Harris County Judge Kevin Fine is presiding over a dramatic hearing that, in essence, has placed the Texas death penalty on trial.  (As the picture to the left suggests, Judge Fine is not your average jurist.  Do the tats suggest an affinity with the accused?)  

According to the Houston Chronicle, “Defense lawyers for John Edward Green are arguing that Texas has executed two innocent defendants, and the procedures surrounding the death penalty in Texas are unconstitutional because there are not enough safeguards.”

To make that case, they are highlighting what they consider to be the wrongful convictions (and subsequent executions) of defendants Cameron Todd Willingham and Claude Jones.  To bolster that case, they will be calling on experts like Barry Scheck of the Innocence Project. 

The basic argument is that prosecutors used eyewitness identification, partial fingerprint evidence and informant testimony to convict Jones and Willingham and now the state plans to employ a similar strategy when Mr. Green goes to trial.

Harris County District Attorney Pat Lykos has ordered the prosecutors assigned to the Green case to remain mute, a silent protest against what Lykos considers a bogus hearing. 

Judge Fine declared the Texas death penalty unconstitutional in March of 2010, then rescinded that ruling in the wake of loud protest from Governor Rick Perry and Attorney General Greg Abbott.  Judge Fine’s critics argue that the death penalty, as practiced in the state of Texas, is settled law which Texas judges are duty bound to uphold whether they personally agree with it or not.

Lykos is attempting to get the Texas Court of Criminal Appeals to order an immediate halt to the hearing in Judge Fine’s chambers. 

A string of exonerations, many of them involving defendants on death row, has placed champions of the status quo on the defensive.  When “Old Sparky” was declared unconstitutional in 1972, Texas moved to lethal injection.  Since the reinstitution of the death penalty in 1976, Texas has executed 464 people, three times as many as any other single state. 

In Texas, support for the death penalty remains strong in theory, but concern over the fairness of the system have grown considerably since the late 1990s.  A poll conducted by the Houston Chronicle in 2002  revealed that “only a slim majority of Harris County residents (52.5%) and Texans (59.2%) believe that the death penalty is applied fairly, and nearly the same number of respondents (59.2% and 55.3%, respectively) said that they believe Texas has executed an innocent person. Nationally, only 43.5% of Americans believe the death penalty is applied fairly and 25.1% believe that an innocent person has been executed in their state.”

In other words, Texans are more likely than most Americans to believe the death is being applied fairly, but far more inclined to believe the state sometimes gets it wrong.  This would appear to suggest that Texans believe it is okay to execute the innocent, but it is more likely that mainstream opinion is highly conflicted and therefore volatile.  This explains the state of high anxiety surrounding the Green case and why Governor Perry has been so determined to limit inquiry into the Willingham case.