district judge

U.S. District Judge Nelva Gonzales Ramos struck down Texas’ controversial voter ID law Thursday, less than two weeks before the start of early voting for November elections.

Senate Bill 14 required voters to show photo identification at the polls. Gov. Rick Perry signed it into law in 2011, drawing criticism from people such as U.S. Attorney General Eric Holder, who said Texas would be his first stop at overturning voter ID laws, and state Sen. Rodney Ellis, D-Houston, who testified against the law. 

In her ruling, Ramos called the testimony an example of “Texas’ racially charged communities, the power of the polls, and the use of election devices to defeat the interests of the minority population.”

Ramos equated SB14 to a poll tax and said the law used the excuse of preventing voter impersonation to prevent minorities from voting. She acknowledged that while the Supreme Court does not recognize voter ID laws as poll taxes, other courts have come to the same conclusion as she did. 

“The Court holds that SB14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose,” Ramos’ ruling states.

Ramos ruled that Texas would return to pre-voter ID laws in election, where voters simply had to present a registration card.

“There has been a clear and disturbing pattern of discrimination in the name of combating voter fraud in Texas,” Ramos’ ruling states.

Early voting will begin on Oct. 20 and Election Day is Nov. 4.

While passed in 2011, the law did not go into effect until after a 2013 Supreme Court ruling struck down a section of the Voting Rights Act.

Lauren Bean, spokeswoman for the Attorney General Greg Abbott, said the state would appeal the ruling and will seek a reversal before voting starts.

“The State of Texas will immediately appeal and will urge the 5th Circuit to resolve this matter quickly to avoid voter confusion in the upcoming election,” Bean said. “The U.S. Supreme Court has already ruled that voter ID laws are constitutional, so we are confident the Texas law will be upheld on appeal.”

Abbott’s gubernatorial opponent, state Sen. Wendy Davis, D-Fort Worth, praised Ramos’ decision in a statement.

“This is great news for democracy,” Davis said. “I call on Attorney General Greg Abbott to drop his defense of a law that a court has now called a ‘poll tax’ and ‘discriminatory’ against African-Americans and Hispanics.”

Photo Credit: Chelsea Purgahn | Daily Texan Staff

Updated (Thursday 4:12 p.m.): One day after U.S. District Judge Orlando Garcia ruled Texas' ban on same-sex marriage unconstitutional, the state of Texas filed a notice of appeal in federal court contesting Orlando's ruling.

Texas attorney general Greg Abbott, the presumptive Republican candidate for governor, and current governor Rick Perry were both named as defendants in the appeal, as well as David Lakey, commissioner of the Texas Department of State Health Services. 

In a statement released Wednesday, Abbott announced his intentions to appeal the ruling and said the case would ultimately go to a higher court.

"Texas will begin [the process] by appealing today's ruling to the Fifth Circuit," Abbott said in the statement. "The ultimate decision about Texas law will be made by the Court of Appeals or the U.S. Supreme Court."

Abbott said ultimately, he believes defining marriage is up to individual states to decide.

"The Supreme Court has ruled over and over that States have the authority to define and regulate marriage," Abbott said. "The Texas constitution defines marriage as between one man and one woman. If the Fifth Circuit honors those precedents, then today's decision should be overturned and the Texas Constitution will be upheld." 

Original story (Wednesday 2:32 p.m.): On Wednesday, San Antonio-based U.S. District Judge Orlando Garcia ruled a ban on same-sex marriage unconstitutional, though the ruling will not take effect until it can be reviewed on appeal.

Garcia, who sits on the U.S. District Court for the Western District of Texas, said his decision is consistent with the U.S. Supreme Court ruling in June that held the federal government must allow married same-sex couples to receive federal benefits.

“After careful consideration, and applying the law as it must, this Court holds that Texas’ prohibition on same-sex marriage conflicts with the United States Constitution’s guarantee of equal protection and due process,” Garcia said. “Texas’ current marriage laws deny homosexual couples the right to marry, and, in doing so, demean their dignity for no legitimate reason.”

The case was put forth by Cleopatra De Leon and Nicole Dimetman, two lesbian women from Austin who sought recognition for an out-of-state marriage license, and Mark Phariss and Victor Holmes, two gay men from Plano who want to get married in Texas. De Leon got her master’s degree from UT-San Antonio, while Dimetman is an alumna of the UT School of Law.

Garcia now joins five other federal judges who have ruled same-sex marriage bans unconstitutional in Virginia, Oklahoma, Utah, California and Kentucky.

