Nationally Recognized Experts, Retired U.S. Supreme Court Justice Cite Risk of Innocents Being Put to Death, State of Texas Replies “No Comment”

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

That question could reasonably be asked of any state that maintains the death penalty. Every system of punishment is cracked in one way or another. The fact that 138 condemned inmates in 26 death penalty states have been exonerated since 1973, and the fact that there have been261 DNA exonerations in this country since 1989, and the fact that our law books are filled with reversals of criminal convictions and death sentences offers compelling evidence that our entire criminal justice system, and, in particular, our death penalty systems is if not broken, certainly flawed. Earlier this year Harris County Criminal District Court Judge Kevin Fine stirred considerable legal and political controversy when he declared from the bench that Texas’ death penalty procedures were unconstitutional. The backlash was so intense, from the state’s attorney general to its governor, that Judge Fine clarified his ruling the next day by saying he had not actually declared the death penalty process unconstitutional and ordered attorneys in the case to submit additional legal arguments detailing how the process was so flawed that it violated the “cruel and unusual punishment” provisions of the Eighth Amendment.

University of Houston Law Center Professor Sandra Guerra Thompson was quoted at the time in the Houston Chronicle at the time as saying: “You never know [if such a ruling will withstand appellate review), but I don’t see it happening at this time. Technically, they’re [the appellate courts] are bound by precedent. There are laws on the books that have ruled on this type of question.” But Professor Thompson added that Judge Fine may have simply wanted to trigger a dialogue in the court system about the death penalty. “If they [judges] feel strongly enough, sometimes they’ll grant a motion like this to buck the system, just to stir the waters.”

Judge Fine’s ruling came in the case of John Edward Green who was indicted for capital murder in an “ambush robbery” in southwest Houston in June 2008 which left Huong Thien Nguyen dead and her sister critically wounded. The alleged evidence against Green is a palm print, an eyewitness identification, and a jailhouse informant—all of which are flawed according to Green’s attorneys, Richard Burr, John “Casey” Keirnan, and Robert Loper. The attorneys have argued in extensive pretrial motions and briefs that their client is innocent, and because the Texas death penalty process is so broken in that it creates a high risk of innocent people being put to death, their client cannot receive a fair trial.

Judge Fine was not up for re-election on November 2, 2010 and was spared the fate suffered by virtually all the Democratic candidates in Harris County, Texas, with the push of the Republican sweep.  However, Judge Fine was not spared from attack from the Right as he was used by the Harris County Republican Party as the “poster boy” of judicial activism that needed to be removed from office. Whether Judge Fine anticipates his own re-election two years is uncertain or he has an intellectually honest belief that the death penalty issue raise in this case is ripe for hearing is uncertain.  From what we could see of his demeanor and the reasonableness of his rulings, the Judge was simply conducting a fair hearing on a issue raised by a defendant who faces the ultimate penalty, which is just what should be required of any judge. What is certain is that Green’s attorneys put together an array of national and local experts for an evidentiary hearing that would put a spot light on the inherent problems of death penalty and the criminal justice system as a whole.

The hearing, which immediately became evident would either be historic or historically strange, commenced on December 6, 2010. Harris County prosecutors objected to the hearing immediately after it began on the grounds that the constitutionality of the death penalty is well-settled state and federal law; that Green did not have “standing” to challenge whether innocent persons have been put to death in Texas; and finally that Green’s challenge to the death penalty system was “premature” because he has not yet been convicted and/or sentenced to death.

Judge Fine listened to the State’s objections before saying he would defer ruling on them until after the hearing and all the evidence had been presented. Obviously believing that the hearing was a showcase for a debate against the death penalty in a judicial setting, District Attorney Pat Lykos ordered her three assistants representing the State to “stand mute” and not participate in the hearing. At one point, a senior trial attorney for the Harris County District Attorney’s Office could be overheard advising her colleague to say “no comment” in response to the Court’s inquiry into whether the State had any objections to the admissibility of a document.  Local defense lawyers, who had assembled to watch the court proceedings, were “stunned” by the District Attorney’s callous disregard and disrespect for established court procedures. Judge Fine was not pleased either. He told the three prosecutors they would attend the hearing and they would participate, regardless of whether or not they elected to object or cross-examine witnesses throughout the hearing.

By the end of the first day of the hearing, Lykos had dispatched her assistants with a writ of mandamus to the Texas Court of Criminal Appeals requesting that the hearing be halted. Prosecutors argued Judge Fine was exceeding his authority by holding a hearing on the constitutionality of the death penalty itself. By the close of business the following day, December 7, the appeals court ordered Judge Fine to shut down the hearing and gave the parties involved 15 days to brief their positions about the hearing as well as the court’s decision to shut it down.

But Green’s defense team during the two days of testimony managed to get some compelling testimony into the record. Their first witness, Richard Dieter, the executive director of the Death Penalty Information Center, testified about the 138 condemned inmates who have been exonerated since 1973. Dieter told the court that 12 of those exonerations came from Texas with the latest being the case of Anthony Graves. Dieter, who said his group does not take a stand on capital punishment itself, informed the court that Texas ranks third behind Florida and Illinois in such exonerations. And in response to a question by attorney Burr, Dieter said he believes the “accelerated rate” of exonerations is a definite indication that the nation’s death penalty systems are not working properly.

