In a move that’s as sweepingly cynical as it is desperate, Harris County District Attorney Pat Lykos has gotten the Texas Court of Criminal Appeals, on its second bite, to shut down the hearing in the capital case of John Green.  The hearing, before Judge Kevin Fine in Houston, was itself quite remarkable, airing out issues about the use of evidence long known to be dubious, yet consistently used to convict men and sentence them to death.

Mark Bennett in Houston has been following the hearing closely, even live-tweeting the hearing on its first day.  While I’m over-simplifying the situation, the defendant seeks to show that the evidence used to prove guilt in a death penalty case should be subject to heightened scrutiny, or the conviction would fail to satisfy the 8th Amendment.  In short, all the failings of the evidence, eyewitness identification, testimony by paid informants, and fingerprint comparison, which escape review during the ordinary course of trial based on relevance to the particular defendant, are being tested.

The prosecution has taken a curious position in the hearing before Judge Fine, prefacing and concluding its statements with “but we’re not participating,” while participating.  The objective appears to be to get in their licks without legitimizing the proceeding, so they can later argue that they didn’t participate despite their participation.  Judge Fine wasn’t buying.

As science, experience and DNA have developed to make clear that the sort of evidence being offered to put John Green to death for the murder of Tina Vo is too often wrong and unreliable to stake a man’s life on it, the reaction is often posed why the defense doesn’t put an expert on the stand to explain to the jury why the prosecution’s evidence, like eyewitness identification, isn’t anywhere as compelling as ordinary folks assume it to be.

The answer is relevance.  The science is generic, not particularized to the specific case.  By definition, it couldn’t be.  And eyewitness says, under oath and with the utmost sincerity, that the defendant is the man who done it, and that’s that.  Maybe such testimony is prone to error, but there’s no evidence it’s error in this particular case.  There’s the rub.

The flawed legal assumption is that jurors can decide for themselves the weight to be given such evidence, without need to resort to the soft science of its invalidity. The problem is that this flies in the face of decades, maybe millennia, of “common sense,” that bit of ignorance relied on by people to leap over issues they don’t comprehend and arrive at the simple, and wrong, conclusion.  The deeper problem is that it would make the prosecutions job of proving guilt substantially more difficult.  The law has a long tradition of relying on unreliable evidence because it’s the only evidence available.  Without it, how are they supposed to convict?

This hearing before Judge Fine wasn’t a symposium, a tent revival or laboratory.  It was a novel approach, a challenge to the court’s gatekeeper function of allowing unreliable evidence to serve as the mechanism of death. 

The prosecution argued to the Texas Court of Criminal Appeals that the defense was seeking to prove Green’s innocence via evidence of wrongful convictions of others.  The defense countered that this wasn’t the case at all, and the prosecution was mischaracterizing the nature of the proceedings.  The defense wasn’t seeking to prove Green’s innocence, but rather to challenge the reliability of the nature of the evidence against him, and by it, the validity of any result obtained based on such evidence.

This hearing was an airing long awaited, and long needed, and if the legal system is ever to cleanse itself of convictions based on evidence that, despite its having long been held sacrosanct, we have come to realize is deeply flawed,   Just because it’s the evidence available doesn’t make it reliable.  At some point, the law needed to catch up with reality.  This could be the time.

But the Texas Court of Criminal Appeals issued a stay.  Not today, it says, even though its stay come mid-hearing and after its earlier denial of a stay on the exact same basis.  They ordered the parties to brief the mandamus issue.  It was be parsed out in lawyerly fashion, though there really isn’t anything left to be discussed about the issue.

It was a bold move by Judge Kevin Fine to allow the defense the opportunity to pull the shroud off shoddy, unreliable evidence that has convicted countless men and women.  Bold moves are rarely appreciated by those whose interests are vested in the status quo.  We have relied on bad evidence for so long that the idea of testing it now, after all those years and all those bodies convicted, seems almost revolutionary.

Pat Lykos likely doesn’t want to be remembered forever as the prosecutor who blew the game, the one who lost the ability to execute people based on eyewitness identification, long lionized as the best evidence there is when it came to persuading a jury that “he’s the man.”  Maybe the Court of Criminal Appeals wants to put its stamp of approval on Judge Fine’s hearing, to make clear that its a determination whose time has come and to prevent any post-hoc claim that Lykos’ refusal to participate somehow undermines the legitimacy of a ruling.

Or maybe the Texas CCA, whose presiding judge will forever be known as Killer Keller for slamming shut the courthouse doors to make sure there would be a killing that day, wants to protect the good old ways of convicting the bad guys, knowing only too well how difficult it could be if unreliable evidence and tradition don’t prevail.

The outcome of this hearing is by no means assured, even with Lykos’ prosecutors playing the “no participation” game in an effort to derail its legitimacy.  Judge Fine is staring down evidence that has been the mainstay of convictions forever.  But Lykos, like every prosecutor who isn’t a complete braindead, is well aware with the problems with such evidence, and the potential that jurors will persist in their blind faith in its validity so long as it’s not confronted with a meaningful explanation of its inherent flaws. 

So what of the concern that prosecutors not convict the innocent merely because they can?  What of the concern that they not be the instrument of death, only to learn later that they were wrong?  What of the platitudes about seeking justice rather than convictions?  They are now in the hands of the Texas Court of Criminal Appeals.