The Real Reason for Abolition: Texas Poses Greatest Risk of Executing an Innocent


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

For two days in December of last year Harris County Criminal District Court Judge Kevin Fine allowed attorneys representing accused capital murderer John Edward Green to present evidence that the process for carrying out the death penalty in this state is so flawed that it creates an unconstitutional risk that an innocent person could be executed. The two-day hearing in the Green case drew national and international media attention because it involved a challenge to the death penalty in the very State which has executed more people than any other since the executions resumed in this country on January 17, 1977.

Last March, Judge Fine’s decision to hear the issue ignited a swirling legal and political firestorm when he declared from the bench during a pretrial hearing in the Green case that the death penalty as applied in Texas was unconstitutional. Harris County District Attorney lashed out at the ruling, saying: “We respectfully, but vigorously, disagree with the trial judge’s ruling, as it has no basis in law or fact. Words are inadequate to describe this Office’s disappointment and dismay with the ruling; sadly it will delay justice for the victims and their families. We will pursue all remedies.” Texas Gov. Rick Perry and Attorney General Gregg Abbott joined the fray by calling Fine’s decision “an act of unabashed judicial activism.”  A term so often used whenever republicans are confronted with a threatening or novel issue contrary to their ideology.

The following day Judge Fine issued a clarified ruling saying that he had not declared the state’s death penalty itself unconstitutional but had merely called into legal question the procedures under Article 37.071 of the Texas Code of Criminal Procedures for carrying out the penalty. The Judge ordered both sides to be prepared to conduct a hearing on the motion.  The case seemed to simmer, disappearing from the political spotlight while the fall elections played themselves out across the state and nation.

Then early last month the firestorm was reignited when the hearing based upon Green’s motion began.  Green’s attorneys sought to present a host of local, state and national death penalty experts who were prepared to offer evidence why the risk of an innocent person being executed, especially in Texas, has become so great as to render the entire death penalty process unconstitutional. To courtroom observers, this seemed like an honest and reasonable motion considering the gravity of possible sentence.  However, Lykos’ office this time chose a different response to the hearing process by refusing to even participate.  The prosecutors responded to the defense motions to admit evidence with panicked whispers of “no comment” and timid assertions that they would respectfully refuse to participate in the hearing.  This shocked, irritated and eventually amused the local criminal defense bar, who had never known the DA’s Office to remain mute on any point in their zealous application of the death penalty. Finally, the District Attorney sought, and secured, an order from the Texas Court of Criminal Appeals shutting down the hearing until the appellate court could entertain arguments from the parties involved.

On January 12, 2001 the Court of Criminal Appeals issued a final order in the Green case which put an end to any further inquiry into the constitutionality of the death penalty procedures under Article 37.071. In so doing, the appeals court observed that the issues raised before Judge Fine were “… indeed public policy issues, greatly deserving of considerable debate by the appropriate people, in the appropriate forum, and at the appropriate time. They are issues that opponents of capital punishment have been raising since the mid-nineteenth century. Certainly the Texas Legislature is an appropriate forum in which to debate these public policy issues. That is also an appropriate forum to decide whether to abolish the death penalty in Texas or enact statutory or constitutional improvements to the current legislative system. The Legislature will be meeting in the very near future and is fully competent to address these issues. The trial judge correctly questioned whether a pretrial hearing in one particular capital murder proceeding, subject to the presentations only of the two particular parties before it—one criminal defendant and one prosecuting authority—is an appropriate forum to fully develop and debate these general issues. And, implicit in the trial judge’s question, is the legal inquiry whether those general public-policy issues can or should be debated in a single pretrial proceeding before the specific defendant is even placed in jeopardy of being convicted or sentenced.”

Unfortunately, while we do believe that a defendant facing the death penalty should be able to raise any and all arguable motions in his defense, including ones like those raised in Green’s case, we must agree with the Court of Criminal Appeals on one point. Whether or not the death penalty should be abolished either at a state or nation level because of the unacceptable risk of innocent persons being executed is also a public policy issue which must be simultaneously addressed by the legislative branch, and soon.

Even if it could be irrefutably established that one out of every 100, or even one out of every 10, executions resulted in an innocent person being put to death, would that rise to a constitutional level to declare the death penalty “cruel and unusual?” Practically speaking, in the current pro-death political environment, and with make up of our highest court, we think not, just as thousands of wrongful criminal convictions are not enough to declare our country’s entire adversarial criminal trial process unconstitutional.  But it is an issue that must be raised by every defendant facing the ultimate punishment and it should be freely debated in every legislature throughout the United States.  It can only be hoped that Green’s attorneys will continue to raise and preserve this issue throughout the trial, on appeal and eventually to the U.S. Supreme Court.  After all, who knows who will be on the Court’s bench, and what the Country’s temperament will be, by the time this case makes it way up.

