The Question No-one’s Answering

With Texas Governor Rick Perry, who holds the distinction of having presided over the highest number of executions of any governor of any state since 1976, making waves in the Republican Presidential race, it’s time to remind ourselves about the death penalty in Texas.

For one thing, there are a few questions which probably deserve answers. For example, does Texas have systems which prevent a court-appointed defence attorney who admitted being incompetent, scientifically unsound forensic evidence and a judge sleeping with a prosecutor sending people to death row? Do these mean that its capital punishment system is fatally flawed? Absurdly, a judge may never be allowed to reach the obvious conclusion.

Just when can a judge enquire as to whether capital punishment is constitutional? That’s the question that has to be asked after a Texas lower court judge’s attempt to look at new evidence and legal arguments was stopped in its tracks by an order of the state’s notorious Court of Criminal Appeals.

The hearing came when defendant John Edward Green’s attorneys pointed out that Texas, with the US’s busiest death chamber, has almost certainly executed one innocent man, and the guilt of several others is questionable. Their argument? That these wrongful executions show that the whole system is broken – a line of thought that bears more than a passing resemblance to Furman v. Georgia, the case where the US Supreme Court started a moratorium from 1972-76 by pointing out the structural flaws and capriciousness of the capital punishment system.

The problem? Texas’s Court of Criminal Appeals – best known for ordering the courthouse shut at 5pm, and thus preventing a death row inmate’s lawyers from filing an application for a stay after a computer error delayed them a few minutes – said that the court couldn’t even have the hearing. Evidently failing to learn from the worldwide outrage last time, the CCA again closed the courtroom doors.

The reason this is particularly bad is that it means that the evidence never gets on the record that would allow a future appellate court to conclude that, like in Furman, Texas’s system does not meet constitutional standards. It punishes capital defence attorneys for doing their job, and coming up with arguments which are not foreclosed by precedent. Having a hearing enables a court to hear evidence of whether the death penalty in Texas has slipped below the high standards required in Gregg v. Georgia, the 1976 case that conditionally ended the moratorium.

This is a state where a probably innocent Cameron Todd Willingham was executed based solely on forensic evidence of arson now known to have been scientifically inaccurate – and where Governor Perry has been accused of deliberately delaying the investigation into Willingham’s innocence. This is a state where Claude Jones was executed when a significant proportion of the evidence was later proven inaccurate by DNA testing which he was not allowed to request before his death. This is a state where Cesar Fierro remains on death row after 32 years because the CCA found a confession forced by corrupt Mexican police holding his parents hostage to have been a harmless error. This is, then, a state where a court should not be prohibited from hearing whether there might be a problem with the death penalty system.

Perry’s candidacy ought to draw political attention to the flaws in his own state’s criminal justice system. Given that the courts in Texas can no longer ask the crucial questions, it is high time that journalists and the electorate do.