Green Defense Brief in Opposition to Mandamus

8/8/2019 Green Defense Brief in Opposition to Mandamus

http://slidepdf.com/reader/full/green-defense-brief-in-opposition-to-mandamus 1/21

No. ________________

In the

COURT OF CRIMINAL APPEALS OF TEXAS

______________________________________________

In re THE STATE OF TEXAS

EX REL. PATRICIA R. LYKOS

Relator,

v.

HON. KEVIN FINE, PRESIDING JUDGE,177 DISTRICT COURT OF TEXAS,TH

Respondent.

______________________________________________

REAL PARTY IN INTEREST JOHN EDWARD GREEN’S

BRIEF IN OPPOSITION TO MOTION FOR LEAVE TO FILE

PETITION FOR WRIT OF PROHIBITION AND

PETITION FOR WRIT OF MANDAMUS

Richard Burr John P. Keirnan Robert K. Loper

SBN 24001005 SBN 11184700 SBN 12562300

PO Box 525 917 Franklin St., Ste 550 111 W. 15 Streetth

Leggett, TX 77350 Houston, TX 77002 Houston, TX 77008

713-628-3391 713-236-9700 713-880-9000

713-893-2500 (fax) 713-236-1802 (fax) 713-869-9912 (fax)

Counsel for Real Party in Interest, John Edward Green



i

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. THE FILING OF THE DISTRICT ATTORNEY’S MOTION FOR LEAVE TO

FILE THE PETITION FOR WRITS OF PROHIBITION AND MANDAMUS ISPREMATURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. LEAVE TO FILE THE PETITION SHOULD BE DENIED BECAUSE IT FAILS

ON ITS FACE TO MEET THE EXTRAORDINARY REQUIREMENTS FOR

THE ISSUANCE OF A WRIT OF PROHIBITION OR MANDAMUS . . . . . . . . . . . . . . 5

A. The District Attorney Will Have an Appellate Remedy If the Trial Court

Grants the Amended Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. The District Attorney Does Not Have a Clear and Indisputable Right to an

Order Denying the Amended Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1. The constitutional theory underlying Mr. Green’s claim is firmly

rooted in Supreme Court precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. The District Attorney’s argument that Mr. Green’s claim has been

squarely rejected by the Supreme Court is erroneous . . . . . . . . . . . . . . . 10


squarely rejected by this Court is erroneous . . . . . . . . . . . . . . . . . . . . . . 15

IV. CONCLUSION AND REQUEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17



ii

TABLE OF AUTHORITIES

Cases

Baze v. Kentucky, 553 U.S. 35, 128 S.Ct. 1520, 1530-31 (2008) . . . . . . . . . . . . . . . . . . . . . . 9

Beck v. Alabama, 447 U.S. 625, 637 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9, 10

Booth v. Maryland , 482 U.S. 496, 502-03 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Buntion v. Harmon, 827 S.W.2d 945, 947 (Tex.Crim.App 1992) . . . . . . . . . . . . . . . . . . . . . 5

Curry v. Wilson, 853 S.W.2d 40, 43-44 (Tex.Crim.App. 1993) . . . . . . . . . . . . . . . . . . . . . . . 5

Furman v. Georgia, 408 U.S. 238 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 11

Gregg v. Georgia, 428 U.S. 153, 188 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 11

Herrera v. Collins, 506 U.S. 390 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 13

Kansas v. Marsh, 548 U.S. 163 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13, 14, 15

McCleskey v. Kemp, 481 U.S. 279, 313 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Paredes v. State, 129 S.W.3d 530, 540 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . . . . 15, 16

Patterson v. New York, 432 U.S. 197, 208 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Scheanette v. State, 144 S.W.3d 503, 505-06 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . 15, 16

State ex rel. Hill v. Fifth Court of Appeals, 34 S.W.3d 924, 928 (Tex.Crim.App. 2001) . . 4, 5

State v. Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . . . 6

State v. Moreno, 807 S.W.2d 327 (Tex.Crim.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

State v. Morgan, 160 S.W.3d 1 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

State v. Patrick , 86 S.W.3d 592, 594 (Tex.Crim.App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 5

State v. Stanley, 201 S.W.3d 754, 758 (Tex.Crim.App. 2006) . . . . . . . . . . . . . . . . . . . . . . 6. 7

Turner v. Murray, 476 U.S. 28, 37 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10



iii

United States v. Acosta-Martinez , 252 F.3d 13, 16-17 (1st Cir. 2001) . . . . . . . . . . . . . . 6, 7, 8

United States v. Bass, 266 F.3d 532, 535-36 (6th Cir. 2001),

rev'd on other grounds, 536 U.S. 862 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

United States v. Cheely, 36 F.3d 1439, 1441 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . 6, 8

