A district judge will decide if the Texas death penalty statute is constitutional for the first time in the state’s history in a hearing scheduled for Monday.

Harris County Judge Kevin Fine will oversee the case of defendant John Green, who faces capital murder charges following a 2008 shooting of a woman during a robbery. Harris County prosecutors asked for a death sentence, which led to the hearing.

Texas v. Green will examine risk factors that can occur during a capital murder case which could lead to wrongful executions — including faulty eyewitness testimony and a lower quality of lawyering — and the state’s method of fixing the systemic problems.

Andrea Keilen, executive director of Texas Defender Service, said Texas lacks the safeguarding procedures in execution cases used in many other states.

“The Texas system is so deficient — from top to bottom — in terms of its ability to protect innocent people from conviction and execution,” Keilen said. “And once the system makes a mistake, it is totally inadequate and unable to fix the mistake. Those exonerations happen out of a combination of luck and the involvement of people outside of the death penalty system.”

According to Death Penalty Information Center statistics, 12 of the 139 death row prisoners exonerated in the last 35 years were in Texas.

Fine declared the death penalty unconstitutional in March during earlier litigation of the trial. He retracted his statement after public criticism but acknowledged innocent people have been executed in Texas. Following the judge’s statement, the Harris County district attorney’s office filed a motion for Fine to remove himself from the case. A state appeals court denied the motion because Fine had not yet made a decision.

Prosecutors responded by filing a writ to stop the hearing two weeks ago, but all nine members of the state Criminal Court of Appeals, the state’s highest criminal court, denied the motion. The prosecutors are trying to avoid having a hearing in which the truth about the death penalty is put into evidence, Keilen said.

“That says something in and of itself,” she said. “The prosecutors don’t want the public to realize how unreliable the system is because support for the death penalty would decrease.”

The Harris County district attorney’s office declined to comment on the upcoming hearing.
Green’s defense attorney Robert Loper said he is glad they have a chance for a hearing.

“If they were to uphold it, I think that would be the end of the death penalty in Texas,” he said.