Having halted a December hearing into whether the death penalty is constitutional as applied in the case of John Edward Green Jr. – awaiting trial for the robbery and murder of Thien Huong Nguyen (also known as Tina Vo) in Houston – the Texas Court of Criminal Appeals has now ruled that Green cannot bring a challenge to the state's death scheme prior to his case being tried. Lawyers for Green, who has pled not guilty, sought to put evidence forward that the number of wrongful convictions has increased and that factors implicated in those convictions, such as faulty eyewitness-identification procedures, are also at issue in Green's case. According to the CCA, in an opinion written by Judge Cathy Cochran, while those issues "certainly deserve careful consideration," the pretrial hearing is not the appropriate forum.

Harris County District Judge Kevin Fine, who is presiding over Green's case, had ordered the hearing, having initially ruled Texas' death penalty unconstitutional based on a motion entered by Green's attorneys. When prosecutors balked at the ruling, Fine conceded that he should instead hold a hearing on the issue. The proceedings lasted two days in early December before the CCA halted the hearing, during which Fine heard testimony about the growing number of exonerations nationwide – including, to date, those of 12 death row inmates in Texas.

The CCA ruled that Green could not challenge the death scheme based on a "hypothetical" possibility that he could be wrongfully convicted. "He has not been convicted of anything. He is asking Texas trial and appellate courts to entertain a purely hypothetical claim and make an advisory ruling in a case that has not been litigated to any final resolution," Cochran wrote. Instead, "Mr. Green appears to seek a pretrial ruling ... that the State is not entitled to proceed ... because it is within the realm of possibility that Mr. Green could be wrongfully convicted and wrongfully sentenced to death," she wrote.

Cochran concluded that Capitol chambers are a more suitable place for a discussion about the merits of Texas' death system. "Certainly the Texas Legislature is an appropriate forum in which to debate these public policy issues," Cochran wrote for a six-judge majority ruling. "That is also an appropriate forum to decide whether to abolish the death penalty in Texas or to enact statutory or constitutional improvements to the current legislative system." Notably, two dissenters, Judge Tom Price and Judge Paul Womack, did not distill their objections in a separate opinion.  

A number of bills proposing a look at capital punishment and its possible failings (including a proposal to establish an Innocence Commission) have been perennially filed – and perennially stalled, unfortunately, over political considerations. For the court it seems that – at least for now – the status quo is just fine. 

Green's legal team – lawyers Dick Burr, Casey Kier­nan, and Robert Loper – expressed in a press release their disappointment that the court punted all responsibility for vetting the system to the Legislature. "Sadly ... the Court failed to assume the responsibility that Texas courts also have to address the underlying issue: whether the Texas death penalty trial process creates an unacceptable risk that innocent people have, and will continue to be, wrongfully convicted and executed," they wrote. "The Texas courts, every bit as much as the Texas Legislature, have the obligation to address this overriding concern."