Harris County prosecutors “stand mute” in death penalty hearing

December 6, 2010

Law & Courts

Perhaps the biggest news from the first day of a hearing on the constitutionality of the Texas death penalty is that prosecutors from Harris County — once known for sending more people to death row than any other jurisdiction in the country — have chosen to take no active role in the proceedings.

The almost certainly unprecedented hearing is being held in the felony trial court of state District Judge Kevin Fine, who earlier this year declared the death penalty as applied in Texas unconstitutional by granting one of several motions filed by attorneys for John E. Green, Jr., 25. He is accused of capital murder by fatally shooting Huong Thien Nguyen, 34, and critically wounding her sister in an ambush robbery in southwest Houston in June 2008.

Fine later clarified, then rescinded his order, asking Green’s defense attorneys to provide evidence to buttress their claim that the state’s death penalty scheme has an inherently unacceptable risk under the Eighth Amendment that innocent people can be, and probably have been, executed. [The attorneys later filed a much more extensive motion laying out their arguement.]

Green’s lawyers — Robert Loper, John “Casey” Keirnan and Richard Burr — have assembled an array of expert witnesses to testify to the issues they say create that unacceptable risk, from their own defense investigators to nationally known academics to a former governor. The hearing is expected to last through late next week.

As the hearing began Monday, Assistant District Attorney Alan Curry immediately objected to the hearing taking place on the grounds that federal and state case law have already settled the death penalty’s constitutionality, that Green does not have standing to challenge whether Texas has executed any actually innocent defendants, and that his claim is “premature and unripe” since he has not been convicted or sentenced.

Curry also challenged the relevance of much of the anticipated evidence, calling the defense team’s motion “a broad challenge of the validity of the criminal justice system in general, and the death penalty specifically.”

Fine, relying on a Texas Court of Criminal Appeals ruling on a challenge of the hearing by Harris County District Attorney Pat Lykos, told the prosecutors that he would withhold ruling on their objections until after he heard the evidence presented by Green’s defense team.

Curry later asked for a “running objection” to all evidence, including testimony and exhibits, offered by Green’s attorneys during the hearing. Curry told the judge that prosecutors did not intend to participate in the hearing at all.

Keirnan, one of Green’s attorneys, objected by saying the state had already participated in the duly called hearing. Fine agreed, ordering the prosecutors to remain at the counsel table even if they didn’t plan to cross-examine witnesses.

Later, Curry told Fine that his boss, Lykos, had ordered him and his co-counsel — Bill Exley and Carolyn Allen — to “stand mute” during the proceedings. Fine said he understood and respected their position, but that he would take their silence as meaning they had no objections to the evidence presented.

As their first witness, the defense attorneys called Richard Dieter, executive director of the Washington-based Death Penalty Information Center, a nonprofit research organization. Dieter, who said the organization took no position on capital punishment itself, “other than it should be constitutional,” testified about DPIC’s and other organizations’ findings on the number and causes of exonerations of condemned defendants.

Since 1973, when the U.S. Supreme Court reinstated the death penalty, Dieter testified, there have been 138 exonerations across the country in which people convicted and sentenced to death later had their convictions overturned and all charges against them related to those cases dropped.

Texas has been the home of 12 of those exonerations, he said. (The most recent was the case of Anthony Graves, the Brenham man whom prosecutors in October said was innocent of the multiple murders he had been convicted of in 1994.) Texas ranks third behind Florida and Illinois in the number of exonerations, Dieter said.

Asked by Burr if the “accelerated” rate of exonerations over the past two decades showed that “the system is working,” Dieter said he didn’t believe so. Many of those exonerations have come about because of “fortuitous circumstances,” such as law or journalism students or media outlets that undertake investigations that ultimately lead to a condemned person’s exoneration.

Asked if DPIC had a similar list of people who could be proven to be wrongly executed, Dieter said it did not. But the number of exonerations alone indicates that is a strong likelihood, he said. The problems associated with appealing a death penalty case only exacerbate that possibility, he said.

“It’s comparable to catching a faulty engine in flight and bringing (the aircraft) down,” he said.

The defense team next called Sandra Guerra Thompson, a professor at the University of Houston Law Center and director of that school’s Criminal Justice Institute.

Thompson, a member of the Timothy Cole Advisory Panel on Wrongful Convictions created last year by the Texas Legislature, testified about the factors she’s studied that lead to wrongful convictions, including false eyewitness identifications based on individual and systemic variables and testimony of “jailhouse informants”, and the “consensus” among experts across the country on reforms for those issues.

Green’s lawyers ended Monday’s testimony with that of Brian Benken, a criminal defense attorney and licensed private investigator, and his associate, Jim Willis, whom they hired to investigate the case. They testified about their knowledge of the Houston Police Department’s investigation of the shootings and the evidence — including eyewitness identification, fingerprints and expected testimony from a “jailhouse informant” — as it related to the factors the defense’s expert witnesses will address throughout the hearing.

Fine adjourned the hearing until 10:30 a.m. Tuesday. The next witnesses slated to testify are Brandon Garrett, a law professor at the University of Virginia described as an expert on eyewitnesses, informants and junk science in wrongful convictions, and Alexandra Natapoff, a law professor at Loyola Law School in Los Angeles described as an expert on snitches.

Prosecutors said they would not comment on the hearing until after Fine makes a ruling.

UPDATE: On Tuesday, ruling on a motion filed by the Harris County District Attorney’s Office, the Texas Court of Criminal Appeals ordered a stay halting the hearing.

CORRECTION: The original version of this post gave an incorrect spelling of the first name of Assistant District Attorney Carolyn Allen.

Mark W. Bennett, a Houston criminal defense attorney and author of the blog “Defending People,” offers his take on Monday’s proceedings here. Bennett provided the links to the court documents. Defense attorney John Floyd and paralegal Billy Sinclair, authors of the blog “Criminal Jurisdiction,” offer their take here. Murray Newman, another defense attorney and author of the blog “Life at the Harris County Criminal Justice Center,” offers his take here.

RELATED: Anthony Graves, once condemned, relishes newfound freedom and Anthony Graves and his “angel” recount fight for freedom

Copyright © 2010 Ken Fountain. All rights reserved.

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About Ken Fountain

I'm a journalist and writer in Houston, Texas. My areas of specialty include law and courts, local government and energy and environmental issues. You can follow me on Twitter at @twitter.com/kenfountain and email me at kenfountain1 (at) gmail (dot) com.

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2 Comments on “Harris County prosecutors “stand mute” in death penalty hearing”

  1. John Floyd Says:

    Ken, nice job reporting on the Green hearing. Good seeing you at the court house. Keep up the good work.


  2. Ken Fountain Says:

    Thanks very much, John. Nice to see you, too.


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