away (assuming, of course, that Green is convicted).

Like other elected officials in the state, elected judges in Texas have traditionally been enthusiastic and active promoters of executions. Perhaps judge Fine’s ruling will encourage his fellow judges to take a more critical and independent look at the death penalty in Texas.