Green AG Amicus Brief in Favor of Mandamus

8/8/2019 Green AG Amicus Brief in Favor of Mandamus

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Nos. WR-75,015-01 and WR-75,015-02lin tlJe

IN RE THE STATE OF TEXAS Ex REL. PATRICIA R. LYKOS,

Relator,v.

HON. KEVIN FINE, PRESIDING JUDGE,177TH DISTRICT COURT OF TEXAS,Respondent.

BRIEF OF ATTORNEY GENERAL GREG ABBOTT AS AMICUS CURIAE

GREG ABBOTTAttorney General ofTexasDANIEL T. HODGEFirst Assistant Attorney GeneralERIC J. R. NICHOLSDeputy Attorney Generalfor Criminal JusticeJONATHAN F. MITCHELLSolicitor General

ADAM W. ASTONAssistant Solicitor GeneralState Bar No. 24045423OFFICE OF THE ATTORNEY GENERALP.O. Box 12548 (MC 059)Austin, Texas 78711-2548[TeL] (512) 936-0596[Fax] (512) 474-2697COUNSEL FORAMICUS CURIAE


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IDENTITY OF PARTIES AND COUNSELComplainant, Victim, or Aggrieved Party:

Tina VoRelator:

Patricia R. Lykos, District Attorney ofHarris County, TexasCounselfor Relator:

Patricia R. LykosState Bar No. 12716000

Alan CurryState Bar No. 05263700Eric KuglerState BarNo. 00796910

Bill ExleyState BarNo. 24002071

Carolyn Sckerl 'Kari' AllenState BarNo. 17881650

HARRIs COUNTY DISTRICT ATTORNEY'S OFFICE1201 Franklin Street, Suite 600Houston, Texas 77002[Tel.] (713) 755-5810[Fax] (713) 755-6865

Respondent:Hon. Kevin Fine, Presiding Judge, 177th District Court ofTexas

Counsel for Respondent:Stanley G. Schneider

State Bar No. 17790500SCHNEIDER& McKINNEY, P.C.The Lyric Center440 Louisiana, Suite 800Houston, Texas 77002[Tel.] (713) 951-9994[Fax] (713) 224-6008

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RealParty in Interest:John Edward Green, Jr.

Counselfor RealParty in Interest:John Keirnan

State Bar No. 11184700 Attorney at Law 917 Franklin Street, Suite 550 Houston, Texas 77002 [Tel.] (713) 236-9700 [Fax] (713) 236-1802 Robert Loper

State Bar No. 12562300 LOPER LAW 111 West 15th Street Houston, Texas 77008 [Tel.] (713) 880-9000 [Fax] (713) 869-9912 Richard Burr

State Bar No. 24001005 BURR & WELCH, p.e. 2307 Union Street Houston, Texas 77007 [Tel.] (713) 628-3391 [Fax] (713) 893-2500

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TABLE OF CONTENTS

Identity ofParties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Index ofAuthorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Introduction and Summary ofArgument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. The Relief Green Seeks Is Inconsistent with the Text of the United States Constitution and United States Supreme Court Precedent Holding That Capital Punishment Is Constitutional . . . . . . . . . . . . . . . . . . 4 II. Green's Attempt To Evade the Supreme Court's Requirement That Actual-Innocence Claims Must Be Founded on Evidence of the Claimant's Own Actual Innocence Should Be Rejected . . . . . . . . . . . . . . . 7 III. This Court's Precedent Likewise Forecloses the Relief Green Seeks . . . . 10

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Certificate ofService . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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INDEX OF AUTHORITIES CasesBaze v. Rees,