Green’s defense team then called Professor Thompson to the stand. Professor Thompson, who is director of UH’s Criminal Justice Institute and a member of the Timothy Cole Advisory Panel on Wrongful Conviction, offered testimony about factors contributing to wrongful convictions, including false eyewitness identifications and testimony of “jailhouse informants”.

Tuesday’s hearing continued with Green’s defense team presenting other impressive witnesses. The first to testify was a prominent University of Virginia Law School professor named Brandon Garrett who, like Dieter, is recognized as a highly respected “expert” on exonerations, Garrett has closely studied more than 250 capital and non-capital exonerations. Through an attention-grabbing Power Point presentation, the law professor illustrated to the court that an overwhelming majority of exonerations involve racial minorities. Attorney Burr asked Garrett if that meant African Americans (Green is African-American) were more likely to be wrongfully convicted and the professor stated: “We can say that African Americans are disproportionately represented among the known wrongful convictions.”

Green’s defense team was methodical in their pursuit of making a credible case against the state’s death penalty process. They had established that 75 percent of all DNA exonerations involved mistaken eyewitness identification with the percentage being even higher in Texas at roughly 80 percent. The attorneys then turned their attention to the use of “jailhouse informants” in capital cases. They called Los Angeles Loyola Law School Professor Alexandra Natapoff to testify about this issue. The former Baltimore public defender, who has studied the use of informants in criminal trials, informed the court that it has been clearly established over the past couple decades that jailhouse “snitches” are highly unreliable and a significant factor contributing to wrongful convictions. She added that while some states have established safeguards involving the use of jailhouse informants, Texas is not one of them. That testimony was not entirely correct. The Texas Legislature during its 2009 session passed a law requiring that “snitch testimony” be corroborated (here and here).

Then, as expected from the stormy clouds hanging over the hearing process, the Court of Criminal Appeals sent down its lightning bolt from on judicial high. The hearing was shut down just before the New York-based Innocence Project’s co-director, Barry Scheck, was set to join the Green defense team is presenting evidence that the State of Texas had executed at least two innocent men: Cameron Todd Willingham and Claude Jones. Although precluded from presenting this evidence, Green’s defense team nonetheless deserves tremendous credit in the way they presented their case to the Court. They called highly respected experts who testified about subject-matter they had thoroughly researched and studied for years. They gave the court a glimpse into the darker, seamier side of the death penalty.

But at the end of the day the two-day hearing amounted to nothing more than judicial theatre—and had the hearing been allowed to proceed until its ultimate conclusion, assuming Judge Fine found the Texas death penalty process unconstitutional, the decision most likely would not have survived an appeal to the Texas Court of Criminal Appeals or the United States Supreme Court.

We believe that all the substantial issues presented by Green’s defense team at the hearing, as well as those they were prepared to present, will continue to serve the social/political debate about the wisdom of the death penalty if they are honestly and fairly made to the upcoming Legislature as it considers the recommendations made in a report by the Timothy Cole Advisory Panel.

The U.S. Supreme Court in Gregg v. Georgia held that the death penalty per se does not violate the cruel and unusual punishment provisions of the Eighth Amendment. The Court in Baze v. Rees also held that lethal injection, the method of execution adopted by almost every death penalty state, does not violate the Eighth Amendment.  As significantly, the high court has held that an inmate does not have a constitutional right to DNA testing and there is no constitutional problem with the use of “jailhouse snitches.” Finally, the Supreme Court has left open, and remain quite uncertain about, the issue of whether an “actually innocent” condemned inmate can present that claim, standing alone, in federal court absent another recognized constitutional violation.  A sad state of affairs indeed, but nonetheless the current state of the law.

We wholeheartedly agree with New York Times columnist Bob Herbert’s November 29, 2010 Op-Ed piece that America’s death penalty is “Broken Beyond Repair.” Herbert referred to an essay former U.S. Supreme Court Justice John Paul Stevens published in the New York Review of Books in which the 90-year-old former justice said he believes the death penalty is “unconstitutional.” That’s a remarkable turnaround inasmuch as Justice Stevens, as Herbert and Times reporter Adam Liptak noted, once believed the death penalty could be administered fairly and rationally but because of “personnel changes on the court, coupled with ‘regrettable judicial activism,’ had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

We wish Justice Stevens had developed this constitutional position while still on the bench. Perhaps some of 5-4 decisions against death penalty related matters would have been decided another way. But Stevens’ observation that the death penalty is “infected with politics” is precisely why Judge Fine’s hearing was doomed to defeat before it started and gives us a prime example supporting the argument that this overly politicized punishment is unconstitutional. It would be a difficult search to find any other issue that would cause the State of Texas to stand moot with ‘no comment” at an official court hearing other than this sacred cow.

With no ill-will intended, Judge Fine does not have any more political credibility on this issue; he has been unfairly attacked by right-wing political campaigns and saddled with the unshakable label of “judicial activist.” While this is not an intellectually honest position, given the Judge’s limited time on the bench and almost no evidence of “activism” whatsoever, it was politically effective and contributed to the shellacking of the democrats at the polls.  The Timothy Cole Advisory Panel, however, is loaded with political credibility. It was the brainchild of the Texas Legislature itself. If death penalty opponents at both the state and national level want to correct the broken fences in the state’s death penalty system, they should join forces and fight to have the Timothy Cole Advisory Panel recommendations turned into law.  That would be a tiny first step in removing this unholy stain from the State of Texas’ judicial system.

But we still tip our hat to Judge Fine and Green’s defense team for having the moral will and political courage to at least trigger the death penalty debate and push it to a higher level.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair