The Lookout

Texas death penalty unconstitutional, lawyers to argue

Zachary Roth
The Lookout

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Barry Scheck

The constitutionality of the death penalty in Texas is set to go on trial Monday.

John Edward Green is accused of fatally shooting a Houston woman during a 2008 robbery, and prosecutors are pressing for the death penalty. But Green's lawyers have said they'll argue that the way Texas administers the death penalty leaves too high a chance of executing someone who's innocent, and that it should therefore be declared unconstitutional.

Green's defense team is working with the Innocence Project, a New York-based legal clinic that aims to exonerate Death Row inmates. They contend that the state's death-penalty system lacks safeguards to protect against mistaken eyewitness identification, flawed forensic evidence, bad lawyers and false confessions. They also charge that the death penalty is racially biased against blacks.

At the heart of the defense lawyers' argument are two high-profile Texas cases in which evidence has recently emerged that the state had put innocent men to death. Cameron Todd Willingham was executed in 2004 after being convicted of killing his daughters in a 1991 house fire. But numerous arson experts have identified serious flaws in the original investigation, and concluded that the blaze likely originated accidentally. And Claude Jones was executed in 2000 for killing a liquor store owner, but DNA testing recently showed that a strand of hair that prosecutors said proved his guilt in fact came from the victim. The Innocence Project has played a key role in both cases.

Had defense lawyers in Jones's case had access to the DNA evidence, Innocence Project founder Barry Scheck told the Texas Tribune, "his conviction would have been vacated, I'm sure."

Prosecutors have argued in court documents that a ruling on the death penalty's constitutionality shouldn't be made by a trial judge, but rather by higher courts like the state or U.S. Supreme Courts. And they say that Green hasn't even been convicted at this point, so asking the court to stop the death penalty isn't inappropriate.

Texas has led the nation in the number of executions since the restoration of the death penalty in 1976. But legal observers say that Green's attorneys may not have such an uphill climb, even in Texas's  execution-happy court system. State District Judge Kevin Fine granted a similar motion they filed earlier this year, saying that based on the evidence, "it's safe to assume we execute innocent people."

However, Texas Governor Rick Perry and Attorney General Greg Abbott had both slammed the ruling, prompting Fine to rescind it and request that Green's legal team present more information to support their claims.

James Liebman, a professor at Columbia Law School, thinks Texas should undertake a thorough investigation of its death-penalty system. "At a certain point," he told the Tribune, "evidence of the system's inability to function appropriately leads to the conclusion there ought to be a real inquiry."

(Photo of Barry Scheck: AP/Ross Weitzner)

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