That is what the District Attorney for the state of Texas used as a tactic to STOP a hearing into the constitutionality of the death penalty.  Here’s the backstory.

In 2008, in Houston in Harris County in Texas, John Edward Green, Jr. supposedly gunned down a woman in her driveway while her children were nearby.  This crime took place in the midst of a robbery, thus making it a capital offense.

In the spring of 2010, Green’s attorneys filed a motion that said that should their client be found guilty, the death penalty cannot be on the table as a possible punishment because it is unconstitutional.  They can do this, according to TIME magazine, because of “an uncommon Texas procedure that allows judges to consider how a requested punishment (like the death penalty) is applied across the state, and consider that evidence as part of a trial.”  While this usually takes place in the appeals process after a person has been committed of a crime and sentenced, this time it is taking place during the original trial.

Let me say that again: Green has not yet been tried and convicted.  This is a just-in-case move by the defense.

Green’s defense team is being led by Texas Defender Service, “a non-profit organization established in 1995 by experienced death penalty attorneys.  Our mission is to establish a fair and just criminal justice system in Texas.  TDS aims to improve the quality of representation afforded to those facing a death sentence and to expose and eradicate the systemic flaws plaguing the Texas death penalty.”

Originally, the judge in this case, Judge Kevin Fine, a Democrat who is elected to his position, ruled in favor of the motion, saying that the death penalty is unconstitutional.

He then rescinded the ruling.

In place of the ruling, he decided to do a hearing on the constitutionality of the death penalty to determine if the defense’s motion is valid.

The basis for this motion is two highly public death penalty cases in Texas where the convicted and executed men may both have been innocent, or, at the least, their convictions are questionable because of new information about the evidence that led to their guilty verdict.  Cameron Todd Willingham, whose case I have written about before (here and here), was accused of setting fire to his home and burning his children to death.  It has become painfully obvious that the arson investigator in the trial was ill-equipped in his field and made erroneous assumptions that passed as fact.  Claude “Butch” Jones was found guilty based on hair evidence. The hair in question, though, turns out to have belonged to the victim, not to Jones.

It appears that Texas has murdered at least (AT LEAST) one man who was innocent of his crime and possibly two.  And those are the ones we know about.

According to The Wall Street Journal, Texas leads the nation in death penalty executions, having killed 464 people in the last 30 years.  Alarmingly, though, “a dozen death-row inmates have been exonerated of the crimes of which they were convicted.”

The Texas Defender Service has written a post at, listing 6 reasons that the death penalty must go:

  • First, Texas has no standards to ensure that eyewitness testimony is obtained in ways that protect against the risk of mistaken identification.
  • Second, Texas allows the introduction of confessions that have been obtained without safeguards to protect against false confessions.
  • Third, use of informant testimony is largely unregulated in Texas.
  • Fourth, pervasive flaws have been identified in the analysis of presentation of forensic evidence that result in unreliable results.
  • Fifth, pretrial discovery procedures are inadequate to safeguard against the prosecution’s suppression of evidence favorable to the accused.
  • Sixth, Texas prosecutors in Harris County and elsewhere have a shameful history of excluding African Americans from juries.

Harris County, mentioned in item 6 of the list above, is the county in Texas where Houston is located.  A quarter of the population is African American and it is also the #1 county in AMERICA in the number of people it has executed.

At this time, our Governor, Rick Perry (who was governor when Willingham was executed), has overseen 224 executions, the most BY FAR of any governor in the history of state.

Also, according to the AP, “Brandon Garrett, a University of Virginia law professor, testified Tuesday that the rate of exonerations across the country is now averaging more than one a month.  Seven of the 261 national exonerations came from Harris County, Garrett said.”

This is ALL leading me to discussion of the tactic of silence in the hearing to determine the constitutionality of the death penalty in Texas.

According to the AP, before the hearing began, the prosecutor/state Defense Attorney, AlanCurry, “reiterated objections that prosecutors have had to the hearing, saying the issues being debated are settled case law and that some of the issues Green’s attorneys plan to discuss at the hearing, such as crime clearance rates and alleged racial discrimination in how juries are chosen, have no relevance to Green’s case. Fine asked Curry to submit his objections to the relevancy of some of the issues to be discussed but said the hearing would go forward.”

Also, “Prosecutors unsuccessfully tried to get Fine removed from the case, saying he is biased against the death penalty.”  Because, of course, you would like your judge to be more “Texan” and be biased in favor of the death penalty because that is more natural or normal around here.  This is one of those instances where bias only matters or only exists if you are at all considered progressive (remember that Sotamayor business?).

On Monday, the hearing began.  Again according to the AP, the defense started first:

Green’s attorneys called four witnesses on Monday.

The first witness was Richard Dieter , the executive director of the Death Penalty Information Center , a Washington-based group that has been critical of capital punishment.

Dieter discussed the 138 exonerations of death row inmates that have occurred in the U.S. since 1978, including 12 in Texas. He said that for every nine executions that have occurred in the U.S., there has been one exoneration.

Dieter said his group’s review of these exonerations has shown that faulty eyewitness testimony, unreliable informant testimony and false confessions are some of the factors that have contributed to innocent people being wrongfully convicted.

“The system, the number (of exonerations), the fortuity of finding mistakes would lead me to believe there is certainly a risk of executing the innocent and that risk still exists today,” he said.

Then it was the prosecution’s turn.  It was time for the State District Attorney of Texas to stand up and defend the constitutionality of a law that the state uses to put people to death.  And instead of actually even attempting an argument, prosecutor Alan Curry said:

“We still respectfully refuse to participate in the proceeding, your honor,” Curry said.


