Is Death Unconstitutional?

Is Texas' death penalty system so capricious and riddled with errors that it creates an unconstitutional risk that an innocent will be (or has been) executed?

That is, essentially, the question that Harris Co. District Judge Kevin Fine will be asked in a hearing that begins Dec. 6 in the case of accused murderer John Edward Green, who is facing the death penalty for a shooting in Houston that he says he did not commit. "The risks … are not mere ad hoc problems that may or may not recur in Texas capital cases," Green's attorneys wrote in a motion asking Fine to declare Texas' death penalty statute unconstitutional. "They are factors that, in total or in combination, affect every person facing capital charges in Texas who claims to be innocent."

According to Green's lawyers, the issues that make the Texas system unreliable are directly implicated in their client's case. They are not arguing that "the death penalty is always unconstitutional, only that the procedure in Texas is too unreliable to pass Constitutional muster in cases like Mr. Green's," write lawyers John Kiernan, Robert Loper and Richard Burr. Indeed, at length, the lawyers discuss problems with the system that increase the risk of wrongful conviction and execution. Among the many factors laid out in the motion are issues with eyewitness identification procedures, with forensic science, with the reliability of "snitch" testimony – three factors that play directly into Green's case.

Green is accused of killing Thien Huong Nguyen (also known as Tina Vo) in 2008. Green has said he did not commit the crime, but the state has three pieces of evidence to dispute that: a palm print they say is Green's was collected from the scene; a suspect in an unrelated burglary says it was his gun that was used to kill Nguyen – but that it was Green who pulled the trigger; and an identification made by Nguyen's sister, who was present at her sister's murder and was also shot during the attack. The sister gave police a description of the assailant and later picked Green out of a lineup even though Green does not look like the man she initially described as responsible for her sister's death, Keirnan told the Houston Chronicle.

Those issues are not at all minor. Since 1976, 139 death row inmates have been exonerated, including 12 in Texas. Texas is also home to more DNA exonerations that any other state, with 42. More than 75% of those exonerations involved faulty eyewitness identification. Despite that fact – and the troubling revelations from a 2008 Justice Project report reflecting that only a small percentage of police departments surveyed even had on the books a policy describing lineup procedures (and even fewer with procedures that would ward against faulty IDs) – Texas lawmakers have failed to pass any meaningful reforms to remedy police lineup procedure problems.

Moreover, Texas' criminal justice system doesn't exactly have a great track record of ensuring the reliability of snitch testimony – indeed, the only "evidence" linking the state's most recent death row exoneree, Anthony Graves, to a brutal multiple slaying in 1992 was the testimony of Robert Carter who implicated Graves in the crime. (Carter later recanted, but that information was never provided to Graves' defenders. Graves' conviction was later overturned based on that prosecutorial misconduct. Problems with prosecutors failing to turn over exculpatory materials to the defendants is yet another risk factor Green's lawyers highlight in their brief for Judge Fine.)

As for the forensic evidence – such as the alleged palm print belonging to Green – Houston in particular, with its mid-decade Police Department crime lab meltdown, has had a spectacularly hideous track record of ensuring the reliability of forensic evidence.

Taken together, these risks – combined with at least a dozen other issues (including the state's weak capital case appeal system) – play together to create an unconstitutional risk of wrongful execution. In fact, the lawyers note that there is ample evidence to suggest that the state has already executed an innocent – Cameron Todd Willingham, who was executed for the alleged 1991 arson-murder of his three young children in their home in Corsicana. To date, nine fire science experts have weighed in to say that the State Fire Marshal's Office was simply wrong to conclude that the Willingham fire was arson. Indeed, the first to challenge the state investigator's forensic conclusions was Austin-based Gerald Hurst, whose report challenging the arson finding was given to Gov. Rick Perry prior to Willingham's 2004 execution. Instead of putting that on hold in order to vet the science, Perry did nothing and Willingham was executed while questions about his guilt – indeed, about whether a crime was even committed – still lingered. (Willingham's remaining family are seeking to have his name posthumously cleared – a process that is hung up at the Third Court of Appeals, which has prevented Travis Co. District Judge Charlie Baird from making a final ruling on Willingham's case.)

In early March, Judge Fine initially agreed with Green's attorneys, and ruled on an earlier motion that the Texas death system is in fact unconstitutional. He rescinded that order on March 9, however, after Perry and Attorney General Greg Abbott got their hackles up and Abbott accused Fine of being an "activist judge" – Fine instead set the hearing, which begins Monday.

In closing, Green's lawyers argue in their motion that judging by nationwide statistics on death row exonerations, Texas should have already exonerated 24. To date there have been only 12, suggesting strongly that the state may have executed up to a dozen innocent individuals. "The risk factors outlined in this pleading, and to be demonstrated at the hearing, show, if anything, that the risk of sentencing to death an innocent person in Texas is higher than in other states," the lawyers wrote. "These figures thus troublingly demonstrate an unacceptable risk that Texas' system fails to identify innocents before it is too late."