Earlier this month, U.S. District Judge John Heyburn ruled that Kentucky’s state ban on gay marriage violated gay and lesbian citizens’ guarantee for equal protection under the law.

“Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them,” Heyburn wrote in his opinion.

In Virginia, Justice Arenda Wright Allen also overturned the state’s ban on same-sex marriage. Like Garcia, Allen stayed the execution of her ruling pending review in an appeals court.

In June, in a 5-4, the Supreme Court overturned a part of the Defense of Marriage Act and ruled the federal government could not deny recognition to same-sex couples whose marriages are legally recognized by the state.

According Greg Abbott, Texas attorney general and favorite to be the Republican nominee for governor, the process to appeal Garcia’s decision will begin in the Fifth Circuit.

“Because the judge has stayed his own decision, his ruling has no immediate practical effect,” Abbott said in a statement. “Instead, the ultimate decision about Texas law will be made by the Court of Appeals or the U.S. Supreme Court.”

Abbott said the U.S. Supreme Court’s precedent gives states the authority to regulate marriage.

“The Texas Constitution defines marriage as between one man and one woman,” Abbott said. “If the Fifth Circuit honors those precedents, then today’s decision should be overturned and the Texas Constitution will be upheld.”

On April 12, U.S. District Judge Sam Sparks of Austin rejected the Texas division of the Sons of Confederate Veterans’ efforts to get the Texas Department of Motor Vehicles board of directors’ approval to issue license plates bearing the Confederate battle flag. The Sons and the nonprofit group’s leaders alleged that Texas DMV board members violated their First Amendment rights by denying approval of the proposed plates and wanted the judge to order the agency to approve the proposed plates.

In his ruling, Sparks surmises that the Texas DMV board members rejected the Sons’ plates because of the Confederate battle flag, which he says “is a symbol which conveys different meanings to different audiences.” But Sparks concludes that it is also a symbol that “has been co-opted by odious groups as a symbol of racism and white supremacy.”

In November 2011, when the Texas DMV board held a public hearing and voted against approving the license plates, the witnesses were numerous and emotional and included high profile politicians. According to an account in the Austin American-Statesman written at the time of the hearing, U.S. Rep. Sheila Jackson Lee, D-Houston, testified against the plate as a racist symbol and displayed a photograph of a Ku Klux Klan member in full white-sheet regalia holding up the Confederate battle flag. “Texas is better than this,” she said.

Another African-American individual testifying, Sparks writes, echoed the sentiments of many when he told his story, which the judge quotes in footnote to the ruling: “When I was 10 years old we walked to school, to the black school. There was a white school where the white kids rode the bus, there was another white school that was a private school, and every morning as we walked on the sidewalks as black people, the white private school bus would slow down as it passed us, while the kids on board spit out the window in our faces and displayed a Confederate battle flag. Every year in our school when they talked about the death of M.L.K., the white kids would bring in the Confederate battle flag and hold it up as a symbol of power.”

But at the same meeting, Texas General Land Office Commissioner Jerry Patterson, who supported the Sons’ bid for the plates, started off his remarks “by quoting infamously ironic statements by Abraham Lincoln and Robert E. Lee, the former suggesting the Great Emancipator in fact harbored racist sentiments, and the latter tending to show General Lee opposed slavery and desired to see all slaves emancipated,” Sparks writes. The judge then adds, “While these quotes help illustrate the complexity of the causes of the Civil War, they also further confirm the problem with the specialty plate at issue here has nothing to do with the [Sons organization] itself or any viewpoint it holds, but with the meaning of the Confederate battle flag, which has, unfortunately, become inseparably connected with racial tensions.”

In his 47-page ruling, Sparks notes that plenty of other states have allowed for similar commemorative plates, including the states of Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee and Virginia.

According to Sparks’ ruling, both statutes and regulations govern the Texas DMV board’s review of proposed plates. Those rules, he writes, quoting them, allow the department to “refuse to create a new specialty license plate if the design might be offensive to any member of the public.”

 Why, then, does the judge agree that such a clause, as applied to the rejection of the proposed license plates, does not trigger a violation of the Sons’ First Amendment rights? The logic of Sparks’ ruling takes three steps — at least.

First, he concludes that the license plates do not constitute a public forum. “[L]icense plates, rather than being a place for people to gather,” are discrete pieces of government equipment to serve the purpose of vehicle identification, he writes, comparing them to mailboxes.  “When the forum is nonpublic, the First Amendment still applies — albeit with reduced force,” he writes. He then concludes that previous precedents have established that “courts must uphold a governmental restriction on speech in a nonpublic forum as long as the restriction is reasonable and viewpoint-neutral.”

