The Texas Court of Criminal Appeals said Wednesday that District Judge Kevin Fine does not have the authority to declare the Texas death penalty unconstitutional in a pre-trial hearing.
This latest skirmish in the war over the death penalty in the Lone Star State began in the spring of 2010 when defense attorneys for John Edward Green, who is charged with capital murder, filed a motion before the jury had been selected, asking Judge Fine to declare the death penalty in Texas unconstitutional.
John Brasher, Assistant District Attorney in Wichita Falls, Texas, predicted at the time that the motion by Green’s defense attorneys would fail. Brasher, who is a specialist in appellate criminal law, has handled more than 400 cases which have gone before the Texas Court of Criminal Appeals.
Brasher said previously the motion would not be successful in stopping the death penalty because the Texas Court of Criminal Appeals and the United States Supreme Court have already said the Texas death penalty is constitutional.
Texas highest criminal court said that it was premature for Green to be challenging the state’s death penalty law when Green has not been tried or convicted.
Judge Fine immediately obeyed the ruling by the Texas Court of Criminal Appeals which is led by Presiding Justice Sharon Keller.
The Houston district judge Wednesday set Green’s jury trial to begin on May 26.
The pre-trial hearing requested by Green’s attorneys had begun against a backdrop of much media hype in a Texas courtroom while anti-death protestors held placards in the streets outside.
Green is accused of shooting to death Houng Thien Nguyen, 34, during a robbery in Bellaire Gardens. He is also charged with shooting and wounding her sister.
Nguyen’s two children were present while Green is alleged to have gone on his shooting spree.
The ruling means for one thing that John Edward Green will still be eligible for the death penalty if convicted of capital murder.
Green has been indicted by a Houston grand jury for shooting a woman to death while he was in the process of robbing her.
The evidence arrayed against Green include fingerprints, eyewitness testimony and information from at least one snitch.
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