United States v. Levasseur , 846 F.2d 786 (1 Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . .st . 7

United States v. Woolard , 981 F.2d 756, 757 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Woodson v. North Carolina, 428 U.S. 280, 305 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

State Statutes

Kan. Stat. Ann. § 21-4624(e) (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Article 37.071, § 2 of the Texas Code of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . 1

Article 44.01(a)(1) of the Texas Code of Criminal Procedure . . . . . . . . . . . . . . . . . . . . 5, 6, 8

Federal Statutes

18 U.S.C. § 3005 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 U.S.C. § 3593(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 U.S.C. § 3731 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8



The Am ended M otion is attached as Exhibit 3 to the District Attorney’s Petition for Writ of Pro hibition and 1

Petition for Writ of Mandam us.

These factors are (a) crime clearance rates and pressure on the police, compromising thoroughness; (b)2

heightened publicity and public pressure; (c) the death qualification of p rospective jurors, which leaves the jury

conviction-prone; (d) fear of the death penalty in defendants and their defense team, which leads to inadequate

attention to gu ilt-innocence matters; and (e) the tendency of capital juries to consider punishment prior to

determining guilt, which impairs guilt-innocence factfinding.

These factors are (a) eyewitness identifications obtained without safeguards against mistaken identification;3

(b) confessions ob tained without safeguards against false admissions; (c) perjured testimony by informants who

receive compensation or o ther benefits; (d) forensic evidence that gives the false appearance of scientific certainty;

(e) pretrial discovery procedures inadequate to safeguard against the suppression of Brady evidence and the

introduction of unreliable evidence; (f) continued racially discriminatory use of peremptory strikes, which reduces

racial diversity of juries and accuracy in deliberations; (g) the failure of state habeas proceedings to serve as a

safeguard against wrongful conviction; (h) the failure of the clemency pro cess to serve as a safeguard against

wrongful conviction; (i) juror compensation so low as to d eprive capital defendants of juries drawn from a fair cross-

section of the commun ity.

I. INTRODUCTION

On April 12, 2010, counsel for John Edward Green filed an Amended Motion to Declare

Article 37.071, § 2 of the Texas Code of Criminal Procedure Unconstitutional as Applied

(hereafter “Amended Motion”). The Amended Motion argues in part:1

Article 37.071, § 2 of the Texas Code of Criminal Procedure [hereafter, ‘the

Texas death penalty statute’] is unconstitutional as applied because its application

has created a substantial risk that innocent people have been, and will be,

convicted and executed. This risk has come about because of the operation of atleast fourteen factors which, cumulatively or in combination, ‘would seem

inevitably to enhance the risk of an unwarranted conviction,’ Beck v. Alabama,

447 U.S. 625, 637 (1980), in individual cases.

Amended Motion, at 1. The motion goes on to describe in detail five factors that contribute to

wrongful conviction that are unique to death penalty cases, id . at 19-27, and nine more such2

factors, not unique to capital cases, that exacerbate the risks of wrongful conviction associated

with the death-penalty-specific factors. Id . at 27-64. Finally, the Amended Motion argues that3

specific instances in which wrongfully convicted people in Texas have been executed provide

support for the proposition that the risk of wrongful conviction in capital cases is constitutionally

intolerable, and for this reason urges the Court to examine such cases. Amended Motion, at 73-



Mr. G reen will show that three of the risk factors are specifically associated with the prosecution’s case4

against him – (a) eyewitness identifications obtained without safeguards against mistaken identification, (b) perjured

testimony by informants who receive compensation or other benefits, and (c) forensic evidence (in his case,

fingerprint comparison) that gives the false appearance of scientific certainty.

Mr. G reen will also show that six add itional risk factors will be in operation in his case: (d) pretrial

discovery procedures inadequate to safeguard against the suppression of Brady evidence and the introduction of

unreliable evidence; (e) continued racially discriminatory use of peremptory strikes, which reduces racial diversity of

juries and accuracy in deliberations; (f) the death qualification of p rospective jurors, which leaves the jury

conviction-prone; (g) the tendency of capital juries to con sider punishment prior to determining guilt, which impairs

guilt-innocence factfinding; (h) the failure of state habeas proceedings to serve as a safeguard against wrongful

conviction; and (I) the failure of the clemency process to serve as a safeguard against wrongful conviction.

2

76.