To illustrate why the Texas DMV board’s decision was viewpoint-neutral and not discriminatory, Sparks offers a hypothetical example of a World War II-focused historical society that wanted a specialty license plate issued with a logo that included the insignia from all sides in that conflict. The United States’ white star, the British tri-colored roundel, Imperial Japan’s rising sun, the Soviet Union’s hammer and sickle and Nazi Germany’s swastika. “If the historical society sought a specialty license plate using its composite logo, the design would properly be rejected under the specialty plate rules, not due to the (entirely unobjectionable) viewpoint of the society, but due to the derogatory content of its logo, specifically the swastika,” Sparks writes.

Sparks’ opinion offers much for constitutional scholars to chew on, and the lawyers for the Sons are considering an appeal. The last image we want to see on the back of vehicles as we drive down Texas highways is the Confederate battle flag on government-issued property. We know the difference between a private display and government-sanctioned messaging, and therefore we understand the careful path Sparks has taken on this issue. But at the same time, we would welcome an appeal of his ruling, because First Amendment violation allegations are worth looking at a second  — and even third — time.

Texas District Judge Steve Yelenosky issued an injunction that will keep Planned Parenthood in the Women’s Health Program pending resolution of the organization’s lawsuit claiming a rule banning it violates state law.

The organization had asked Yelenosky to extend a temporary order issued two weeks ago that stopped Texas from defunding clinics and doctors that have ties to groups that provide abortions. A new rule, which took effect this month, would effectively deny critical funding to Planned Parenthood clinics that provide preventive health care and contraception services to 110,000 poor women, even though they do not provide abortions and are financially separate institutions.

Unless overturned on appeal, the injunction will remain in effect until a trial can decide Planned Parenthood’s lawsuit. Yelenosky decided Thursday that Planned Parenthood has a reasonable chance to win its lawsuit and that allowing the rule to go into effect would cause irreparable harm to the organization.

Lauren Bean, spokeswoman for the Texas attorney general’s office, said the state would immediately appeal Yelenosky’s decision.

Planned Parenthood attorneys recently lost a federal lawsuit that hinged on a doctor’s right to freedom of speech and association. The argument before Yelenosky on Thursday hinged on whether the so-called “affiliate rule” could result in the loss of federal funding for health care.

Steve McKetta, arguing for Planned Parenthood, explained that a section of Texas law clearly states that any rule that violates federal law, and therefore endangers federal matching funds, is automatically inoperable. He said lawmakers have made it clear that the state Department of Health and Human Services should do everything possible to gain federal matching funds for health programs.

The federal Center for Medicare and Medicaid Services sent a letter to state officials Wednesday that said the affiliate rule violates federal law, and therefore the center was cutting off $36 million a year for the Women’s Health Program on Dec. 31. McKetta said that since the affiliate rule led to the end of federal funding, it should not be enforced.

Republican Gov. Rick Perry has known since March that federal officials would cut off funding and ordered state officials to develop a new program that depended solely on state funding. That program was due to launch Nov. 1, but Perry and Health and Human Services Commissioner Kyle Janek said they would continue to accept federal funding for as long as possible.

However, Perry did say that he would cut off funding to Planned Parenthood immediately, and Planned Parenthood won a temporary order the next day to retain funding. Janek and Perry have both said they will cut the Women’s Health Program if a court decided the affiliate rule is illegal and the state must fund Planned Parenthood clinics that do not provide abortions.

Perry said state lawmakers made it clear that they don’t want any state funds to reach groups such as Planned Parenthood under any circumstances.

Printed on Friday, November 9, 2012 as: Judge issues injunction for Planned Parenthood 

U.S. District Judge Lee Yeakel declared a city policy used to ban Occupy Austin protesters from City Hall unconstitutional this past Thursday, following suit with similar recent rulings nationwide.

The declaration from Yeakel comes as part of the final ruling in a lawsuit filed against the city by Rodolfo Sanchez and Kristopher Sleeman, two protesters with Occupy Austin. The Austin movement is a subset of the national movement, Occupy Wall Street, which promotes financial and social equality. The suit was filed by the plaintiffs in response to being banned from City Hall in October of last year, according to the order.