The State of Illinois signaled recently it is prepared to follow the lead of New Jersey and New Mexico, both of whom abolished the death penalty over the last five years, after its legislature voted to repeal the death penalty. The Illinois legislative decision was significantly influenced by the fact that 13 of the state’s former condemned inmates were later exonerated, one of whom came within 50 hours of execution. Both New Mexico and New Jersey were also influenced by the fact that scores of condemned inmates have been exonerated since 1973, a total of 138 in 26 states.

The death penalty debate, in reality, is actually a narrow geographical one. The Death Penalty Information Center reported recently that while this country is considered a death penalty nation, executions “are rare or non-existent in much of the nation. Twenty-six of 53 jurisdictions in the U.S. (50 states, the District of Columbia, the Federal Government, and the Military) either do not have the death penalty or have not carried out an execution in at least ten years. Most of those have not carried out an execution since the death was reinstated in 1976. Only 12 states carried out an execution in 2010 and only 7 states carried out more than 1, mostly in the South.”

Thus, the risk of an innocent person being executed is confined primarily to the four leading execution states: Texas, Virginia, Oklahoma, and Ohio. Having executed nearly 40 percent of the 1237 people put to death in this country since 1977 and with a nation-leading 42 DNA exonerations and with 12 former condemned inmates having had their innocence established, the Texas death penalty process poses the greatest risk of innocent person(s) being executed.

But what if it could be irrefutably established that Texas, or some other state, has executed an innocent person? Would the groundswell of public opinion turn against the death penalty so much that it would be abolished nationwide? This is not England in the early 1950s when the wrongful execution of Timothy Evans lead to the abolition of the death penalty in that country. This is America today, a nation at “war on terror” willing to lock people up for the rest of their lives in military detention facilities on nothing more than “suspicion.” We are a nation that will commit and lock up sex offenders for the rest of their lives, preemptively, for what they may do in the future.  We are also an America that has so easily agreed to surrender many of our most cherished freedoms and allow the government to intrude on our most basic liberties so that we may feel safe from the whatever “boogeyman” the government is pushing on us.

While nationwide the number of death sentences being handed down in this country is on the decline, even in Harris County, Texas, once the epicenter of the death penalty, and this can certainly be attributed in significant measure to the growing number of DNA exonerations, we are not confident that the execution of an innocent person would create either a nationwide public demand for an end to the death penalty or create a “constitutional issue” sufficient to prompt the U.S. Supreme Court to overturn a long line of precedents holding the death penalty constitutional.  We must confront the reality that many pro-death advocates consider executing an innocent person just part of doing business in their tough on crime agendas.  After all, they must have done something wrong to get where there were, right?

The question, then, was the Green hearing worthwhile? We think so. One month after the hearing the Houston Chronicle (Jan. 2, 2011) carried an editorial whose headline read: “The Death Penalty: It’s time for capital punishment to become Texas history.” The first three paragraphs of the editorial stated:

“The death penalty in Texas is fraught with demonstrable error, and the people of the state seem more willing to deal with that fact than their leaders.

“Events of the past year have convinced us that defendants have been executed on the basis of invalid evidence. They may or may not have been guilty, but the fact that we have convicted people based on faulty evidence leads inexorably to a horrible likelihood—that we have executed innocent people. The high number of death row prisoners eventually exonerated makes a strong case that other innocent but less fortunate prisoners have been wrongfully put to death.

“We don’t lose sleep over the execution of guilty murderers. But the possible or probable execution of the innocent should trouble every Texan.”

Judge Fine’s hearing, and the attorneys who brought it about, contributed significantly, we believe, to the Chronicle’s decision to editorialize against the death penalty. While the judicial door may have been shut in their faces for the time being, this judge and group of attorneys managed to open wide the doors of public opinion. Granted, more Chronicle readers opposed the editorial than favored it, their opposition did not undermine the significance of the sentiments expressed.

We do not believe there is much chance that the death penalty will “become Texas history” in the near future, but if editorials like the one that appeared in the Chronicle continue to shape and educate the public debate about the issue, not only will the rate of death sentences in the state hopefully continue to decline but the number of executions carried out will also be reduced, lessening the possibility of innocent persons being executed.

Thus, at the end of the day, the Texas criminal defense bar, particularly in Harris County, owe respect and gratitude to the attorneys in the Green case, as well as to Judge Fine, for their willingness to put this matter to a hearing and thereby expose dark side of the death penalty. While they may have lost the battle on one front, they certainly opened up another which may ultimately prove to have a greater likelihood of success in the war against the death penalty.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair