Court of Criminal Appeals ends death penalty hearing

January 12, 2011

Law & Courts

The Texas Court of Criminal Appeals issued a ruling Wednesday putting a halt to an unprecedented hearing in a Harris County trial court on whether the state’s death penalty law is unconstitutional.

In its 27-page ruling, the appellate court found that state District Judge Kevin Fine was “acting beyond the scope of his lawful authority” by holding the hearing.

During the hearing, held over two days in early December, prosecutors under the orders of District Attorney Pat Lykos elected to “stand mute” while defense attorneys presented testimony from expert witnesses.

At the end of the second day, the appellate court ordered a stay based on an emergency writ from Lykos’ office filed the previous evening. The court ordered the parties to file briefs making their arguments within 15 days.

The capital murder case involves John E. Green, Jr., 25, accused of fatally shooting Huong Thien Nguyen, 34, and critically wounding her sister in a robbery in southwest Houston in June 2008.

In its ruling, written by Judge Cathy Cochran (joined by five other judges with two dissenters), the court found that Green’s defense attorneys raised important issues on whether the state’s death penalty scheme, as applied, created an unconstitutional risk that people can be — and have been — wrongly convicted and sentenced to death.

“These are indeed weighty public policy issues, greatly deserving of considerable debate by the appropriate people, in the appropriate forum, and at the appropriate time,” the court said in its ruling.

The judges pointedly specifically to the Texas Legislature, which just this week began session, and several legislators who signed a friend-of-the-court brief arguing that the hearing in Fine’s court should continue.

The appellate court found that Green and his attorneys could not, based on state and U.S. Supreme Court precedent, argue that he was entitled to argue whether the state’s death penalty law was applied to him unconstitutionally before his trial even began, much less before he was punished.

“Mr. Green asserts that he is innocent, but apparently assumes that, if he goes to trial, he would be both wrongfully convicted and sentenced to death,” the court wrote. “These assumptions are simply not warranted before a jury has considered the evidence in the present case and rendered a verdict.”

The Texas court also pointed to several Supreme Court cases which have found that the death penalty is, in fact, constitutional.

It ordered that Fine dismiss the defense’s motion — which he in early 2010 granted, then rescinded days later before clarifying his ruling and ordering the evidentiary hearing.

In a press release, Lykos, the district attorney, praised the ruling.

“We are gratified by the decision of the Court of Criminal Appeals of Texas. This means that the administration of justice, which was delayed by the extra-judicial proceeding in the 177th Judicial Court, can move forward,” she said.

The press release, not quoting Lykos, further said, “People of good will can disagree about the death penalty and debate the issue. A court of law is not the venue for speculative oratory. Courtrooms are the place where relevant and material evidence is introduced before judges and juries who have sworn an oath to be unbiased. Verdicts are based on the law and evidence.

“The Texas legislature passed our death penalty statute and attendant laws, which have been upheld by the Supreme Court of the United States. Discussions as to whether capital punishment should be retained or abolished can be conducted in many forums, including the Texas Legislature. The people through their elected representatives make the decision,” it stated.

Reached by phone, Richard Burr, one of Green’s attorneys, said he and fellow attorneys Bob Loper and John “Casey” Kiernan were disappointed by the ruling. He said they had put forward “a viable theory” that the death penalty was unconstitutional which they hoped the courts would be able to rule on.

“They have a responsiblity to not let something that’s broken go forward,” Burr said.

He said the defense attorneys would continue to raise objections to the kinds of evidence they say are problematic during Green’s trial, is now set for May 20. He said an appeal of the appellate court’s ruling would have to wait until after a jury convicted and sentenced Green.

UPDATE: 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: Mark W. Bennett, a Houston criminal defense attorney and author of the blog “Defending People,”  has written about the hearing here and here and posted a link to many of the legal documents from the case.

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.

CORRECTION: This post initially said the ruling was issued Tuesday, Jan. 11.

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

Copyright © 2011 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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