The overturned policy is titled Criminal Trespass Notices on City Property and addresses the rules and procedures for issuing bans from city property that often accompanies criminal trespass charges received there. The policy allows for police discretion in determining the duration of a ban. It also specifies the review and appeal process for the bans, according to the order.

Sanchez and Sleeman were both banned from City Hall following criminal trespass arrests. Because of the policy’s vagueness and appeal process, it was ruled to be an “erroneous deprivation” of First and 14th Amendment freedoms, according to the order.

The overturned policy was signed into effect last November by City Manager Marc Ott, roughly one month after Occupy Austin protesting at City Hall began, according to the order.

English graduate student Trevor Hoag has participated in protests with the Austin and UT Occupy movements and is focusing his graduate dissertation on the national movement’s struggles. He said the policy is one example of many policies passed throughout the country in regard to the Occupy movement that trample First Amendment rights. He said the policy sets a precedent that could be used to defend public freedoms for years to come.

“It shocked me deeply the way that the protesters were responded to because it seemed to be such an obvious disregard for freedom of speech and the First Amendment,” he said.

Hoag said he hopes this ruling will now be used as a precedent to dismiss other policies in order to further protect the freedom of speech that the nation was built on.

“The precedents from these cases are going to be important because the same things are going to happen again,” Hoag said. “Legal and other actions need to be taken to ensure that those actions, those protest actions, can be as successful as possible in the future. People deserve access to their full rights of speech and assembly without fear.”

The policy enacted in Febuary restricting public use of the City Hall between the hours of 10 p.m. and 6 a.m. remains in effect. Hoag said he hopes the policy is overturned next so the Occupy encampment of the City Hall can resume again and the movement can gain back lost visibility.

Most UT students will remain ineligible to obtain a concealed handgun license after a district court ruling last week.

United States district judge Samuel Cummings threw out a motion to overturn a Texas law that prohibits 18- to 20-year-olds from obtaining a concealed carry license on Thursday.

The National Rifle Association filed a case on May 16, 2011, claiming that the state law keeping people under the age of 21 from carrying a concealed handgun violated the U.S. constitution, wrote Cummings last week in his court opinion on the case.

“The licensing scheme does not burden the fundamental right to keep and bear arms,” Cummings wrote. “Neither does the licensing scheme target a suspect class.”

Although most college students cannot legally carry concealed firearms under the current law, a person under 21 is still eligible for a license to carry a concealed handgun if the person is a “member or veteran of the United States armed forces,” according to the Texas Government Code.

Andre Treiber, spokesman for the University Democrats, said the organization supports Cumming’s decision.

“Look back to your graduating class in high school, and think about if your peers were mature enough then to handle the responsibility that comes with a Concealed Handgun License,” Treiber said. “I certainly know that there are people from my year that I don’t think can responsibly handle guns now, let alone then.”

Treiber said he and other members of the organization have been invested in increasing safety regulation for firearm use for over a year.

“We worked closely with Students for Gun-Free Schools to lobby members of the state legislature over the guns on campus issue,” he said. “The judge’s ruling, then, follows exactly what we like — sensible regulation for a rational interest, that interest being public health and safety.”

Alice Tripp, spokeswoman for the Texas State Rifle Association, said the case was promoted by the NRA.

“It is not a lawsuit brought by us, but we support it,” Tripp said. “Given the other constitutional rights endowed to 18-year-olds — the right to vote, the right to fight in war — [the government of the state of Texas] is not being consistent.”

Tripp also said she thought this lawsuit was not especially related to Texas laws, which prohibit concealed carry on campus.

“This case deals with the discrepancy between the age of voting and the age of concealed carry, and that is what is especially disturbing in this case,” she said.

Printed on Wednesday, January 25, 2012 as: District judge chooses to keep concealed carry license age restriction

Suspended Green Bay Packers defensive lineman Johnny Jolly cries as he testifies in court on Thursday in Houston, sentenced to six years in prison for violating the terms of his probation on a drug charge.

Photo Credit: The Associated Press

HOUSTON — Suspended Green Bay Packers defensive lineman Johnny Jolly was sentenced to six years in prison Thursday for violating the terms of his probation for a drug conviction.

State District Judge Denise Bradley imposed the sentence despite tearful pleas from Jolly and his mother, Phyllis Jolly, to allow the 6-foot-3, 325-pound lineman to be treated for his addiction to codeine instead of going to prison. Jolly’s aunt, agent and drug counselor also testified on his behalf.

“I want to go to rehab to get help,” Jolly told the judge as he wiped away tears with a tissue.

