Green Defense Brief in Opposition to Mandamus

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The defense's brief in opposition to the States's petition for leave to file in State ex rel Lykos v. Fine, the mandamus case arising out of State v. John Green, in which Judge Kevin Fine set a hearing on the constitutionality of Texas's death penalty procedure statute.

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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, 177TH DISTRICT COURT OF TEXAS, 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 SBN 24001005 PO Box 525 Leggett, TX 77350 713-628-3391 713-893-2500 (fax)

John P. Keirnan SBN 11184700 917 Franklin St., Ste 550 Houston, TX 77002 713-236-9700 713-236-1802 (fax)

Robert K. Loper SBN 12562300 111 W. 15th Street Houston, TX 77008 713-880-9000 713-869-9912 (fax)

Counsel for Real Party in Interest, John Edward Green

TABLE OF CONTENTS I. II. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE FILING OF THE DISTRICT ATTORNEY’S MOTION FOR LEAVE TO FILE THE PETITION FOR WRITS OF PROHIBITION AND MANDAMUS IS PREMATURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 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 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 The District Attorney’s argument that Mr. Green’s claim has been squarely rejected by the Supreme Court is erroneous . . . . . . . . . . . . . . . 10 The District Attorney’s argument that Mr. Green’s claim has been squarely rejected by this Court is erroneous . . . . . . . . . . . . . . . . . . . . . . 15

III.

B.

2.

3.

IV.

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

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

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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 ii

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 (1st Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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

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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”).1 The Amended Motion argues in part: 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 at least 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,2 id. at 19-27, and nine more such factors, not unique to capital cases, that exacerbate the risks of wrongful conviction associated with the death-penalty-specific factors.3 Id. at 27-64. Finally, the Amended Motion argues that 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-

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The Amended Motion is attached as Exhibit 3 to the District Attorney’s Petition for Writ of Prohibition and Petition for Writ of Mandamus. These factors are (a) crime clearance rates and pressure on the police, compromising thoroughness; (b) heightened publicity and public pressure; (c) the death qualification of prospective 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 guilt-innocence matters; and (e) the tendency of capital juries to consider punishment prior to determining guilt, which impairs guilt-innocence factfinding.
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These factors are (a) eyewitness identifications obtained without safeguards against mistaken identification; (b) confessions obtained without safeguards against false admissions; (c) perjured testimony by informants who receive compensation or other 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 process to serve as a safeguard against wrongful conviction; (i) juror compensation so low as to deprive capital defendants of juries drawn from a fair crosssection of the community.

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.

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Mr. Green will show that three of the risk factors are specifically associated with the prosecution’s case 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. Green will also show that six additional 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 prospective jurors, which leaves the jury conviction-prone; (g) the tendency of capital juries to consider 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.

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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,5 clearly the gravamen of the District Attorney’s complaint is her expectation 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
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The statement of the case describes the Petition as seeking numerous forms of relief: an order requiring Judge Fine (1) to withdraw his order for an evidentiary hearing (now scheduled to commence on December 6, 2010) on Mr. Green’s Amended Motion 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 State’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 writ 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 Defendant’s motion to declare the Texas death penalty statute unconstitutional.” Petition at 44.

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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)).

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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’s authority to appeal under Title 18, United States Code, Section 3731. State v. 5

Moreno, 294 S.W.3d 594, 597 (Tex. Crim. App. 2009).[6] The federal government is allowed to appeal orders where a district court has stricken a death penalty notice 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 States v. 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

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

In an earlier Moreno case, State v. Moreno, 807 S.W .2d 327 (Tex.Crim.App. 1991), this Court explained that it must look to the federal courts’ decisions allowing appeals by the government for guidance in applying Article 44.01: [T]he Legislature made abundantly clear in the Bill Analysis that it intended to extend to the State appellate 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.

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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 (1st Cir. 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 (1st Cir. 1988)]. 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 prosecution and thus rendering inapplicable the FDPA [Federal Death Penalty Act], the 7

district court's order materially altered the conduct of trial. As [United States v.] Cheely[, 36 F.3d 1439 (9th Cir. 1994),] noted, a defendant in a capital case is 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 categories of 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
8

All the federal circuits that have had occasion to consider the appealability of a pretrial order dismissing death as a possible punishment have reached the same result as Acosta-Martinez. See United States v. Bass, 266 F.3d 532, 535 (6 th Cir. 2001) (dismissal of the death penalty notice is “in effect, a partial dismissal of the charge”); 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) (dismissing death penalty “effectively removed a discrete basis of criminal liability”).

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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 9

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 2. The District Attorney’s argument that Mr. Green’s claim has been 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
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The argument in this motion does not posit that the death penalty is always unconstitutional, only that the procedure in Texas is too unreliable to pass constitutional muster in cases like Mr. Green’s. By contrast, in Furman, Justices Brennan and Marshall would have found the death penalty violated the Eighth Amendment per se. Furman, 408 U.S. at 257 (Brennan, J., concurring); id. at 314 (Marshall, 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.

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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 11

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 constitutionallymandated 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. 12

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 aggravating circumstances 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 the sentencing 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 13

DNA testing has established the ‘innocence’ of numerous convicted persons under death sentences--and the incendiary debate it invokes--is beyond the scope of 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 sit as 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 Texas death 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’s capital sentencing system. 14

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 been squarely 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 15

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.

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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 SBN 24001005 PO Box 525 Leggett, TX 77350 713-628-3391 713-893-2500 (fax) John P. Keirnan SBN 11184700 917 Franklin St., Ste 550 Houston, TX 77002 713-236-9700 713-236-1802 (fax) Robert K. Loper SBN 12562300 111 W. 15th Street Houston, TX 77008 713-880-9000 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; by delivery to Respondent, Honorable Kevin Fine, Presiding Judge, 177th District Court, 1201 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 23rd day of November 2010.

Counsel for Real Party in Interest John Edward Green

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