How I'll Be Spending My Days

 Posted on December 03, 2010 in Uncategorized

This (via Brian Rogers, Chron.com) is what I'll be watching when I'm not otherwise occupied in the next couple of weeks: the hearing in the 177th District Court on whether Texas's death penalty procedure violates the Eight Amendment because it creates a significant risk that an innocent person will be executed.

Signed by capital defense veteran Dick Burr, the motion filed by the defense provides a thorough and erudite summary of the reasons that innocent people have most likely been executed in Texas. First, five problems inherent to the seeking of death:

1. Crime clearance rates and pressure on the police;

2. Publicity;

3. Death qualification of prospective jurors;

4. Fear of the death penalty in defendants and their defense team; and

5. The tendency of capital juries to consider punishment before determining guilt.

Then, seven problems that exist at the trial level in Texas death-penalty cases (but that could be avoided):

1. Inadequate compensation of jurors results in jury pools that are not representative of a fair cross-section of the community, diminishing the protection afforded by the jury against overzealous prosecution;

2. Eyewitness identification testimony obtained without safeguards to reduce the risk of misidentification;

3. Confessions without procedures necessary to guard against false confession;

4. Perjured testimony by compensated informants;

5. Junk forensic testimony;

6. Inadequate pretrial discovery procedures; and

7. Juries selected in a racially discriminatory manner.

Finally, two procedures that should guard against wrongful executions, but that in Texas "are so flawed that they contribute to the risk":

1. State habeas proceedings; and

2. Clemency proceedings.

Here, for my fellow law geeks (especially Jeff Gamso), is the motion:Green Amended Motion to Declare Texas Death Penalty Procedure Unconstitutional