Jolly, 28, was charged with possession of a compound containing codeine, a controlled substance, after a traffic stop in Houston in October. He also was charged with tampering with evidence for attempting to conceal the substance from the investigating officers.

Jolly’s truck was pulled over after he was seen throwing a bag out the window. The bag wasn’t recovered, but Jolly was seen dumping a cup believed to contain codeine on the floor. Two bottles believed to contain codeine were recovered from the vehicle.

The arrest put Jolly in jeopardy of receiving prison time because in April he had pleaded guilty to a codeine possession charge in a deal that wiped out an earlier charge and spared him from prison unless he stumbled again.

After the hearing, Jolly’s attorney, Letitia Quinones, told The Associated Press that the player spent eight weeks in court-ordered rehab after his second arrest, but has only recently faced up to his codeine addiction.

“I don’t look at Johnny as a criminal,” Quinones said. “I look at him as an addict.”

Jolly, who grew up in Houston, was a sixth-round draft pick of the Packers in 2006 after playing at Texas A&M. He was a starter for the Packers in 2008 and 2009. However, he sat out the 2010 season after being suspended by the NFL indefinitely the previous July.

AUSTIN — A federal judge on Tuesday blocked key provisions of Texas’ new law requiring a doctor to perform a sonogram before an abortion, ruling the measure violates the free speech rights of both doctors and patients.

U.S. District Judge Sam Sparks upheld the requirement that sonograms be performed, but struck down the provisions requiring doctors to describe the images to their patients and requiring women to hear the descriptions.

The law made exceptions for women who were willing to sign statements saying they were pregnant as a result of rape or incest or that their fetus had an irreversible abnormality. Sparks questioned whether the Republican-controlled Texas Legislature was trying to “permanently brand” women who are victims of sexual assault.

The law — one of dozens of anti-abortion measures that advanced through state capitals across the United States this year — takes effect Thursday. The New York-based Center for Reproductive Rights had sued to block it.

Supporters argued the law ensures women fully understand what an abortion entails and said some women have regretted having abortions. They said the law would lead to fewer abortions in Texas. About 81,000 abortions are performed every year in Texas.

Opponents argued that requiring doctors to describe a fetus’ features would force them to say things against their will and would violate medical ethics requiring doctors to respect a patient’s autonomy and act in the patient’s best interest.

The Texas Medical Association opposed the law because it dictated when a doctor must perform a procedure and how the doctor must deal with a patient. While a pre-abortion ultrasound is routine, it is not considered medically necessary.

Sparks wrote that forcing doctors to discuss the results with a patient who may not want to listen “compels physicians to advance an ideological agenda with which they may not agree, regardless of any medical necessity and irrespective of whether the pregnant women wish to listen.”

Sparks was particularly troubled by the requirement that victims of sexual assault or incest sign statements attesting to that fact to get around the provision. That would require women to disclose “extremely personal, medically irrelevant facts” that will be “memorialized in records that are, at best, semi-private,” Sparks wrote.

“[It] is difficult to avoid the troubling conclusion the Texas Legislature either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women,” Sparks wrote.

Sparks also struck down several enforcement penalties for doctors who faced losing their medical license and possible criminal misdemeanor prosecution if they did not comply.

The ruling is a “huge victory for women in Texas and a clear signal to the state Legislature that it went too far when it passed this law,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.

The group said it had already received notice the state plans to appeal.

Texas Gov. Rick Perry, a Republican running for president, was critical of Tuesday’s ruling. 

Rais Bhuiyan looks on outside a US District Courthouse in Austin on Wednesday as his lawyer, Khurrum Wahid, discusses Bhuiyan’s attempts to stay the execution of a man who shot him in the face and killed two others in a post 9/11 convenience store shooting spree. The inmate, Mark Stroman, was executed Wednesday evening after U.S. District Judge Lee Yeakel denied Bhuiyan’s suit.

Photo Credit: Thomas Allison | Daily Texan Staff

A man convicted of killing two people in Dallas in 2001 died by lethal injection Wednesday evening, despite pleas to stay the execution from a man who survived an attack by the murderer.

U.S. District Judge Lee Yeakel upheld the execution of convicted killer Mark Stroman on Wednesday afternoon. Yeakel said in a court order that he lacks jurisdiction to interfere with executions and the criminal justice system would be corrupted if the court granted Stroman clemency.

Rais Bhuiyan, the only survivor of Stroman’s post-9/11 shooting spree, announced a lawsuit last week against state officials claiming he was denied the right to mediation with his attacker. Bhuiyan, who was shot in the eye by Stroman while working at a Dallas gas station, said he didn’t learn he had the right to meet with his attacker until May.