553 U.S. 35 (2008) ............................................... 5-7 Callins v. Collins,

510 U.S. 1141 (1994) ............................................... 4 Ex parte Luna,

24 S.W.3d 606 (Tex. App.-Fort Worth 2000, no pet.) ..................... 7 Farmer v. Brennan,

511 U.S. 825 (1994) ................................................ 6 Furman v. Georgia,

408 U.S. 238 (1972) (per curiam) ...................................... 5 Gideon v. Wainwright,

372 U.S. 335 (1963) ................................................ 2 Gregg v. Georgia,

428 U.S. 153 (1976) ......................................... 3, 5, 7, 13 Herrera v. Collins,

506 U.S. 390 (1993) ...................................... 2, 7-9, 11, 13 House v. Bell,

547 U.S. 518 (2006) ........................................... 7-9, 13 In re Winship,

397 U.S. 358 (1970) ................................................ 2 Jurek v. Texas,

428 U.S. 262 (1976) ................................................ 5 Paredes v. State,

129 S.W.3d 530 (Tex. Crim. App. 2004) ............................ 10, 11 v


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Proffitt v. Florida, 428 U.S. 242 (1976) ................................................ 5 Rachal v. State, 917 S.W.2d 799 (Tex. Crim. App. 1996) ............................... 11 Roberts v. Louisiana, 428 U.S. 325 (1976) ................................................ 5 Scheanette v. State, 144 S.W.3d 503 (Tex. Crim. App. 2004) ............................ 10, 11 Strickland v. Washington,

466 U.S. 668 (1984) ................................................ 2 Woodson v. North Carolina, 428 U.S. 280 (1976) ................................................ 5

Constitutional Provisions, Statutes and RulesU.S. CONST. amend. V .................................................... 4 U.S. CONST. amend. XIV ................................................. 4 28 U.S.C. 2254 ........................................................ 3 TEX. CODE CRIM. PROC. art. 11.071 .......................................... 3 TEx. CODE CRIM. PROC. art. 37.071, 2(b)(1) ................................. 2 TEx. CODE CRIM. PROC. art. 37.071, 2( e)(1) ................................. 2 TEx. CODE CRIM. PROC. art. 37.071, 2(h) .................................... 2 TEx. PENAL CODE 19.03 ................................................. 2 TEx. R. APP. P. 11(b) ..................................................... 1

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TEx. R. APP. P. 11(c) . "................................................... 1 LA. CODE CRIM. PROC. art. 905-905.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 N.C. GEN. STAT. 15A-2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Other Authorities

State o/Texas ex. rei. Patricia R. Lykos v. The Honorable Kevin Fine, Nos. WR-75,015-01, WR-75,015-02 (Tex. Crim. App. Nov. 29, 2010) . . . . 11, 12 STUART BANNER,

THE DEATH PENALTY: AN AMERICAN HISTORY 121-22 (2002) . . . . . . . . . . . . . . 13

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Nos. WR-75,OI5-01 and WR-75,OI5-0211 t4e

G!oun of G!rimiuul J\ppeuls J\ustiu, we*us IN RE THE STATE OF TEXAS Ex REL. PATRICIA R. LYKOS, Relator,

v.HON. KEVIN FINE, PRESIDING JUDGE,

177TH DISTRICT COURT OF TEXAS,Respondent.

BRIEF OF ATTORNEY GENERAL GREG ABBOTT AS AMICUSCURIAE

To THE HONORABLE COURT OF CRIMINAL APPEALS:Pursuant to Texas Rule of Appellate Procedure 11, Attorney General Greg Abbott

respectfully requests that the Clerk ofthe Texas Court ofCriminal Appeals receive, and thatthe Texas Court of Criminal Appeals consider, this amicus curiae brief as the Courtreconsiders Relator Patricia Lykos's petition for writ ofmandamus and motion for leave tofile a petition for writ ofprohibition.!

1. Attorney General Abbott files this brief on behalf of himself, and no fee has been paid for itspreparation. See TEX. R. APP. P. 11 (b), (c).


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INTRODUCTION AND SUMMARY OF ARGUMENT It is a fundamental legal principle that executing the innocent is inconsistent with the

Constitution. For this reason, convictions and capital sentences are neither sought lightly,nor obtained easily, in Texas. Indeed, the United States Supreme Court has recognized thatthe constitutional protections present in Texas 's capital punishment system "have the effectof ensuring against the risk of convicting an innocent person." See Herrera v. Collins, 506U.S. 390, 398-99, 399-400 (1993).

