Appeals court orders stay in death penalty hearing

December 7, 2010

Law & Courts

A Texas appeals court late Tuesday called a halt to the extraordinary hearing on the constitutionality on the death penalty in Texas heard over the past two days in a Harris County trial court.

The Harris County District Attorney’s Office, which sought the stay in a motion for reconsideration filed late Monday with the Texas Court of Criminal Appeals, announced in a press release that the court had notified the office that it “on its own motion, has granted a stay in the death penalty hearing regarding The State of Texas versus John Edward Green being held in the 177th District Court.”

That was exactly the relief prosecutors sought in their 12-page motion filed with the appellate court about 6 p.m. Monday. They argued, as they essentially had in an earlier motion that the appellate court denied in November, that state District Judge Kevin Fine was going beyond the bounds of his authority in holding a hearing to determine the constitutionality of the death penalty, which prosecutors argue has already been settled by federal and state case law.

The appeals court gave prosecutors and defense attorneys 15 days to respond to its order by drafting legal briefs with their stated positions.

Green, 25, the defendant in the case, 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.

His lawyers, in their 6-page response to the prosecution’s motion (with appendices), argued that nothing had changed since the court’s earlier refusal to halt the hearing except that it began with testimony Monday. They also argued that prosecutors misstated what actually happened during Monday’s proceedings, in which the prosecutors remained in the courtroom while “standing mute” under the orders of District Attorney Pat Lykos.

Prosecutors Alan Curry, Bill Exley and Carolyn Allen stuck to that policy during Tuesday’s testimony elicted by defense attorneys Robert Loper, John “Casey” Keirnan and Robert Loper from two expert witnesses on problems associated with the prosecution of capital offenses.

Before that, however, Fine pointedly asked Burr, who has taken the defense lead in the evidentiary hearing, about how their presentation related to case law in their argument that the Texas death penalty scheme, as applied, violates the Eighth Amendment prohibtion against “cruel and unusual punishment.” They maintain it has an unacceptable risk that innocent people can be, and have been, executed. Ultimately, Fine said Burr had satisfied him that the questions he was being asked to decide were pertinent to the case against Green, who is still awaiting trial.

First up among the defense witnesses was Brandon Garrett, a professor at the University of Virginia School of Law, who testified at length about his extensive research on more than 250 people exonerated from convictions (for both capital and non-capital offenses) based on DNA evidence across the country since 1989.

When Garrett, testifying with the aid of a PowerPoint presentation of more than 90 slides, told the court that defendants from minority populations make up the vast majority of exonerated convicts, Burr asked him if that meant that African-Americans were more likely than people of others to be wrongly convicted. (Green, the defendant in the case, is black. The victims were Vietnamese-Americans.)

“We can say that African-Americans are disproportionately represented among the known wrongful convictions,” Garrett said.

Garrett spoke at length about three factors which he said are among those primary responsible for wrongful convictions — eyewitness identifications of suspects, forensic analysis, and testimony by informants. Green’s defense attorneys have said that those factors make up the entirety of Harris County prosecutors’ case against their client, who maintains his innocence.

Garrett said that among the more than 250 known exonerations based on DNA evidence, six had been defendants in cases from Harris County. All six involved mistaken eyewitness identifications and five involved problems with the use of forensic evidence, he said.

Asked by Burr if capital cases have any higher standards of reliability of evidence than non-capital ones, Garrett replied negatively.

“Unfortunately, in capital cases there is no difference in the standards for admitting evidence. There is no heightened standard of reliability, but there should be,” he said.

The defense team next called Alexandra Natapoff, a professor at Layola Law School in Los Angeles and a former Baltimore assistant public defender who has extensively studied the use of criminal informants, known as “snitches,” by prosecutors across the country.

Natapoff testified that the use of snitches has been demonstrated over the past two decades to be highly unreliable and a primary factor wrongful convictions.

She said that the unreliability of information provided by criminal offenders stems largely from the “secretiveness” employed by police and prosecutors in obtaining that information in a system that is “largely unregulated and off t he books.”

The problem is enhanced by the “entrepreneurial quality” of criminal informants, who she said testified have developed “very sophisticated methods” to manufacture evidence against others in order to gain some benefits. Those benefits can include leniency in prosecution or sentencing against themselves, improvements in their own incarceration conditions, and even benefits to others such as family members.

Questioned by Loper, Natapoff said criminal informants are different from most other witnesses who testify in trials in that they are testifying “for their own benefit.” Even in the case of paid expert witnesses, she said, there are safeguards in place such as pretrial evidentiary hearings to determine the validity of their testimony.

“The core danger is the existence of the deal, either explicitly or implicitly,” Natapoff said. Even if prosecutors don’t offer a tangible benefit to “jailhouse informants” prior to their testimony at trial, there is more often than not an expectation that there will be in the future, she said.

She testified that while some states, including Illinois, have instituted safeguard such pretrial “reliability hearings” for criminal informants, Texas is not one of them. But, she noted, Texas has recently enacted two separate requirements for corroboration of criminal informant testimony, including “jailhouse informants” and informants in drug cases.

Loper asked Natapoff about the fact that he had previously discussed with her the evidence, in broad terms, anticipated to be used against Green. Natapoff testified that the evidence — especially the use of criminal offenders, would “enhance the likelihood of a wrongful conviction.”

The Court of Criminal Appeals stay issued Tuesday evening comes at a particularly crucial point in the hearing. On Wednesday, the defense team was to be assisted by Barry Scheck, co-director of the national Innocence Project, and San Antonio defense attorney Gerry Goldstein, in the questioning of witnesses in the controversial Cameron Todd Willingham and Claude Jones capital cases. Critics contend both men were wrongly convicted and executed.

UPDATE: On Jan. 12, the Texas Court of Criminal Appeals issued an order agreeing with  the Harris County District Attorney that it isn’t proper for a state court to hold a hearing on the constitutionality of a law. The order permanently ended the hearing in Judge Fine’s court.

On July 6, in the midst of jury selection that lasted over a month, John E. Green Jr., the defendant in the case, pleaded guilty to a lesser murder charge in exchange for a 40-year term, the Houston Chronicle reported. Chronicle reporter Brian Rogers wrote about reaction to the plea bargain here.

NOTE: Thanks to Mark W. Bennett, a Houston criminal defense attorney and author of the blog “Defending People,” for providing links to the court documents. On Dec. 22, Bennett wrote about the mandamus issues in the stay. He also posted the briefs filed with the appeals court here, including a link to 19 documents from the case.

RELATED: Court of Criminal Appeals ends death penalty hearing;  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 and email me at kenfountain1 (at) gmail (dot) com.

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  1. Appeals court orders stay in death penalty hearing (via Fountain's Pen) « The EastEnder Notes - December 8, 2010

    […] by EastEnder Notes in Uncategorized A Texas appeals court late Tuesday called a halt to the extraordinary hearing on the constitutionality on the death penalty in Texas heard over the past two days in a Harris County trial court. The Harris County District Attorney's Office, which sought the stay in a motion for reconsideration filed late Monday with the Texas Court of Criminal Appeals, announced in a press release that the court had notified the office that it "on its own motion, … Read More […]

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