Later, after Judge Fine told Curry that he was expected to participate in the hearing, Curry responded:

“I have been instructed by my boss, the district attorney, to stand mute for the remainder of the proceedings.”


Then, on Tuesday, the Harris County District Attorney’s office submitted an emergency appeal to the Texas Court of Criminal Appeals to stop the hearing, which was granted:

The hearing on the constitutionality of the procedures surrounding the death penalty in Texas will be stopped to allow both sides 15 days to respond and file briefs in the state’s highest criminal court. […]

Prosecutors and defense lawyers will now argue whether the hearing should take place. The district attorney’s office said in its brief that Fine was exceeding his authority by allowing evidence regarding flaws in past death penalty cases to decide issues in Green’s case.

Of course, “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.”

The death penalty has become one of those issues for me where I literally can’t understand why people continue to back it and fight for it and demand that we keep using it.  No matter how hard I try, I can’t see it.  How can you know about all the exonerations, the cases where innocent people have more than likely been executed, and the skewed statistics about who is put up for death row and who isn’t and still think that it is viable?  Why do you want our government, your state, your country to back such an institution?  What the hell does America stand for?

I find the state’s use of silence to be extremely upsetting because EVERYTHING is set up to support their side.  The people who are silenced are the ones on death row.  The ones shouting about their innocence, only to be denied repeatedly, some denied even in the last moments as the evidence piles up that the state is about to make a grave mistake.  In the case of Willingham, Gov Perry has done whatever he legally can to make sure that neither he nor anyone else is ever held legally responsible for that decision (or, really, inaction) and particularly that the state is not found at fault.

So now, in a Texas court, in a hearing that is allowed via the law, when the state is asked to finally defend its use of the death penalty, it chooses silence.  It chooses to be mute.

Well, I have chosen to not be silent about this.  If you have any advice for me on how I can actively help end the death penalty in this state, let me know.  I want to know.

The death penalty needs to end NOW.

To keep up with news on the hearing, check out The Innocence Project’s blog.


3 thoughts on “Silence

  1. Judge Fine: The Ringmaster & the death penalty
    Dudley Sharp
    12/6/2010 8:49:00 A.M.

    Based upon the possibility of executing an innocent, Texas Judge Fine cannot, legitimately, find the Texas death penalty unconstitutional.

    Should Judge Fine, wrongly, find the death penalty unconstitutional, he will be reversed upon appeal, just as Federal District Court Judge Jed Rakoff was reversed in the Quinones case (2002), when Judge Rakoff made the same ruling based upon the same finding.

    It is settled law.

    I suspect Judg Fine will ringmaster over a circus of anti death penalty presentations/testimonies, the prosecutor will present little to no rebuttal but will simply object over and over, again, understanding that the circus will play out.

    Should Judge Fine rule the death penalty unconstitutional, he will have his moment in the anti death penalty sun – the media, as other anti death penalty folks, will praise Judge Fine’s brilliance and, then, he will be reversed on appeal.

    My hope is that the prosecution would make a point by point rebuttal to all the anti death penalty claims. However, I doubt they will. I suspect the prosecution knows that would be a waste of their time and money.

    I suspect one of the following will occur:

    If Judge Fine pays attention to the law, he will rule that death penalty constitutional and the current case , Green, will proceed. If Fine rules the death penalty unconstitutional, he will be reversed, then the Green case will proceed.

    It should be noted that innocents are more protected with the death penalty. See below.

    (NOTE: The DNA hair evidence in the Claude Jones case does not, remotely, even hint that Jones may be an innocent executed. The eyewitness testimony identifies Jones as the murderer, who did not, remotely, look like Jones’ co defendant.)

    REVIEW for fact checking


    1) “The Death Penalty: More Protection for Innocents”

    The false innocence claims by anti death penalty activists are legendary. Some examples:

    2) “The Innocent Executed: Deception & Death Penalty Opponents”–death-penalty-opponents–draft.aspx

    3) EXONERATION has been given a new, highly distorted definition by anti death penalty activists. That new definition has nothing to do with actual innocence or the process of being cleared of wrongdoing, which is the real meaning of the word. The deception has been well and broadly exposed since 1999.

    Just ask the anti death penalty folks: “How many are actually innocent and can you prove that any of those are actually innocent?”.

    The 130 (now 139) death row “innocents” scam

    4) “Cameron Todd Willingham: Another Media Meltdown”, A Collection of Articles

    There is no evidence for innocence in this case.

    5) “A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection”, Lester Jackson Ph.D.,

    6) Sister Helen Prejean & the death penalty: A Critical Review”–the-death-penalty-a-critical-review.aspx

    7) “At the Death House Door” Can Rev. Carroll Pickett be trusted?”

  2. I appreciate your passion but I disagree with you. I’m not sure what makes our society more protected by killing people than by simply letting them stay in prison. Yes, there are innocent people in prison who die while there. That is another problem in and of itself. For me, even the infinitesimal risk that an innocent person will be killed by this state, my state, makes it worth it to abolish the practice.

    And yes, the one piece of forensic evidence in the Jones case was the hair. Eyewitnesses are unreliable. While their testimony matters, it doesn’t mean it should be the end all of a case. But it doesn’t matter what I say to you about this – you will still believe that killing him was the best decision.

    My belief that the death penalty must end is part of my larger philosophy that violence simply begets violence, and answering one violent act with another only continues the cycle. Yes, people who commit atrocious crimes should be punished but they shouldn’t be executed.

  3. Pingback: The Death Penalty Needs to End NOW « Speaker's Corner

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