State's Death Penalty Statute at Issue in Upcoming Hearing
By Mary Alice Robbins | Texas Lawyer

A Houston judge who declared the state's death penalty statute unconstitutional has set an April 27 hearing to consider the issue.

The statute is Texas Code of Criminal Procedure Article 37.071, which sets out the requirements when the state seeks the death penalty against a defendant in a capital case.

John Niland, trial project director for the Texas Defender Service (TDS) in Austin, predicts that 177th District Judge Kevin Fine's holding in the capital murder case of John E. Green will have a "ripple effect," prompting more criminal-defense attorneys to file motions seeking rulings that Texas' death penalty scheme is unconstitutional.

"This will not be the last case in which similar arguments are made," says Niland, who is not involved in State v. Green.

Alan Levy, head of the criminal division in the Tarrant County District Attorney's Office who also is not involved in Green , says he believes the biggest impact of the Green case has been to attract public attention to the death penalty issue.

"I'm sure prosecutors will prevail in this case," says Levy . "The strategy among the defense bar and anti-death penalty people is to wear the state down."

Levy says death penalty opponents want to make it an unpalatable option for prosecutors to seek death in a capital case.

The Harris County District Attorney's Office is seeking the death penalty for Green. According to the March 1 amended indictment in Green , he is charged with capital murder for the June 8, 2008, shooting death of Thien Huong Nguyen, also known as Tina Vo, during a robbery.

Houston solo Casey Keirnan, one of Green's attorneys, says Green plans to plead not guilty. Green's trial, originally set for March 31, will be reset after Fine issues a decision on the constitutionality of the statute.

Green argued in a motion filed in May 2009 that because of the number of exonerations due to DNA and non-DNA evidence and the unfairness of the "Death Penalty in Texas," the court "can no longer have confidence in the verdicts in the culpability stage of this trial." Green also asserted in his motion that it's "settled law that the 5th Amendment's broad guarantee of 'due process' must be interpreted in light of evolving standards of fairness and ordered liberty."

On March 4, Fine stirred up a storm of protest by state leaders, including Gov. Rick Perry and Texas Attorney General Greg Abbott, when he granted Green's motion. The motion sought to have the state's death penalty statute declared unconstitutional.

Perry issued a March 4 statement, posted on his Web site, which stated that Fine's "ruling is an example of an activist judge legislating from the bench in blatant disregard of opinions issued based on both the Texas and U.S. Constitutions."

In a March 5 statement posted on his Web site, Abbott called Fine's order "unabashed judicial activism."

At a March 9 hearing, Fine rescinded his order, asked prosecutors and defense attorneys involved in Green to submit briefs by April 12, and scheduled the hearing, according to the following four lawyers who were there.

Keirnan says Fine indicated at the hearing that he wants briefing on whether innocent people have been executed in Texas and how that applies to a person's constitutional right to due process.

Kari Allen, one of the Harris County assistant district attorneys prosecuting Green, offers a slightly different interpretation of what Fine said he wanted. Allen says Fine asked for limited briefing regarding the possibility that an innocent person could be executed and whether Article 37.071 is unconstitutional.

Alan Curry, appellate division chief in the Harris County DA's office, says Fine wants the following question answered: "Is it OK for innocent people to be executed so we can maintain the death penalty in Texas?"

Robert K. Loper, another Houston solo representing Green, says Fine agreed to rescind his decision in order to hear evidence presented by the defense and prosecution regarding the constitutionality of the death penalty statute. But Loper says Fine "certainly did not change his mind" regarding Article 37.071.

Keirnan says the April 27 hearing will be a first for Texas and the rest of the country.

"Nobody I know of in the judiciary has looked into whether we have executed an innocent man," he says.

Curry says defense attorneys frequently file motions like the one Fine granted in Green.

"It happens in every death penalty case, at least in Harris County," Curry says, noting that the courts routinely deny such motions.
State of the Law

Curry, who has the responsibility for reviewing Fine's order and drafting the state's response, says the Court of Criminal Appeals has addressed claims that Texas' death penalty scheme is unconstitutional. Citing 2004's Scheanette v. State ,Curry says the CCA consistently has rejected such claims if the capital murder defendant is unable to show his rights have been violated.

CCA Judge Lawrence Meyers, author of the opinion in Scheanette, wrote in that case: "While the execution of an innocent person might violate federal due process and be considered cruel and unusual punishment, appellant does not claim that he is innocent. He therefore fails to demonstrate that his due process rights or his right to be free from cruel and unusual punishment have been violated by application of our death-penalty statute."

Seven CCA judges joined Meyers in the opinion in Scheanette. CCA Judge Paul Womack concurred.

Curry also cites the U.S. Supreme Court's 1993 holding in Herrera v. Collins that "due process does not require every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person."

If after hearing evidence in Green Fine declares Article 37.071 unconstitutional, Keirnan says he expects the CCA to reverse the decision. But Keirnan says he believes Green's case eventually could go to the nation's highest court.

"I think this one might get there if he [Green] gets the death penalty," Keirnan says.

Niland says he expects the next challenges to the death penalty in Texas to be broader than whether innocent people are being executed under Article 37.071. One issue that could be addressed, he says, is the death-qualification of jurors in capital cases.

Questioning during voir dire focuses on whether a prospective juror would give a defendant a death sentence, Niland says. "The whole focus is, 'Can you kill this guy?' " he says.

Niland says death-qualified jurors tend to be more conservative and less receptive to the defense claims during the guilt/innocence phase of a trial, increasing chances for a wrongful conviction. To address that problem, TDS has written a model motion to impanel a jury for the guilt/innocence stage of a trial and a separate jury for the punishment phase.

Under Article 37.071, jurors must be death-qualified to determine a defendant's sentence, Niland says. The statute does not require jurors to be death-qualified to determine guilt or innocence.

Niland says he thinks a judge could order a separate jury to hear each phase of a trial.

Referring to the model motion, Niland says, "We'll make it available to anyone who wants to use it."