Texas judge puts state's death penalty on trial

HOUSTON Tue Dec 7, 2010 8:41am EST

Death Row guard Sgt. James Ludwig stands outside a cell November 21, 2001 in ''A'' Pod, ''F'' section of Texas' death row located 75 miles northeast of Houston in Livingston, Texas. REUTERS/Richard Carson

Death Row guard Sgt. James Ludwig stands outside a cell November 21, 2001 in ''A'' Pod, ''F'' section of Texas' death row located 75 miles northeast of Houston in Livingston, Texas.

Credit: Reuters/Richard Carson

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HOUSTON (Reuters) - A Houston judge on Monday began a hearing on the legality of the death penalty in Texas, which executes more convicts than any other U.S. state, and will render a high-profile judgment that could influence the national debate on capital punishment.

John Green, 25, is awaiting trial after being charged with murdering a woman during a robbery in Houston in 2008. He says he is innocent.

His lawyers have challenged the constitutionality of Texas' death penalty, claiming that there is a high probability of wrongful convictions and executions under current trial rules. Their effort is predicated on Texas rules that allow defendants to challenge the legality of potential punishments even before trial begins.

The state has executed 464 inmates over the last three decades -- far more than any other U.S. state. But death penalty opponents cite two prominent Texas cases in which significant exculpatory evidence has come to light years after inmates' sentences were carried out.

During roughly two weeks of testimony, state District Judge Kevin Fine will hear arguments from prominent death penalty opponents, who will shine a spotlight on the legal processes and evidentiary support used in Texas' capital punishment trials, which critics say are error-prone.

"This will be an authoritative statement on the death penalty in Texas," said James Liebman, a law professor at Columbia Law School. The case could impact other states like Illinois, where there is a legislative effort to repeal the punishment, Liebman said.

County prosecutors said they will "stand mute" during the hearing, after citing 19 reasons why it should not proceed. Prosecutor Alan Curry told Judge Fine he would "respectfully refuse to participate" in the hearing. Fine later told Curry, "I expect your participation."

Fine evoked the ire of Texas Governor Rick Perry in March when he granted a request by Green's lawyers to declare the state's death penalty as unconstitutional, a common request in capital murder cases that Texas judges routinely deny.

Fine rescinded the ruling after pointing to evidence that "we execute innocent people," and called for the hearing.

Fine is a Democrat who presides in Harris County, which has sentenced more prisoners to death than any other Texas county. Texas is a predominantly Republican state where support for the death penalty runs high.

Current Texas law carries "a nightmare proportion" of risk for the accused to be wrongfully convicted of capital murder and sentenced to the death penalty, said Richard Burr, Green's defense attorney.

Testimony from eyewitnesses, informants and forensic evidence used to convict suspects can be flawed, as are state trial procedures for jury selection and compelling state prosecutors to hand over contradictory evidence, Burr said.

According to the Death Penalty Information Center, 138 U.S. prisoners sentenced to death have been exonerated since 1973, and 12 of those cases have been in Texas.

Exonerations show that state prosecutors sometimes make mistakes during capital murder trials and "there certainly is the risk of executing the innocent and that risk still exists today," said Richard Dieter, the center's executive director.

(Additional reporting by Ed Stoddard in Dallas and Jim Forsyth in San Antonio; Editing by Cynthia Osterman)

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