Stroman, a former methamphetamine addict and white supremacist, claimed the alleged death of his half-sister in the 9/11 attacks led him to shoot three men he thought were Muslims. He killed two of them and received a death sentence for murdering Vasudev Patel, an Indian immigrant who was working at a Mesquite, Texas, gas station.

Yeakel heard from representatives of the state attorney general‘s office and Khurrum Wahid, an attorney representing Bhuiyan, at the U.S. District Court in Austin before making a decision.

“These men have been tied together for 10 years but kept apart by written law,” Wahid said. “Moving the execution date a few months isn’t really going to harm the state of Texas. It’s a stroke of a pen.”

Assistant Attorney General Cynthia Burton said in court that Bhuiyan did not have proper cause to ask courts to redraw the original order for execution and classified him as a third-party unrelated to Stroman’s murder trial. They also said the case should never have been moved from a state court, and the federal court did not have jurisdiction in cases involving execution. The Fifth Circuit Court of Appeals denied a further appeal, according to The Texas Tribune.

Because the case involves an active lawsuit and pending litigation, staff in the Office of the Attorney General declined to comment.

Wahid claimed in court that Bhuiyan was not informed of his right to communicate with Stroman until May, which violates his freedom of expression. Wahid said the case is not an attempt to reverse original rulings but to address victims’ rights. He said because Bhuiyan’s decision to request mediation was based on his Muslim belief, the state is also violating his constitutionally protected freedom of religion.

Bhuiyan told The Daily Texan his religion has been his primary strength in the years following the attack and the reason behind his pleas to grant Stroman clemency. He said family members of Stroman’s other victims also feel the convicted killer deserves amnesty.

“There is a reference in the Quran that says a person who believes in tolerance and forgiveness is closer to God,” said Nadeem Akhtar whose brother-in-law, Waqar Hasan, was Stroman’s other victim. “We don’t believe in revenge.”

Bhuiyan said despite the outcome, he plans to continue to educate the public on the consequences of hate crimes. Bhuiyan said he wanted to speak to Stroman “from his heart” and felt a meeting with his shooter would be the only way to recover from the attack.

“How can I find closure if Mark is gone?” Bhuiyan said. “He will be gone from this world forever. That will put me into another trauma and open another chain of mental agony.”

Printed on 07/21/2011 as: Man executed despite plea for clemency on his behalf

A district judge will decide if the Texas death penalty statute is constitutional for the first time in the state’s history in a hearing scheduled for Monday.

Harris County Judge Kevin Fine will oversee the case of defendant John Green, who faces capital murder charges following a 2008 shooting of a woman during a robbery. Harris County prosecutors asked for a death sentence, which led to the hearing.

Texas v. Green will examine risk factors that can occur during a capital murder case which could lead to wrongful executions — including faulty eyewitness testimony and a lower quality of lawyering — and the state’s method of fixing the systemic problems.

Andrea Keilen, executive director of Texas Defender Service, said Texas lacks the safeguarding procedures in execution cases used in many other states.

“The Texas system is so deficient — from top to bottom — in terms of its ability to protect innocent people from conviction and execution,” Keilen said. “And once the system makes a mistake, it is totally inadequate and unable to fix the mistake. Those exonerations happen out of a combination of luck and the involvement of people outside of the death penalty system.”

According to Death Penalty Information Center statistics, 12 of the 139 death row prisoners exonerated in the last 35 years were in Texas.

Fine declared the death penalty unconstitutional in March during earlier litigation of the trial. He retracted his statement after public criticism but acknowledged innocent people have been executed in Texas. Following the judge’s statement, the Harris County district attorney’s office filed a motion for Fine to remove himself from the case. A state appeals court denied the motion because Fine had not yet made a decision.

Prosecutors responded by filing a writ to stop the hearing two weeks ago, but all nine members of the state Criminal Court of Appeals, the state’s highest criminal court, denied the motion. The prosecutors are trying to avoid having a hearing in which the truth about the death penalty is put into evidence, Keilen said.

“That says something in and of itself,” she said. “The prosecutors don’t want the public to realize how unreliable the system is because support for the death penalty would decrease.”

The Harris County district attorney’s office declined to comment on the upcoming hearing.
Green’s defense attorney Robert Loper said he is glad they have a chance for a hearing.

“If they were to uphold it, I think that would be the end of the death penalty in Texas,” he said.