HOUSTON — The highest criminal court in Texas ruled yesterday that a Houston judge does not have the authority to order or preside over a court hearing questioning the constitutionality of the state’s death penalty.
The Texas Court of Criminal Appeals said state District Judge Kevin Fine was “acting beyond the scope of his lawful authority’’ when he decided to hold the two-week hearing, which began last month but was temporarily stopped after two days at the request of prosecutors.
Last spring, Fine declared the Texas death penalty statute unconstitutional after granting a pretrial motion in a capital murder case he is judging. Under heavy criticism, Fine clarified his ruling, saying the procedures the state follows to get a death sentence are unconstitutional. He then rescinded his ruling and ordered the hearing, saying he needed to hear evidence on the issue.
Fine is a judge in Harris County, which has sent more inmates to the lethal-injection gurney than any other US county.
Lawyers for the Houston man who had requested the hearing had argued that flaws in how death penalty prosecutions are conducted in Texas have resulted in a risk that innocent people will be executed.
They said their client, John Edward Green Jr., is innocent and that the case against him uses some of the same faulty evidentiary procedures, including problematic eyewitness identification and evidence offered by informants, that have resulted in others being wrongly convicted. Green, who is awaiting trial, faces a possible death sentence if convicted of fatally shooting a Houston woman during a June 2008 robbery.
In its 16-page ruling, the appeals court said the issues raised by Green’s attorneys are important moral and public policy questions more suitable for debate by legislators and not the courts. The appeals court also said it was premature for Green to be challenging the state’s death penalty law when he has yet to be tried or convicted.
“Neither trial judges nor judges on this court sit as a moral authority over the appropriateness of the death penalty,’’ the appeals court said. “We can determine only whether it has been constitutionally imposed by a jury after a specific conviction and sentence.’’
During a court hearing yesterday, Fine moved Green’s case forward, setting a May 26 trial.
Casey Keirnan, one of Green’s attorneys, said he disagreed with the ruling but wouldn’t appeal it.