Texas' messy death penalty saga continues Monday in a Houston courtroom, where a district judge will for the first time in state history consider whether the risk of executing an innocent person makes capital punishment unconstitutional.

Harris County District Judge Kevin Fine is set to hold a hearing in the case of John Edward Green, who is charged with fatally shooting a Houston woman during a robbery in June 2008. Harris County prosecutors are seeking the death penalty in the case. But Green’s attorneys and capital punishment opponents want Fine to rule that prosecutors can’t seek the death penalty because the way it is administered in Texas is unconstitutional. They say they have proof that at least two wrongfully convicted men have been executed. With so many chances for error in the courts, they argue, Texas shouldn't risk putting an innocent person to death. “The current system is profoundly and fundamentally flawed from top to bottom,” says Andrea Keilen, executive director of the Texas Defender Service.

Prosecutors, however, argue that higher courts, not a trial judge, should rule on the constitutionality of the death penalty. Besides, they write in a brief, Green hasn’t been convicted, so the whole question of the death penalty in his case ought to be a moot point.

The case before Fine is less about Green than a string of high-profile prosecutions that have raised serious questions about whether Texas has wrongfully sent innocent men to death row. Innocence Project co-director Barry Scheck, who is working on the Green case, says he'll focus on Cameron Todd Willingham and Claude Jones. Evidence obtained before and after their executions, he says, proves that both men were wrongfully convicted.

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Jones was executed in 2000 based on false evidence, Scheck contends. Recent DNA testing commissioned by the Innocence Project and the Texas Observer shows that a strand of hair that prosecutors said proved Jones killed an East Texas liquor store owner did not belong to him. The hair came from the victim. Jones had asked then-Gov. George W. Bush to stop his execution to allow time to test the DNA, but his request was denied. The new evidence doesn’t prove Jones was innocent, but Scheck says it would have raised enough doubt to trigger a new trial if the evidence had been collected before the execution. “His conviction would have been vacated, I’m sure,” Scheck says. “That’s a pretty serious error.”

Willingham was executed in 2004, after he was convicted of intentionally starting a 1991 fire that killed his three young daughters. Several arson experts who examined the evidence both before and after the execution have said the blaze started accidentally. Despite the expert conclusions, State Fire Marshal Paul Maldonado has said he stands by the original ruling of arson. Scheck says he hopes to question Maldonado during the hearing in Houston about why he discounts evidence that others say proves state investigators were wrong. “The position he took was indefensible,” Scheck says.

Another man whose case has drawn attention, Ernest Ray Willis, was convicted based on arson evidence similar to that in the Willingham case. But Willis is alive now; he was exonerated because a law firm took up his case pro bono. Scheck and the other attorneys say this proves that the death penalty process is arbitrary — that luck is the biggest factor in whether a condemned inmate gets adequate lawyers to investigate and pursue claims of innocence.

Additionally, they argue that although lawmakers and the governor have created four separate commissions to reform the criminal justice system, improve the use of science in the courtroom and reduce the risk of errors, no major changes have resulted. “We have a just wholly inadequate process,” Keilen says.

If Fine rules that Texas’ death penalty process is unconstitutional, Keilen says, it could mean a halt to capital punishment in Texas until or unless lawmakers implement deep reforms that better protect against wrongful convictions. In fact, Fine already did rule the process unconstitutional earlier this year, when Green’s lawyers initially filed the motion. The ruling elicited strong denouncements from Gov. Rick Perry and Attorney General Greg Abbott, who called the ruling “unabashed judicial activism.” Fine subsequently rescinded his original ruling and ordered lawyers to submit briefs so he could examine the evidence. Abbott spokeswoman Lauren Bean says the Attorney General hopes Fine will allow Green’s case to move forward "so that justice is no longer delayed for the victim's family — including her two children, who witnessed their mother's brutal murder."

Harris County District Attorney Pat Lykos’ office declined to comment for this story. But in briefs filed with the court, the prosecution argues that a trial judge shouldn’t rule the death penalty unconstitutional. Higher courts, both the Texas Court of Criminal Appeals and the U.S. Supreme Court, have repeatedly dealt with and answered affirmatively the question of constitutionality and capital punishment.

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Prosecutors also contend that they should not have to argue about the innocence or guilt of defendants in other death penalty cases. Anyway, they argue, those issues are irrelevant to the Green case. “It is incumbent upon the defendant to show that ... the statute is unconstitutional as to him and his situation,” prosecutors write. “It is not sufficient to show that the statute might be unconstitutional as to others.”

What’s more, they argue, Green is presumed innocent right now. He hasn’t been convicted of murder, nor has he been sentenced to death. An order to stop the state from seeking the death penalty against Green because others might have been wrongfully executed is inappropriate, they maintain.

James Liebman, the Simon H. Rifkind professor at Columbia Law School in New York, says that because the challenge comes in the most active death penalty state at a time when exonerations are on the rise, criminal justice advocates nationwide are paying attention to the Green case. “There’s just been a long string of outcomes and information pouring out of capital cases across country really, but particularly in Texas, which have called into question the capacity of the system to reach accurate results,” Liebman says.

Nationally, 139 people have been exonerated from death row since 1976, including 12 in Texas. The latest man to be freed from Texas death row was Anthony Graves, who was released in October after serving 18 years behind bars — 12 on death row — for his alleged role in the horrific murder of a family of six in 1992. Years after a court ordered a retrial in Graves' case, a new prosecutor in the county where Graves was convicted concluded there was not enough evidence to connect him to the crime. His initial conviction was based on the testimony of Robert Carter, who confessed to committing the murders and implicated Graves as his helper. Carter, as he lay in the execution chamber in 2000, admitted Graves had nothing to do with the crime.

Liebman says it's time for an exhaustive review of Texas death penalty procedures. “At a certain point,” he says, “evidence of the system’s inability to function appropriately leads to the conclusion there ought to be a real inquiry.”

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