Fair consideration of this motion requires an evidentiary hearing, and Mr. Green asked

for such a hearing. Amended Motion, at 77. The trial court has agreed to hold a hearing and has

scheduled it to begin December 6, 2010. At this hearing, Mr. Green intends to show how the

factors he has identified have contributed to wrongful convictions and executions, how the risks

of error associated with these factors can be minimized, what steps the States of Texas has

undertaken to minimize these risks, and how an unconstitutionally high risk of wrongful

conviction in his case arises because of the operation of specific factors in his case.4

The Harris County District Attorney’s has filed a motion for leave to file a Petition for

Writ of Prohibition and Petition for Writ of Mandamus (hereafter “Petition”) in which she seeks

to prevent Judge Fine from holding this hearing and entering any order or making any ruling on

the Mr. Green’s motion that would preclude the state from seeking the death penalty. The real

party in interest, John Edward Green, urges the court to deny leave to file the Petition in advance

of the holding of the hearing and a ruling on the Amended Motion by Judge Fine for the reasons

set forth below.



The statement of the case describes the Petition as seeking numerous forms of relief: an order requiring5

Judge Fine (1) to withdraw his order for an evidentiary hearing (now scheduled to commence on D ecember 6, 2010 )

on Mr . Green’s Amended M otion and (2) deny the motion; (3) prohibiting Judge Fine from preventing the prosecution of the case as a death penalty case; (4) requiring the recusal of Judge Fine based upon partiality and bias

against the death penalty and the S tate’s application of the death penalty statute in this case; and (5) a temporary stay

of the proceedings pending resolution of these issues. On the other hand, the prayer for relief requests only that this

Court “issue a writ of mandamus and/or w rit of prohibition directing the Respondent not to require a hearing in

which he will preside over the litigation of the actual innocence of the Texas capital murder defendants who have

been executed in other cases, either standing alone or as a prelude to the Respondent’s ruling on the D efendant’s

motion to declare the Texas death p enalty statute unconstitutional.” Petition at 44.

3

II. THE FILING OF THE DISTRICT ATTORNEY’S MOTION FOR LEAVE TO

FILE THE PETITION FOR WRITS OF PROHIBITION AND MANDAMUS IS

PREMATURE

Although the Petition is somewhat confusing with respect to the precise relief the District

Attorney seeks, clearly the gravamen of the District Attorney’s complaint is her expectation5

that, following the upcoming hearing, Judge Fine, the Respondent, is going to declare the Texas

death penalty statute to be unconstitutional. The Petition describes the scheduled evidentiary

hearing as envisioned by the District Attorney and speculates that (1) such a hearing will provide

Judge Fine with a basis for finding that one or more innocent people have been executed in

Texas and (2) on those grounds alone, he will declare that the Texas death penalty statute is

unconstitutional. The District Attorney’s expectation that the hearing and any subsequent ruling

will be focused solely or primarily on whether an innocent person has been executed in Texas

are based on a misreading or misunderstanding of the Amended Motion and speculation about

the trial court’s ultimate decision.

From the perspective of Mr. Green, who is the movant, the issue to be litigated in the

upcoming hearing is not whether the State of Texas has executed an innocent person. While the

question of whether an innocent person has been executed will be addressed by counsel for Mr.

Green in the hearing, the purpose for addressing it will be simply to show that the risk of

wrongful conviction in Texas is real and substantial, not just theoretical. That an innocent



4

person has been execute by Texas is not determinative of the constitutional challenge presented

by Mr. Green, however. His claim is, as clearly stated in the Amended Motion, whether capital

trial proceedings in the State of Texas give rise to an unconstitutionally unacceptable risk of

wrongful conviction. In support of this claim Mr. Green will offer evidence of: (a) the factors

that, in various combination in specific cases, give rise to this risk, (b) how these factors have led

to wrongful convictions in Texas capital cases, (c) how some of the cases in which these factors

have produced wrongful convictions have not been corrected and have led to wrongfully

convicted people being executed, (d) what remedial steps have been taken by the State of Texas

to minimize the risk presented by these factors, and most importantly, (e) how the operation of

these factors in his case put Mr. Green at great risk for wrongful conviction.

The trial court must hear this evidence before it can decide whether to grant or deny Mr.

Green’s Amended Motion. The evidence will shape the manner in which Judge Fine rules.

Neither the District Attorney, nor Mr. Green, nor Judge Fine, nor this Court can determine in

advance of the hearing how, and on what basis, Judge Fine will or should rule. For the same

reasons, the District Attorney cannot demonstrate a clear right to the relief she seeks and

intervention by this Court under these circumstances is not permitted. See, e.g., State ex rel. Hill

v. Fifth Court of Appeals, 34 S.W.3d 924, 928 (Tex.Crim.App. 2001) (to warrant mandamus

relief “the law must ‘clearly spell [ ] out the duty to be performed ... with such certainty that

nothing is left to the exercise of discretion or judgment” (cites omitted)).