The State may seek a capital sentence only in cases in which the murder wascommitted with one of nine aggravating factors. TEx. PENAL CODE 19.03 (for example,the murder of a peace officer or a child under the age of six). Defendants are entitled to berepresented by effective counsel. Strickland v. Washington, 466 U.S. 668, 684-85 (1984);Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963). Defendants are presumed innocent andguilt must be established beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361-63(1970). Once convicted, the defendant may not be sentenced to death unless the jurydetermines that there is "a probability that the defendant would commit criminal acts ofviolence that would constitute a continuing threat to society," TEx. CODE CRIM. PROC. art.37.071, 2(b )( 1 , and that there is not a "sufficient mitigating circumstance or circumstancesto warrant that a sentence of life imprisonment without parole rather than a death sentencebe imposed," id. 2(e)(1). A defendant sentenced to death has an automatic appeal to theTexas Court ofCriminal Appeals. Id. 2(h). Ifthe appeal is unsuccessful, state habeas, see

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id. art. 11.071, and federal habeas, see 28 U.S.C. 2254, are available to ensure that the defendant was afforded due process at trial. In this way, Texas's criminal justice system reserves the death penalty for a narrow category of the most serious crimes and limits its imposition to those whose culpability makes them the most deserving of execution. See

, Gregg v. Georgia, 428 U.S. 153, 187 (1976) ("[Capital punishment] is an extreme sanction, suitable to the most extreme of crimes.")

Real Party in Interest John Green seeks to subvert this entire systemofcriminal justiceby asking the district court to preclude the State ofTexas from trying him for capital murder.Specifically, Green filed a pre-trial motion asking the district court to declare Article 37.071, 2 of the Texas Code ofCriminal Procedure unconstitutional because, according to Green,"its application has created a substantial risk that innocent people have been, and will be,convicted and executed." Amended Motion to Declare Article 37 .071, 2 ofthe Texas CodeofCriminal Procedure Unconstitutional as Applied at 1 (hereafter "Amended Motion"); id.at 76-77. Green's motion should be denied for three principal reasons: First, granting Greenthe relief he requests would have the effect of declaring the death penalty itselfunconstitutional in Texas. Doing so would put the district court at odds with the text of theUnited States Constitution and more than 200 years of United States Supreme Courtprecedent.2 Second, because Green asserts an actual-innocence claim based nearly

2. Green states that he is not arguing that the death penalty is always unconstitutional, but rather thatit is Texas' s specific capital procedure that is too unreliable. See Amended Motion at 5 n.1. Green 's motionbelies this assertion, because (1) the practices he challenges are not unique to the Texas statute-indeed theyare not even found within the challenged statute, and (2) Green relies heavily on evidence and witness

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exclusively on evidence of the innocence and the purported innocence of other defendants,rather than on evidence ofGreen's own actual innocence, his claim is foreclosed by SupremeCourt precedent. And third, this Court's precedent forecloses Green from asserting a pretrial Eighth Amendment claim based on the purported innocence of others.

ARGUMENT

I. THE RELIEF GREEN SEEKS Is INCONSISTENT WITH THE TEXT OF THE UNITEDSTATES CONSTITUTION AND UNITED STATES SUPREME COURT PRECEDENTHOLDING THAT CAPITAL PUNISHMENT Is CONSTITUTIONAL.No fewer than four provisions of the United States Constitution specifically provide

for the imposition of capital punishment. U.S. CONST. amend. V ("No person shall be heldto answer for a capital, or otherwise infamous crime, unless on a presentment or indictmentof a Grand Jury"); id. ("nor shall any person be subject for the same offence to be twice putin jeopardy of life or limb"); id. ("nor be deprived of life, liberty, or property without dueprocess oflaw"); id. amend. XIV ("nor shall any State deprive any person ofl ife, liberty, orproperty, without due process oflaw"). Ajortiori, capital punishment is constitutional. SeeCallins v. Collins, 510 U.S. 1141, 1141 (1994) (Scalia, J., concurring in the denial of the

testimony related to cases in other jurisdictions. For example, Green asserts that five factors "produce a riskofwrongful conviction . . . peculiar to capital cases." [d. at 19. Green's factors are: "crime'clearance' ratesand pressure on the police, publicity, death qualification of prospective jurors, fear of the death penalty indefendants and their defense teams, and the tendency of capital juries to consider punishment prior todetermining guilt." [d. at 19, 19-28. These factors are not particular to Texas, nor are they related in anyway to the challenged statute. Additionally, Green's purported evidence of exonerations comes, not onlyfrom cases in which the capital sentences were obtained under Article 37.071, but from national studies andcases arising in other States. See, e.g., id. at 6-16. And Green relies on an American Law Instituteconclusion that "we cannot devise a death penalty system that will ensure . . . that innocent people will notbe executed." [d. at 17. In sum, Green's motion cannot credibly be deemed as merely a challenge to Article37.071 as it will be applied to him.

