One of the questions asked by people who aren’t lawyers is why trial courts don’t deal with the big picture, like the introduction of scientifically flawed evidence, by allowing the defense to introduce testimony that the evidence routinely used to convict is crap. 

Lawyers are trained in materiality and relevance, and can explain the rationale. But the truth is, it’s because some judges lack the guts to take the lead, preferring instead to be part of the crowd, do as others have done before them and take no risk of being wrong.  Other judges refuse change because they’re pretty satisfied with the way things are now.  Many, perhaps the majority, sleep well at night knowing another defendant was convicted.  They don’t share your concern.

So when Texas Judge Kevin Fine decided to take on the big picture, whether the state could put a person to death based on flawed evidence, it was huge.  No judge had ever opened the doors so wide before.

Then bam.  The Texas Court of Criminal Appeals slammed the door shut.  Slamming doors shut is something of a favorite of Presiding Judge, Sharon “Killer” Keller.  But like a good court,  the opinion expressed the court’s ruling in lawyerly words.

The 6-2 decision agreed with the district attorney’s office that there is no basis under Texas law to conduct a pretrial hearing to determine the constitutionality of a law.

In addition to saying Green did not have standing to object, the court repeatedly said that the Legislature, not the trial court, is the proper venue for a debate on capital punishment.

“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,” according to the opinion.

Of course, the judges are well aware that the “weighty policy issues” have nothing to do with the issues being presented to Judge Fine.  Legislatures will argue whether people need killing, and whether their constituents will vote for them it they support killing or not.  How they get to the killing isn’t their concern.  That’s for the courts to decide.

Except when a court tried to decide, it was shut down.

In the case of John Edward Green, in whose name all of this is happening for the benefit of the rest of us as well as him, a trial will be had.  During the trial, issues may be raised about the quality and validity of the evidence being used to convict him.  Those issues will be constrained by the concepts of materiality and relevance.  That’s how evidence works. 

Should Green be convicted of murder, the death penalty will be the focus of punishment.  By then, however, the questions of whether a person can be constitutionally put to death based on crap evidence will be moot because he’s already been convicted of the crime. 

The Texas Court of Criminal Appeals knows that Judge Kevin Fine was doing the unthinkable, putting it all together in one place, at one time, so he could make a decision based on the big picture.  They know that the law makes no provision to allow this to happen.  Under our scheme, we don’t admit that the process developed over centuries with the incremental approval of judge after judge is flawed.  Since we don’t admit it, there’s no reason to have a legal process to correct it.

While it’s true that the legislative branch of government could correct all of the problems and issues that were being presented to Judge Fine, that’s not its job.  The Legislature is a representative body, existing to satisfy the whims of the majority.  The judicial branch exists as a check on the whims of the majority.  To fulfill this purpose, the judicial branch would have to be allowed the opportunity to hear what problems might exist with these whims.  Judge Fine was bold enough to take it on.

The Texas Court of Appeals says that the issues that were being raised and presented to Judge Fine could be resolved at “the appropriate time.”  They say this knowing that there will never be an appropriate time.  Case closed.