5

III. LEAVE TO FILE THE PETITION SHOULD BE DENIED BECAUSE IT FAILS

ON ITS FACE TO MEET THE EXTRAORDINARY REQUIREMENTS FOR THE

ISSUANCE OF A WRIT OF PROHIBITION OR MANDAMUS

The requirements for prohibition or mandamus are similar: First, the petitioner must

have no other available legal remedy to complain about the action the court at issue is about to

take or is refusing to take. Second, the petitioner must have a clear and indisputable right to the

relief sought. State v. Patrick , 86 S.W.3d 592, 594 (Tex.Crim.App. 2002) (mandamus); State ex

rel. Hill v. Fifth Court of Appeals, 34 S.W.3d at 927 (mandamus); Curry v. Wilson, 853 S.W.2d

40, 43-44 (Tex.Crim.App. 1993) (prohibition); Buntion v. Harmon, 827 S.W.2d 945, 947

(Tex.Crim.App 1992) (prohibition). The District Attorney’s Petition fails to satisfy either

requirement.

A. The District Attorney Will Have an Appellate Remedy If the Trial Court

Grants the Amended Motion

Article 44.01(a)(1) of the Texas Code of Criminal Procedure, the article authorizing the

State to appeal certain matters in criminal cases, provides as follows:

The state is entitled to appeal an order of a court in a criminal case if the order:

(1) dismisses an indictment, information, or complaint or any portion of an

indictment, information, or complaint....

If Judge Fine grants the Amended Motion, the remedy will be to dismiss the death

penalty as a possible punishment for Mr. Green. As the District Attorney has acknowledged in

her Petition, the dismissal of the death penalty could provide the predicate for allowing the State

to take an interlocutory appeal under Art. 44.01(a)(1), because the dismissal of the death penalty

is tantamount to dismissing an indictment or any portion of an indictment:

This Court interprets the State’s authority to appeal from an order ‘dismiss[ing]

an indictment’ under Article 44.01 in lockstep with the federal government’sauthority to appeal under Title 18, United States Code, Section 3731. State v.



Accord State v. Stanley , 201 S.W.3d 754, 758 (Tex.Crim.App. 2006).6

In an earlier Moreno case, State v. Moreno, 807 S.W.2d 32 7 (Tex.Crim.App. 1991) , this Court explained7

that it must look to the federal courts’ decisions allowing appeals by the go vernment for guidance in applying Article

44.01:

[T]he Legislature made ab undantly clear in the Bill Analysis that it intended to extend to the Stateappellate powers akin to those that the United States Congress had extended to the federal

government in a criminal case. Consequently, we will look to the federal government's powers to

appeal from an order “dismissing an indictment” in a criminal case to understand the parameters of

the State's appellate powers under Article 44.01.

Id . at 330. That the federal courts allow the government to appeal the dismissal of the death penalty as a possible

punishment is thus compelling authority that this Court should allow the State to do so.

6

Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009). The federal government[6]

is allowed to appeal orders where a district court has stricken a death penaltynotice based on the legislative intent to liberally construe that statute. See United

States v. Bass, 266 F.3d 532, 535-36 (6th Cir. 2001), rev'd on other grounds, 536

U.S. 862 (2002); United States v. Acosta-Martinez , 252 F.3d 13, 16-17 (1st Cir.

2001); United States v. Cheely, 36 F.3d 1439, 1441 (9th Cir. 1994); United Statesv. Woolard , 981 F.2d 756, 757 (5th Cir. 1993).

Petition, at 17 n.3.7

As recognized by the District Attorney, the only potential problem with this avenue of

appeal for the State is this Court’s previous decision in State v. Morgan, 160 S.W.3d 1

(Tex.Crim.App. 2004). In Morgan, the State requested a pre-trial ruling on how the trial court

would interpret the information in that case – whether it would treat the DWI, as alleged, as a

Class A Misdemeanor or Class B Misdemeanor. The trial court granted the State’s request and

entered a pre-trial order explaining that it interpreted the information as alleging a Class B

Misdeameanor with enhanced punishment (but still with a range of sentences less than a Class A

Misdemeanor). The State took an interlocutory appeal under Art. 44.01(a)(1), arguing that the

judge’s ruling was tantamount to dismissing a portion of an information. 160 S.W.3d at 2-3.

The court of appeals accepted jurisdiction and affirmed, but this Court granted the State’s

petition and held, “The order in this case affected only Morgan’s possible punishment range. As



7

a result, this is an interlocutory appeal for which appellate courts have no jurisdiction.” Id., 160

S.W.3d at 5. This Court then dismissed the appeal.

Morgan should not control the potential situation in the instant case. The dismissal of

death as a possible punishment is much more significant than the trial court’s order in Morgan

interpreting an existing information in a way that affected the possible range of punishment by a

few months. As the Supreme Court recognized in Woodson v. North Carolina, 428 U.S. 280,

305 (1976), “Death, in its finality, differs more from life imprisonment than a 100-year prison

term differs from one of only a year or two.” Indeed, it is this fundamental difference that led

the Court to require heightened reliability in capital sentencing proceedings. Id . (“Because of

that qualitative difference, there is a corresponding difference in the need for reliability in the

determination that death is the appropriate punishment in a specific case.”)