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petition for a writ ofcertiorari) (The Fifth Amendment "clearly permits the death penalty tobe imposed, and establishes beyond doubt that the death penalty is not one ofthe 'cruel andunusual punishments' prohibited by the Eighth Amendment."). Accordingly, the UnitedStates Supreme Court has repeatedly and emphatically rejected claims that States arecategorically precluded from trying defendants for capital crimes and carrying out lawfullyimposed capital sentences.3 And those decisions are entitled to the district court' s obedienceand respect.

The Supreme Court recently declared, yet again, that the constitutionality of capitalpunishment is settled: "We begin with the principle, settled by Gregg, that capitalpunishment is constitutional." Raze v. Rees, 553 U.S. 35, 47 (2008); see also Gregg v.Georgia, 428 U.S. 153, 169, 177-80, 187 (1976). And because capital punishment isconstitutional, "[i]t necessarily follows that there must be a means ofcarrying it out." Raze,553 U.S. at 47.4 Any challenge to Texas's capital punishment statute that would have the

3. In Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), the Supreme Court found that theapplication ofcapital punishment statutes in Georgia and Texas violated the Eighth Amendment. Critically,only two members of the Court would have held that the death penalty was unconstitutional per se. See id.at 305 (Brennan, J., concurring); id. at 358-59 (Marshall, l , concurring). Following Furman, States set outto revise their capital sentencing procedures to comply with the Supreme Court 's opinions. Four years later,the Supreme Court reviewed five States ' revised statutes. Three statutes, including Texas's , were upheld.Gregg, 428 U.S. at 207; Proffitt v. Florida, 428 U.S. 242, 259-60 (1976); Jurek v. Texas, 428 U.S. 262, 27677 (1976). Two statutes were struck down, Woodson v. North Carolina, 428 U.S. 280, 305 (1976); Robertsv. Louisiana, 428 U.S. 325, 336 (1976), but both Louisiana and North Carolina have since enacted capitalpunishment statutes that remain in use, see LA. CODE CRIM. PROC. art. 905-905.9; N.C. GEN. STAT. 15A2000.

4. In Baze, the Supreme Court upheld the three-drug lethal injection protocol that is used inKentucky (and that is substantially similar to the three-drug protocols used in nearly all capital punishmentjurisdictions in the United States). Baze, 553 U.S. at 62-63.

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effect of banning the death penalty thus fails at the outset. Because the effect of grantingGreen's motion on his asserted grounds would be to eliminate capital punishment in Texas,Green cannot prevail.

Moreover, in Baze, the Supreme Court provided a two-part test for EighthAmendment challenges to methods of execution that is also instructive here. First, thechallenged procedure must create "'a substantial risk of serious harm,' an 'objectivelyintolerable risk of harm' that prevents [the state officials] from pleading that they were'SUbjectively blameless for purposes of the Eighth Amendment. " Id. at 50 (quoting Farmerv. Brennan, 511 U.S. 825, 842, 846, 846 n.9 (1994)). Second, even if the challenger canshow that a substantial risk ofharm exists, to prevail he must present an alternative methodthat is "feasible, readily implemented, and in fact significantly reduce[s] a substantial risk [ofharm]." Id. at 52. One cannot demonstrate an Eighth Amendment violation "merely byshowing a slightly or marginally safer alternative." Id. at 51. Nor is it sufficient to suggestan alternative that has never been successfully implemented in a capital-punishmentjurisdiction. Id. at 57.

In this context, Green's challenge fails on a number of fronts. He cannot show thatthere is a substantial risk that he is an innocent man that will be executed when he relies onlyon evidence of the innocence or purported innocence of other defendants. Moreover, hisreliance on "factors" that are wholly outside Texas's statutory framework-for example,publicity in some capital cases, Amended Motion at 21, and fear of the death penalty in

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defendants and defense counsel, id. at 26-cannot demonstrate that the challenged statutecreates a "substantial risk ofserious harm" in violation ofthe Eighth Amendment,Baze, 553U.S. at 49-50. Finally, Green makes no attempt to provide an alternative to Article 37.071that he submits is "feasible, readily implemented, and [would] in fact significantly reduce"his perceived substantial risk of harm. Id. at 52.

