District Attorney Pat Lykos of Houston’s Harris County ordered her prosecutors to “stand mute” during a rare hearing to determine whether the Texas death penalty is unconstitutional. The Houston Chronicle called it a last-ditch strategy to end state Judge Kevin Fine’s judicial inquiry into the procedures surrounding the state’s death penalty statute.
The hearing began yesterday and is expected to last two weeks. “It’s arrogant, and it’s contemptuous for the state to decide to not participate when they’re trying to put my client to death,” defense lawyer Casey Keirnan said in court. Prosecutor Alan Curry said he and other prosecutors will remain seated at counsel tables, but that they will not speak. Fine allowed prosecutors to listen without objection to testimony from anti-death penalty experts, legal scholars and investigators. The case is believed to be the first time a court will consider the constitutionality of the Texas death penalty in the context of analyzing whether there is a substantial risk of convicting the innocent. Defense lawyers for John Edward Green are arguing that Texas has executed two innocent defendants, and the procedures surrounding the death penalty in Texas are unconstitutional because there are not enough safeguards.