It is for this reason that the federal courts treat an order dismissing the death penalty as

tantamount to the striking of a count in a federal indictment and, for that reason, treat is as an

appealable order under the federal statute comparable to Article 44.01 of the Texas Code of

Criminal Procedure. As explained in United States v. Acosta-Martinez , 252 F.3d 13, 17 (1 Cir.st

2001),

By striking a statutorily authorized penalty, the district court effectively dismissed

a significant portion of the counts against the defendants – the type of order

appealable under [United States v. ]Levasseur , [846 F.2d 786 (1 Cir. 1988)].st

The order appealed from has significant consequences for the trial of the case,

consequences every bit as important as the consequences from striking a count in

an indictment.

The Court went on to explain that the removal of death as a possible sentence completely

changes the nature of the trial proceeding:

The order affects not merely the sentence. By prohibiting a capital prosecutionand thus rendering inapplicable the FDPA [Federal Death Penalty Act], the



All the federal circuits that have had occasion to consider the appealability of a pretrial order dismissing8

death as a possible punishment have reached the same result as Acosta-Martinez . See United States v. Bass, 266

F.3d 532 , 535 (6 Cir. 2001) (dismissal of the death penalty notice is “in effect, a partial dismissal of the charge”);th

United States v. Cheely, 36 F.3d 1439 , 1441 (9th Cir. 1994) (citing United States v. Woolard ); United States v.

Woolard , 981 F.2d 756 , 757 (5th Cir. 1993) (d ismissing death penalty “effectively removed a d iscrete basis of

criminal liability”).

8

district court's order materially altered the conduct of trial. As [United States v.]

Cheely[, 36 F.3d 1439 (9 Cir. 1994),] noted, a defendant in a capital case isth

entitled to extra peremptory challenges, Fed.R.Crim.P. 24(b), and to have two

attorneys represent him, 18 U.S.C. § 3005 (1988). See 36 F.3d at 1441. The

government, in turn, may seek a ‘death qualified’ jury. Id. Sentencing in a

capital case is presumptively decided by the jury, 18 U.S.C. § 3593(b), in a bifurcated proceeding. The district court's order here upset those procedures. We

think the effect of the order here is sufficiently like the effects from the categoriesof orders as to which § 3731 permits an appeal that this appeal falls well within

the scope of Congress’ intent in § 3731.

252 F.3d at 17.8

For these reasons, and because Article 44.01 is intended to provide the State the same

rights of appeal as the federal government under 18 U.S.C. § 3731, Article 44.01 permits an

interlocutory appeal by the State when a trial court dismisses the death penalty as a possible

punishment. Leave to file the District Attorney’s Petition should, therefore, be denied, because

the State will have an adequate remedy at law to seek review of any order granting Mr. Green’s

Amended Motion.

B. The District Attorney Does Not Have a Clear and Indisputable Right to an

Order Denying the Amended Motion

1. The constitutional theory underlying Mr. Green’s claim is firmly

rooted in Supreme Court precedent

Addressing the holding of Furman v. Georgia, 408 U.S. 238 (1972) four years later in

Gregg v. Georgia, 428 U.S. 153, 188 (1976), the Supreme Court explained that in Furman it

held, under the Eighth Amendment, that the “death penalty could not be imposed under

sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and



9

capricious manner.” Gregg , 428 U.S. at 188 (paraphrasing Furman). Four years after Gregg ,

the Court extended the safeguard against “substantial risk” to the determination of guilt or

innocence in a capital case. In Beck , 447 U.S. at 638, the Court explained, “To insure that the

death penalty is indeed imposed on the basis of ‘reason rather than caprice or emotion,’ we have

invalidated procedural rules that tended to diminish the reliability of the sentencing

determination. The same reasoning must apply to rules that diminish the reliability of the guilt

determination.” Id . (footnote omitted). Thus, the Court invalidated an Alabama rule that

precluded instruction on lesser included offenses in capital cases, because such a rule “would

seem inevitably to enhance the risk of an unwarranted conviction.” Id. at 637.

In the years that followed Gregg and Beck , the Court has continued to analyze the Eighth

Amendment’s prerequisite for capital punishment procedures as whether the procedure or factors

at issue give rise to a “substantial,” “unacceptable,” “significant,” or “intolerable” risk of an

unreliable outcome or infliction of harm. See, e.g., Baze v. Kentucky, 553 U.S. 35, 128 S.Ct.