The Eighth Amendment permits the States to impose capital punishment. Noprovision of Texas's current capital sentencing statute has been invalidated by either theUnited States Supreme Court or this Court. Article 37.071 is therefore presumedconstitutional, see Gregg, 428 U.S. at 175 Goint opinion ofStewart, Powell, and Stevens, JJ.)("[I]n assessing a punishment selected by a democratically elected legislature against theconstitutional measure, we presume its validity."), and Green cannot preclude the State ofTexas from trying him for capital murder. sII. GREEN'S ATIEMPT To EVADE THE SUPREME COURT'S REQUIREMENT THAT

ACTUAL-INNOCENCE CLAIMS MUST BE FOUNDED ON EVIDENCE OF THECLAIMANT'S OWN ACTUAL INNOCENCE SHOULD BE REJECTED.Twice in recent years, the Supreme Court has been asked to address Eighth

Amendment claims based upon actual innocence. See House v. Bell, 547 U.S. 518, 554-55(2006); Herrera, 506 U.S. at 400-01,416-17. The Supreme Court made it clear that such a

S. Challenges to the constitutionality ofa criminal statute under which a defendant will be sentencedare premature prior to trial. See Ex parte Luna, 24 S.W.3d 606, 607-08 (Tex. App.-Fort Worth 2000, nopet.) (affirming the denial of a pre-trial writ of habeas corpus, and explaining that "[a]t this stage of theadversarial proceeding against Appellant, we do not know whether he will be convicted of the offenses ofwhich he is charged. I fAppellant is not convicted, the question of whether the application [of the statute]is unconstitutional as to him would be moot, and our opinion would be merely advisory").

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claim, at a minimum, must (1) satisfy an "extraordinarily high" standard, and (2) be basedupon the claimant's evidence of his own actual innocence. Herrera, 506 U.S. at 417; seealso House, 547 U.S. at 555. Green attempts to evade this standard entirely. Green's motionasserts an Eighth Amendment claim based on (1) evidence of the innocence and purportedinnocence of others, see Amended Motion at 6-10, 73-76, and (2) the possibility that aninnocent person might be convicted and sentenced to death, id. at 7-54, 73-76. SupremeCourt precedent forecloses that claim.

In Herrera, the Supreme Court assumed, arguendo, that "in a capital case a trulypersuasive demonstration of actual innocence' made after trial would render the executionof a defendant unconstitutional, and warrant federal habeas relief if there were no stateavenue open to process such a claim." Herrera, 506 U.S. at 417. The Supreme Courtexplained that "the threshold showing for such an assumed right would necessarily beextraordinarily high." Id. at 417.

Herrera's proffered new evidence consisted of affidavits obtained eight years afterHerrera's trial, all but one ofwhich consisted ofhearsay. Id. at 417-18. The affidavits werealso inconsistent, and thus "fail [ed] to provide a convincing account ofwhat took place onthe night [of the murders]." Id. at 418. The Court acknowledged that the affidavits had"probative value" and could have been considered by the jury had they been offered at trialbut held that "this showing of innocence falls far short of that which would have to be made

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in order to trigger the sort of constitutional claim which we have assumed, arguendo, toexist." Id. at418-19.

In House, the Court reviewed a similar actual-innocence claim. House, 547 U.S. at555. But the new evidence developed by House during his post-conviction proceeding wasmore substantial: DNA evidence established that the semen found on the victim's clothingcame from her husband, not from House, id. at 540; forensic evidence showed that bloodstains on House's clothing came from the autopsy samples of the victim's blood, not fromher body at the time of her death, id. at 541-48; and evidence that the victim's husband hada history ofabuse, had the opportunity to commit the crime, acted suspiciously in attemptingto construct an alibi, and later confessed to the murder to two witnesses, id. at 548-52. TheCourt reserved the question whether a freestanding actual-innocence claim exists. Id. at 555.It did so because even though House's evidence "cast considerable doubt on his guilt," itnevertheless was insufficient to satisfy "whatever burden a hypothetical freestandinginnocence claim would require." Id. And once again, the Court admonished that thestandard would be "extraordinarily high." Id. (quotation omitted).

