Trial focuses on constitutionality of death penalty

HOUSTON

This is a case we've been following for several months now.

This all started in the spring when Judge Kevin Fine ruled the Texas death penalty unconstitutional, raising a lot of eyebrows. He then rescinded that particular ruling. Monday's hearing is a new one and it has a lot of people paying close attention.

An early morning protest in front of the Harris County courthouse set the tone for what has been described as a most unusual court hearing: death penalty opponents hoping Judge Fine will rule the punishment as unconstitutional in the state of Texas.

"Even if the judge rules in favor of this motion, I'm sure the state of Texas will appeal it," said Gloria Rubac, a protester. "But I think that more and more, because of cases of innocence, people are now willing to look at that issue and say woah we've got something that's not working and we need to stop."

Inside the courtroom, attorneys for accused murderer John Green argued that Texas has executed innocent people and the death penalty isn't being administrated properly in the state.

"We're not necessarily saying we shouldn't have a death penalty," Defense Attorney Bob Loper said. "We're just saying we should to try to get it right and right now as applied, we think there's enough error in it that it's not being applied correctly."

The fact that Judge Fine is even allowing this hearing to go forward has drawn national attention. Earlier this year, he surprised attorneys on all sides when he ruled the Texas death penalty unconstitutional, later rescinding that and then scheduling Monday's hearing.

Prosecutors objected to having the hearing at all.

"The Texas Court of Criminal Appeals and the U.S. Supreme Court have repeatedly upheld up the constitutionally of the death penalty," Harris County Assistant District Attorney Alan Curry said. "We believe it's a legal issue and not an evidentiary issue."

But Judge Fine decided to allow the hearing to go forward. The first witness of the day was a death penalty expert who testified that 138 death roll inmates have been exonerated, including a dozen in Texas.

"Texas is third with 12 exonerations preceded by Florida and Illinois," said Dick Dieter, a witness for the defense team.

Testimony just wrapped up around 4:30pm Monday but is expected to continue for at least another week.