1520, 1530-31 (2008) (holding that a procedure “subjecting individuals to a risk of future harm –

not simply actually inflicting pain – can qualify as cruel and unusual punishment” if the

procedure a creates a “substantial risk of serious harm” or an “objectively intolerable risk of

harm”); Booth v. Maryland , 482 U.S. 496, 502-03 (1987) (“[f]or the reasons stated below, we

find that [victim-impact] information is irrelevant to a capital sentencing decision, and that its

admission creates a constitutionally unacceptable risk that the jury may impose the death penalty

in an arbitrary and capricious manner”), rev’d by Payne v. Tennessee, 501 U.S. 808 (1991)

(finding victim-impact evidence is relevant to capital sentencing, without disturbing

“constitutionally unacceptable standard”); McCleskey v. Kemp, 481 U.S. 279, 313 (1987) (“we

hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias



The argumen t in this motion does not posit that the death pe nalty is always unconstitutional, only that the9

procedure in Texas is too u nreliable to pass constitutional muster in cases like Mr. G reen’s. By contrast, in Furman ,

Justices Brennan and M arshall would have found the death p enalty violated the Eighth Amendment per se. Furman ,

408 U .S. at 257 (Brennan, J., concurring); id. at 314 (M arshall, J., concurring). In support of this position, Justice

Marshall cited, as one of many arguments, the risk of executing an innocent person. Id. at 366-388. Mr. Green is

relying on the same risk but is not arguing that the death penalty is unconstitutional per se as a result of that risk.

10

affecting the Georgia capital sentencing process”); Turner v. Murray, 476 U.S. 28, 37 (1986)

(“[o]ur judgment in this case is that there was an unacceptable risk of racial prejudice infecting

the capital sentencing proceeding”).

The combined risks that Mr. Green identified in his Amended Motion, and that he intends

to address at the upcoming evidentiary hearing, are “risk[s that] cannot be tolerated in a case in

which [a] defendant’s life is at stake.” Beck , 447 U.S. at 638. Based on the constellation of

factors at play in Texas, the system of capital punishment in Texas, as applied in the cases of

people like Mr. Green who assert their innocence, “enhances the risk of an unwarranted

conviction,” and diminishes the reliability of the death sentences it yields, Beck , 447 U.S. at 638,

and thus, violates the Eighth Amendment. Id.9


squarely rejected by the Supreme Court is erroneous

The District Attorney argues that she is indisputably entitled to an order denying the

Amended Motion because the argument advanced by Mr. Green has been squarely rejected by

the Supreme Court of the United States and by this Court. Petition, at 18-24. The District

Attorney’s argument necessarily fails because it is based upon an erroneous characterization of

the grounds for relief asserted in Mr. Green’s amended motion.

The District Attorney relies on four Supreme Court cases: Furman v. Georgia, 408 U.S.

238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976); Herrera v. Collins, 506 U.S. 390 (1993);

and Kansas v. Marsh, 548 U.S. 163 (2006). The issues presented and decided in those cases



11

were quite different from, and do not control, the issue presented by Mr. Green.

The District Attorney relies on Furman as having somehow considered and resolved the

issue presented by Mr. Green because the constitutionality of the death penalty on its face was

before the Court, the decision was made in light of the historic concern surrounding the death

penalty that innocent people could be executed, and that only two of the Justices were willing to

hold the death penalty unconstitutional per se. The inferences the District Attorney seeks to

draw from Furman are fanciful. There was no opinion of the Court in the case, but rather nine

separate opinions. Moreover, the common theme of all nine opinions was that the death penalty,

as applied, was imposed too arbitrarily to satisfy the Eighth Amendment. Rather than being

inconsistent with Mr. Green’s argument, the consensus of the opinions in Furman led to the

principle that would provide the very foundation of Mr. Green’s argument – the risk of arbitrary

and unreliable decisionmaking can be too great to satisfy the Eighth Amendment.

Thereafter, in Gregg v. Georgia, the Court held that the death penalty did not per se

violate the Eighth Amendment, even in the face of the defendant’s argument “that the death

penalty ‘entail[s] both mistake and caprice,’ and that ‘some people will be killed wrongly.’”

Petition, at 19 (citing cases). The rejection of the argument that the death penalty violates the

Eighth Amendment per se because of the risk of wrongful conviction in no way blunts the

argument advanced by Mr. Green. Mr. Green’s challenge is not to the death penalty per se

because of the inherent risk of wrongful conviction in every case. Rather, it is a challenge to the

death penalty as it is currently being applied in Texas, and in particular, in his case. Mr. Green’s

challenge relies on proof that numerous factors have contributed to wrongful conviction in

capital cases, and that the number of these factors that are at play in his case create a substantial

enough risk of wrongful conviction that the Eighth Amendment cannot tolerate that risk in his



12

case. This issue was not rejected by the Court in Gregg .