From Herrera and House, it is clear that an Eighth Amendment actual-innocenceclaim must be founded upon a demonstration of the claimant's own actual innocence.Green's motion seeks to subvert this requirement. Green has asked the district court todeclare Article 37.071, 2 of the Code ofCriminal Procedure unconstitutional based onlyon "a substantial risk"-.i.e., a sufficient possibility-that an innocent person will be

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convicted. Amended Motion at 76-77. In support of this claim, Green cites, inter alia:death-row exonerations nationwide since 1976, id. at 6-7; commentators' beliefs that theseexonerations "raise a strong inference that our imperfect system of criminal justice hasallowed innocent people to be executed," id. at 7, 7-10; government officials who haveacknowledged that a risk ofexecuting the innocent exists, id. at 10-16; and studies ofcapitaljuries and jury pools, id. at 21-30, 49-54.

In essence, Green has asked the district court to permit an actual-innocence claimwithout any demonstration of the claimant's own actual innocence. Green's claim plainlyfails the Supreme Court's requirementofan individualized actual-innocence demonstration.III. THIS COURT'S PRECEDENT LIKEWISE FORECLOSES THE RELIEF GREEN SEEKS.

This Court has made clear that in challenging the constitutionality ofTexas's capitalpunishment statute, evidence regarding the possible innocence ofanother party who was triedand convicted under the statute is not relevant. In Paredes v. State, 129 S.W.3d 530 (Tex.Crim. App. 2004), the appellant argued that Texas's death penalty statute violated dueprocess because of the risk of executing innocent persons. This Court rejected that claim,explaining that the risk that another possibly innocent person might be executed does notviolate the appellant's due-process rights. Id. at 540. Likewise, in Scheanette v. State, theCourt rejected a claim that the capital-punishment statute violated the Eighth Amendment"because it leads the State to execute an unacceptable number ofinnocent defendants." 144S.W.3d 503,505-06 (Tex. Crim. App. 2004) (internal quotation omitted). The Court found

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that appellant failed "to demonstrate that his due process rights or his right to be free fromcruel and unusual punishment have been violated by application of our death-penaltystatute." ld. at 506 (citing Herrera, 506 U.S. 390).6 Relatedly, the Court has held thatscientific evidence unrelated to the particular defendant's guilt is irrelevant and inadmissible.Rachalv. State, 917 S.W.2d 799,816 (Tex. Crim. App. 1996).

This Court has pending before it the State ofTexas's petition for writ ofmandamusand motion for leave to file a petition for a writ of prohibition. The State's filings wereinitially denied as "premature," because the Court could not yet know whether relevantevidence would be presented. Order at 2, State o/Texas ex. rei. Patricia R. Lykos v. TheHonorable Kevin Fine, Nos. WR-75,015-01, WR-75,015-02 (Tex. Crim. App. Nov. 29,2010). Critically, the Court explained that ''while the 'execution ofan innocent person wouldviolate due process, the risk that another person who may be innocent will be executed doesnot violate [Green's] due process rights.'" ld. (quoting Paredes, 129 S.W.3d at 540). Andthe Court specifically cautioned Green and Judge Fine that "it appears that much of the'evidence' [Judge Fine] seems to want presented at this hearing is not relevant to the questionat issue." ld.

6. It must be acknowledged that the challengers in both Paredes and Schaenette failed to even claimthat they were innocent. Green, on the other hand, maintains that he is innocent. Nevertheless, Green baseshis Eighth Amendment claim on the evidence of others' innocence rather than his own. This Cour t'srejection in Paredes and Schaenette ofclaims based upon evidence of the possible innocence ofothers is noless a barrier to Green's claim merely because Green has stated that he is innocent.

