Stalled Hearing Put Death Penalty on Trial

Lawyers in Harris County District Judge Kevin Fine's courtroom were set to prove this week that Texas' imposition of the death penalty is capricious – so much so as to risk the execution of an innocent person. But on Dec. 7, the hearing was put on hold after the state Court of Criminal Appeals issued a stay in the proceedings. Early this year, Fine ruled Texas' use of the death penalty unconstitutional, but after Gov. Rick Perry and Attorney General Greg Abbott balked – and Abbott called Fine an "activist" judge – Fine rescinded the order and instead set this hearing, requested by lawyers of capital defendent John Edward Green. Green is charged with killing a woman during a 2008 robbery in Hous­ton; his lawyers say he's innocent. The proceedings began Monday with testimony about the prevalence of wrongful convictions in Texas and about the risk factors that lead to them – including faulty eyewitness identification (implicated in more than 75% of Texas' wrongful convictions), which Green's lawyers say plays a part in their client's case. Prosecutors stood mute during the hearing, on orders from Harris County District Attorney Pat Lykos, reports the Houston Chronicle. Then they appealed to the CCA, which has now stepped in to halt the hearing until lawyers for both sides can file briefs on whether the proceeding should be allowed to continue at all. Green's lawyers said Tuesday they were disappointed that the CCA had stopped the hearing, which was set to last two weeks. "The claim by Mr. Green is based on a constitutional theory never before examined by the Texas courts and derives from the mounting evidence demonstrating that the kind of evidence against Mr. Green ... is often inaccurate and leads to conviction of the innocent," they said. "We have confidence that when the [CCA] fully appreciates the evidence and the constitutional claim, it will allow the hearing to resume." For more on this, see "Is Death Unconstitutional?" (Newsdesk, Dec. 3) at austinchronicle.com/newsdesk.