Death Penalty Challenge

By William Fisher

Next Monday, December 6, a district court in Texas will be asked – for the first time in that state’s history – to decide whether the death penalty is unconstitutional based on the “disproportionately high risk of wrongful convictions” in Texas.

John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. Green’s attorneys have filed a pretrial motion in Harris County District Court. Judge Kevin Fine will hear arguments that the death penalty is unconstitutional because it creates an unacceptable risk of executing innocent people.

Green's attorneys contend that a number of factors in Texas's legal system increase the risk of innocent people being executed.

According to the defense, these include a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions, and a history of racial discrimination in jury selection.

Paul Cates, Director of Communications for the Innocence Project, told IPS, “The Innocence Project will be participating in the hearing specifically to put on evidence about the cases of Claude Jones and Cameron Todd Willingham. Both Jones and Willingham were executed in Texas.”

He said, “In the case of Claude Jones, DNA evidence has proven that critical physical evidence (a hair sample) used to place him at the scene of the crime did not belong to Jones. Cameron Todd Willingham was executed even though a prominent arson scientist notified the Governor and the appeals court prior to his execution that the critical testimony of the arson investigator was based on outdated arson science.”

Both Ernest Ray Willis and Cameron Todd Willingham were convicted of murder by arson and sentenced to death on the basis of junk fire science. Mr. Willingham is dead and Mr. Willis is alive -- and free -- because a pro bono law firm took his case.
The Innocence Project has been responsible for freeing numerous prisoners from death row, largely through its use of DNA evidence.

Maurie Levin, a law professor at the University of Texas and an expert on capital punishment, said she would not be surprised if Judge Kevin Fine ruled the death penalty to be unconstitutional in Texas.

"I would think that Judge Fine would have substantial basis in the evidence that I'm aware of that would lead to a conclusion that the Texas death penalty is unconstitutional as applied," she said.

Retired Supreme Court Justice John Paul Stevens, writing in the New York Review of Books this week, said he now thinks the death penalty is unconstutitonal.

Since 1976, twelve people have been exonerated from death row in Texas out of 139 nationwide, and four study commissions set up by the Texas government have formally recognized the serious risks of wrongful convictions there.

Out of the 464 people executed in Texas, about 70 percent have been minorities, according to the Texas Department of Criminal Justice.

Andrea Keilen, executive director of Texas Defender Service, said it is clear to her that the death penalty is handed down unfairly and erratically in Texas.

"It is my opinion and the opinion of many people close to this issue that the Texas system is wholly incapable of carrying out the death penalty in a fair and reliable way," she said, adding:

"Texas is remarkably out of step with the rest of the country and certainly out of step with what the average Texan would expect when dealing with capital punishment. We're seeing in case after case that the system is just inherently prone to the risk of wrongful convictions and has a complete inability to correct its mistakes."

Keilen said that while the state has a history of strong popular support for capital punishment, she thinks Texans would feel differently about the practice if they knew all the facts.

"I think there is support for the idea of the death penalty among the average Texan, but that if the average Texan were to get a closeup view of how the system actually operates, that support would significantly wane," she said.

"It's an abstract concept to most people, but if they saw how abysmal the quality of representation can be, how the system is biased racially, how prosecutors can not disclose evidence, or how DNA testing can be wrong, my opinion is that they as reasonable people would find it unacceptable."

The defense motion focuses on the factors they say increase the risk of wrongful convictions and executions in Texas, including: lack of safeguards to protect against mistaken eyewitness identification, which has been a factor in 75% of DNA exonerations nationwide; failures to guard against false confessions, which has been a factor in 25% of DNA exonerations nationwide; use of notoriously unreliable informant testimony, which has been a factor in nearly 50% of wrongful murder convictions nationwide; faulty forensic evidence; inadequate pretrial discovery procedures and state misconduct, which has been documents in 41 capital convictions in Texas; and racial discrimination in jury selection, which leads to less accurate fact-finding.

At next week’s hearing, expert witnesses will testify about “the numerous flaws that leave Texas' system riddled with errors, inherently unreliable, and unconstitutional as applied,” Green’s lawyers say.

They add that the clemency process fails in its role as the last safeguard against executing the innocent. Claude Jones was executed in 2000 based on false evidence. During the clemency review, then-Governor Bush was not informed that Mr. Jones had requested DNA testing that might have exonerated him. Ten years after Mr. Jones’ execution, a DNA test showed that the hair sample at the crime scene was not his.

Four study commissions set up by the three branches of Texas government have formally recognized the serious risks of wrongful convictions, but virtually nothing has been done to fix the problem.

Nationwide, since 1976, 139 people have been exonerated from death row. Twelve of them were in Texas.

The 35 U.S. states that practice the death penalty have executed 1,233 prisoners since 1976. In 2010, executions will number 47, down from 52 a year earlier. Some 3,261 prisoners are currently on death row. States executing the most prisoners since 1976 were Texas (466) and Virginia (108). One hundred thirty-eight prisoners have been freed from death row, largely as a result of new DNA evidence.