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It is now clear that Green bases his Eighth Amendment claim on evidence of theinnocence and the purported innocence ofothers. See supra part II. One additional exampledemonstrating this point bears mention: after the Court issued its November 29 order, asubpoena was issued commanding Paul Maldonado, the State Fire Marshall, to appear inJudge Fine's court room as a witness in the evidentiary hearing. Maldonado was not presentat the scene of the crime alleged in this case, and he was not involved in any way with theinvestigation leading to the indictment. Nevertheless, in a letter to the Harris County DistrictAttorney's office, Green's counsel indicated that Green intended to call Maldonado as awitness. Request for Reconsideration on Court 's Own Initiative Pursuant to Rule 72.2 ofThis Court's Denial ofWrit ofProhibition and Writ ofMandamus at Exh. C, State o/Texasex. reI. PatriciaR. Lykosv. The Honorable Kevin Fine, Nos. WR-75,015-01, WR-75,015-02(hereafter "Request for Reconsideration").

As the State Fire Marshall, Maldonado is regularly called to testify in arson cases. ButGreen has been charged with capital murder in a case in which the complainant was shot witha firearm. It is undisputed that Maldonado has not conducted an investigation in Green'scase and has no personal know ledge ofany fact relevant to Green's guilt or innocence. Thisis precisely the type of evidence that the Court 's November 29,2010, order cautioned was"not relevant to the question at issue." Order at 2, State o/Texas ex. reI. Patricia R. Lykosv. The Honorable Kevin Fine, Nos. WR-75,015-01, WR-75 ,0 15-02 (Tex. Crim. App. Nov.29,2010). Green's proposed witness list designates the subject about which each witness

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intends to testify at the evidentiary hearing. See Request for Reconsideration at Exhibit C.The list is replete with witnesses who intend to testify about other capital defendants, generalstatistics, and studies, rather than about Green or the crime that he is charged withcommitting. Id. UnderParedes, Scheanette, and Rachal, this evidence cannot form the basisof an Eighth Amendment claim.

***Green's argument that innocent people have been and might continue to be executed

by mistake is not new. Opponents of capital punishment in the United States have beenmaking the argument that this possibility justifies the abolition ofthe death penalty since asearly as the mid-nineteenth century. STUART BANNER, THE DEATH PENALTY: AN AMERICANHISTORY 121-22 (2002). The Supreme Court has considered, and rejected, the argument thatcapital punishment is unconstitutional because it "entai1[s] both mistake and caprice," andthat "some people will be killed wrongly." Br. for Petitioner at 10a, Gregg v. Georgia, 428U.S. 153 (1976). Instead, to assert an actual-innocence claim under the Eighth Amendment,the claimant must present evidence demonstrating his own actual innocence. House, 547U.S. at 555; Herrera, 506 U.S. at 417.

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CONCLUSION Green's attempt to assert in a pre-trial motion an Eighth Amendment actual-innocence

claim based upon (1) evidence of other defendants' cases, and (2) the possibility that aninnocent person will be executed should be rejected, because it is foreclosed by the precedentof the United States Supreme Court and this Court.

Respectfully submitted,GREG ABBOTTAttorney General ofTexasDANIEL T. HODGEFirst Assistant Attorney GeneralERIC J. R. NICHOLSDeputy Attorney General for Criminal JusticeJONA THAN F. MITCHELLSolicitor General

ADAM W. ASTONAssistant Solicitor GeneralState Bar No. 24045423OFFICE OF THE ATTORNEY GENERALP. O. Box 12548 (MC 059)Austin, Texas 78711-2548[Tel.] (512) 936-0596[Fax] (512) 474-2697COUNSEL FOR AMICUS CURIAE

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CERTIFICATE OF SERVICE I certify that on December 21, 2010, I served a true and correct copy of this amicus

brief by U.S. Postal Service Express Mail, on the following counsel of record in thisproceeding:

Patricia R. LykosAlan CurryHARRIs COUNTY DISTRICT ATTORNEY'S OFFICE1201 Franklin Street, Suite 600Houston, Texas 77002RELATORStanley G. SchneiderSCHNEIDER & McKINNEY, P.C.The Lyric Center440 Louisiana, Suite 800Houston, Texas 77002COUNSEL FOR RESPONDENTIohnKeiman Richard Burr917 Franklin Street, Suite 550 BURR& WELCH, P .C .Houston, Texas 77002 2307 Union Street

Houston, Texas 77007Robert LoperLOPER LAW111 West 15th StreetHouston, Texas 77008COUNSEL FOR REAL PARTY IN INTEREST

Adam W. Aston

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Green AG Amicus Brief in Favor of Mandamus

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