By Juan A. Lozano
Associated Press
HOUSTON — The highest criminal court in Texas on Wednesday ruled that a Houston judge does not have the authority to order or preside over a court hearing questioning the constitutionality of the state’s death penalty.
The Texas Court of Criminal Appeals said state District Judge Kevin Fine was “acting beyond the scope of his lawful authority” when he decided to hold the two-week hearing, which began last month but was temporarily stopped after two days at the request of prosecutors.
Last spring Fine declared the Texas death penalty statute unconstitutional after granting a pre-trial motion in a capital murder case he is presiding over. Under heavy criticism, Fine clarified his ruling, saying the procedures the state follows to get a death sentence are unconstitutional. He then rescinded his ruling and ordered the hearing, saying he needed to hear evidence on the issue.
Fine is a judge in Harris County, which has sent more inmates to the lethal-injection gurney than any other county in the nation.
Lawyers for the Houston man who had requested the hearing had argued that flaws in how death penalty prosecutions are conducted in Texas have resulted in a risk that innocent people will be executed. They said their client, John Edward Green Jr., is innocent and that the case against him uses some of the same faulty evidentiary procedures, including problematic eyewitness identification and evidence offered by informants, that have resulted in others being wrongly convicted. Green, who is awaiting trial, faces a possible death sentence if convicted of fatally shooting a Houston woman during a June 2008 robbery.
In its 16-page ruling, the appeals court said the issues raised by Green’s attorneys are important moral and public policy questions more suitable for debate by legislators and not the courts. The appeals court also said it was premature for Green to be challenging the state’s death penalty law when he has yet to be tried or convicted.
“Neither trial judges nor judges on this court sit as a moral authority over the appropriateness of the death penalty,” the appeals court said. “We can determine only whether it has been constitutionally imposed by a jury after a specific conviction and sentence.”
The appeals court is dominated by Republicans and led by a chief judge who was disciplined for closing the court promptly at 5 p.m. while a death row inmate tried unsuccessfully to file an appeal hours before he was executed.
During a brief court hearing Wednesday, Fine moved Green’s case forward, setting a May 26 trial date.
Casey Keirnan, one of Green’s attorneys, said he disagreed with the ruling but wouldn’t appeal it. Green’s defense team planned to focus on keeping out of the trial what it believes is faulty evidentiary procedures that could wrongly convict its client and send him to death row.
“John Green has truly been strapped to a railroad track and there is a train coming at him: the state of Texas and its beloved death penalty,” Keirnan said. “We didn’t anticipate (the hearing) would end the death penalty. It’s a long, drawn-out fight. I will never, ever let John Green be executed. It has to stop and I will try to make it stop with John Green.”
In a statement, Harris County District Attorney Pat Lykos said she was pleased by the ruling.
“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,” Lykos said.
Prosecutors unsuccessfully tried to get Fine removed from the case, saying he is biased against the death penalty. They had said the claims being made by Greens’ attorneys were well-settled case law and that Fine didn’t have the authority to prevent the state from seeking the death penalty in the case.
Fine has said he believes capital punishment is constitutional and the hearing would have only focused on the specific legal issues raised by Green’s attorneys.