The District Attorney next relies on Herrera v. Collins, 506 U.S. 390 (1993), in which

the Supreme Court rejected the argument that the “execution of a person who is innocent of the

crime for which he was convicted” amounts to an independent violation of either the Eighth

Amendment or the Due Process Clause. Id. at 398. The Court noted that “[t]his proposition has

an element of appeal, as would the similar proposition that the Constitution prohibits the

imprisonment of one who is innocent of the crime for which he was convicted....” Id. But the

Court recognized that it had previously “observed that ‘[d]ue process does not require that every

conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent

person.’” Id. at 398-99 (quoting Patterson v. New York, 432 U.S. 197, 208 (1977)). The

constitutional safeguards that protect a capital (and indeed any criminal) defendant – the right to

confront adverse witnesses, the right to compulsory process, the right to effective assistance of

counsel, the right to have the prosecution prove its case beyond a reasonable doubt, the right to

trial by jury, the right to be provided favorable evidence known to the prosecution, and the right

to a fair tribunal – were considered by the Supreme Court at that time to be enough to guard

against the risk of wrongful conviction. Id . at 399-400.

Contrary to the District Attorney’s argument, the Herrera Court’s process of analysis

thus supports rather than defeats Mr. Green’s claim. The Court’s reasoning was grounded upon

an Eighth Amendment-based risk analysis, in which the Court held that the constitutionally-

mandated safeguards surrounding a criminal trial – noted above – “have the effect of ensuring

against the risk of convicting an innocent person.” Id . at 399-400. The Herrera Court did not

have before it evidence that, despite these constitutional safeguards, the risk of wrongful

conviction is too great to meet the Eighth Amendment’s requirement of heightened reliability.



13

Indeed, this evidence could not have been before or judicially noticed by the Court, because the

systematic study of wrongful convictions and the factors that contribute to such mistakes had not

yet commenced in 1993. Herrera plainly did not hold that when the factors giving rise to the

risk of convicting an innocent person are so substantial that the risk violates the Eighth

Amendment’s requirement of reliability, there is no Constitutional remedy.

Finally, the District Attorney’s reliance on Kansas v. Marsh is misplaced. The issue

presented and the holding in Marsh were described in the first paragraph of the Court’s decision:

Kansas law provides that if a unanimous jury finds that aggravatingcircumstances are not outweighed by mitigating circumstances, the death penalty

shall be imposed. Kan. Stat. Ann. § 21-4624(e) (1995). We must decide whether this statute, which requires the imposition of the death penalty when thesentencing jury determines that aggravating evidence and mitigating evidence are

in equipoise, violates the Constitution. We hold that it does not.

548 U.S. at 165-66. In a dissenting opinion, Justice Souter reasoned that the increasing number

of exonerations in capital cases should inform the Court’s judgment even on sentencing issues

such as the one before the Court, and that a heightened concern over the unreliability of capital

trials should lead the Court to require even greater safeguards for reliability in every aspect of

capital trials. Id . at 207-11. Justice Scalia responded in a concurring opinion, questioning the

accuracy of capital case exoneration data, and concluding that what he believed to be the small

risk of error in capital cases was constitutionally acceptable. Id . at 185-99.

This debate between dissenting and concurring Justices warranted little attention from the

Court and did not enter into its holding. The Court first noted that this debate was irrelevant to

the narrow sentencing issue before the Court:

[T]he availability of DNA testing, and the questions it might raise about the

accuracy of guilt-phase determinations in capital cases, is simply irrelevant to the

question before the Court today, namely, the constitutionality of Kansas' capital

sentencing system. Accordingly, the accuracy of the dissent’s factual claim that



14

DNA testing has established the ‘innocence’ of numerous convicted persons

under death sentences--and the incendiary debate it invokes--is beyond the scopeof this opinion.

Id . at 180 (emphasis in original). The only comment the Court made that has any relevance to

the issue presented by Mr. Green is the following:

[T]he logical consequence of the dissent’s argument is that the death penalty can

only be just in a system that does not permit error. Because the criminal justice

system does not operate perfectly, abolition of the death penalty is the only

answer to the moral dilemma the dissent poses. This Court, however, does not sitas a moral authority. Our precedents do not prohibit the States from authorizing

the death penalty, even in our imperfect system.

Id . at 181.

Nothing about the Court’s two comments about the concurring and dissenting Justices

debate is instructive on the issue presented by Mr. Green. The first comment simply notes that

the issue presented by the case has nothing to do with the accuracy of guilt-innocence

determinations. The second comment, that “[o]ur precedents do not prohibit the States from

authorizing the death penalty, even in our imperfect system,” does not proclaim or even

rationally suggest that there is no level of risk of wrongful conviction that would rise to an

Eighth Amendment concerns. It simply asserts that imperfection alone is not enough to call into

question the operation of the capital punishment process.

