JOHN EDWARD GREEN; "QUESTIONABLE FORENSICS"; STAR-TELEGRAM WANTS TEXAS LEGISLATURE TO DEBATE DEATH PENALTY IN AFTERMATH OF DEMISE OF FINE HEARING;

"Nevertheless, the court didn't dismiss the seriousness of the many issues Green has raised: mistaken eyewitness identifications; flawed confessions; questionable forensics; unreliable informants; convictions later overturned because of DNA testing on evidence.

"These are indeed weighty public policy issues, greatly deserving of considerable debate by the appropriate people, in the appropriate forum, and at the appropriate time," Cochran wrote."

EDITORIAL: THE STAR-TELEGRAM;

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BACKGROUND: Texas State District Judge Kevin Fine caused an uproar when he was perceived as ruling that the way the death penalty is currently administered is unconstitutional. Critics are screaming judicial activism, seen as a judicial faux paus and usually a pejorative term; supporters say Fine is a "brave jurist" who has called out death penalty administration on its current merits, or apparent lack thereof. The defendant in this case, John Edward Green, Jr, is charged with capital murder in the 2008 slaying of one of two sisters he allegedly shot during a robbery. Witnessed by the victim's two children, Huong Nguyen, 34, was killed in her own driveway. The case has victims' right advocates calling for justice. In Texas generally, and in Harris County in particular, justice for a capital murder charge is exactly what the law allows for: the death penalty.

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"No, the Texas Court of Criminal Appeals said this week, a criminal defendant can't challenge the constitutionality of the state's capital punishment law before he's even been tried and convicted, much less sentenced to death," the Star Telegram editorial published on January 14, 2011 begins, under the heading, "Death penalty debate should start, not end.

"But that doesn't mean Texans shouldn't be discussing the acute flaws in the system by which the penalty is imposed -- and even whether to continue using it at all," the editorial continues.

"The court laid that heavy responsibility at the feet of state lawmakers meeting now in Austin.

And they should exercise it.

State District Judge Kevin Fine in Houston got this all started last March by prematurely declaring procedures for capital cases unconstitutional in a case involving John Edward Green Jr., who's accused of killing Huong Thien Nguyen, 34, also known as Tina Vo, while robbing her outside her home in 2008.

Fine then pulled back that ruling and started holding a hearing in December during which Green's defense team called witnesses to testify about the number of Death Row inmates who've been exonerated. Green's lawyers wanted to highlight doubts about the guilt of defendants in two high-profile arson cases.

The Harris County District Attorney's Office got the Court of Criminal Appeals to halt that hearing and decide whether Fine should be holding it at all.

Voting 6-2, the court said "no."

Judge Cathy Cochran wrote that's because Green was challenging the death penalty law "as applied" to him before it had been applied.

"He is asking Texas trial and appellate courts to entertain a purely hypothetical claim and make an advisory ruling in a case that has not been litigated to any final resolution," she wrote. "Neither trial nor appellate courts may entertain hypothetical claims."

(Judges Tom Price and Paul Womack dissented from the ruling but didn't indicate why.)

It's a conundrum that a defendant can't guard against what he says could be a wrongful conviction and death sentence -- but what happened in other, unrelated prosecutions won't determine the outcome of Green's case.

Nevertheless, the court didn't dismiss the seriousness of the many issues Green has raised: mistaken eyewitness identifications; flawed confessions; questionable forensics; unreliable informants; convictions later overturned because of DNA testing on evidence.

"These are indeed weighty public policy issues, greatly deserving of considerable debate by the appropriate people, in the appropriate forum, and at the appropriate time," Cochran wrote.

"Certainly the Texas Legislature is an appropriate forum in which to debate these public policy issues.... That is also an appropriate forum to decide whether to abolish the death penalty in Texas or to enact statutory or constitutional improvements to the current legislative system."

Cochran noted that state Rep. Lon Burnam, D-Fort Worth, along with a trio of Houston-area Democrats -- Sen. Rodney Ellis and Reps. Jessica Farrar and Armando Walle -- signed a friend-of-the-court brief supporting Green.

"These legislators are perfectly positioned to bring the issues and concerns addressed in the amicus brief to the attention of the Texas Legislature and to suggest and enact legislative changes as appropriate," Cochran wrote.

She said that criticisms about the potential for an erroneous execution raise "important moral and public policy questions suitable for intense and open debate by legislative policy makers, not by courts considering only the constitutionality of a legal system, not its absolute perfection."

Bills on eyewitness identification and videotaping interrogations died in the 2009 legislative session, but they'll return this year.

Legislators shouldn't stop there. The risk of wrongful convictions in Texas is real. The capital punishment system is troubled and expensive. The Legislature needs to debate how to fix it -- and whether it can adequately be fixed at all."

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The editorial can be found at:

http://www.star-telegram.com/2011/01/14/2770547/death-penalty-debate-should-start.html

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.coM;