Nevertheless, the District Attorney draws the following inference from the Court’s two

comments:

Even if the Defendant were able to demonstrate that the operation of the Texasdeath penalty statute at present creates the substantial risk of an unwarranted

conviction of innocent people in violation of the Eighth Amendment, such a

showing would be irrelevant to the question concerning the constitutionality of Texas’ capital sentencing system. Cf. Marsh, 548 U.S. at 180. The United States

Supreme Court has made it quite clear that the existence of innocent persons on

death row is irrelevant to a determination of the constitutionality of a state’scapital sentencing system.



15

Petition, at 20. This conclusion is not in any respect a conclusion the Supreme Court has made.

The Supreme Court did not hold, or even say, in Marsh that a showing that a state death penalty

process creates a substantial risk of wrongful conviction would be irrelevant to the

constitutionality of that process. The Court said only that a showing concerning wrongful

convictions was irrelevant to the narrow sentencing issue presented in Marsh. As we have

shown in discussing all the cases relied on by the District Attorney, the Supreme Court has never

held or “made ... quite clear that the existence of innocent persons on death row is irrelevant to a

determination of the constitutionality of a state’s capital sentencing system.”

3. The District Attorney’s argument that Mr. Green’s claim has beensquarely rejected by this Court is erroneous

The District Attorney argues that two cases decided by this Court also demonstrate that

there is no dispute as the State’s entitlement to prevail as a matter of law. However, these two

cases, Scheanette v. State, 144 S.W.3d 503, 505-06 (Tex.Crim.App. 2004), and Paredes v. State,

129 S.W.3d 530, 540 (Tex.Crim.App. 2004), in no way blunt the legal force of the issue

presented by Mr. Green. In neither case does this Court discuss the argument advanced by Mr.

Green, that the Eighth Amendment can be violated if the cumulative risk of wrongful

convictions of innocent people is substantial enough. However, the Court does acknowledge

that if the defendant or appellant claims he is innocent, the risk of executing an innocent person

becomes relevant as a matter of due process. Scheanette, 144 S.W.3d at 506; Paredes, 129

S.W.3d at 540. The District Attorney acknowledged the same principle in her Motion to Recuse

Judge Fine, at 20 (“[t]he [C]ourt [of Criminal Appeals] has consistently rejected such claims,

absent an ability by the capital murder defendant to show that his own rights have been

violated”) (attached to the Petition for Writ of Prohibition and Writ of Mandamus, as Exhibit



16

11).

By contrast to Scheanette and Paredes, Mr. Green does assert his innocence, and in the

evidentiary hearing will demonstrate that three of the capital-case-specific risk factors that

contribute to wrongful convictions and six of the non-case-specific risk factors that contribute to

wrongful convictions are present in his case. See p. 2 & n.4, supra.

Accordingly, Mr. Green does have standing – under the very Court of Criminal Appeals

cases cited by the District Attorney – to assert that he is likely to become a victim of a system

that carries a substantial risk of convicting innocent people, and that this risk violates his rights

under the Eighth Amendment.



17

IV. CONCLUSION AND REQUEST

For these reasons, the Court should deny leave to file the Petition for Writ of Prohibition

and Petition for Writ of Mandamus. In the event, the Court does grant leave to file the Petition,

Mr. Green asks that he be given the opportunity to submit further briefing on the merits.

Respectfully submitted,

Richard Burr John P. Keirnan Robert K. Loper

SBN 24001005 SBN 11184700 SBN 12562300PO Box 525 917 Franklin St., Ste 550 111 W. 15 Streetth

Leggett, TX 77350 Houston, TX 77002 Houston, TX 77008

713-628-3391 713-236-9700 713-880-9000713-893-2500 (fax) 713-236-1802 (fax) 713-869-9912 (fax)

By

Counsel for Real Party in Interest, John Edward Green

Certificate of Service

I hereby certify that the foregoing pleading was served by delivery to counsel for Relator,

Allen Curry, Assistant District Attorney, 1201 Franklin Street, Ste 600, Houston, TX 77002; bydelivery to Respondent, Honorable Kevin Fine, Presiding Judge, 177 District Court, 1201th

Franklin Street, Ste 1900, Houston, TX 77002; and by mail to Greg Abbott, Office of the

Attorney General, PO Box 12548, Austin, TX 78711, and Jeffrey Van Horn, State Prosecuting

Attorney, PO Box 12405, Austin, TX 78711, this 23 day of November 2010.rd

Counsel for Real Party in Interest John Edward Green

Green Defense Brief in Opposition to Mandamus

Documents

Transcript of Green Defense Brief in Opposition to Mandamus