1

1 REPORTER'S RECORD

2 Volume 1 of 1 Volume

3 Trial Court Cause No. 1170853

6 THE STATE OF TEXAS IN THE DISTRICT COURT OF

7 VS. HARRIS COUNTY, T E X A S

8 JOHN EDWARD GREEN, JR. 177TH JUDICIAL DISTRICT

10

11 MOTION HEARING

12

13

14 On the 5th day of March, 2010, the

15 following proceedings came on to be heard in the

16 above-entitled and numbered cause before the

17 Honorable Kevin Fine, Judge presiding, held in

18 Houston, Harris County, Texas.

19 Proceedings reported by computerized

20 stenotype machine.

21
22
Linda Hacker, Texas CSR #4167
23 Official Court Reporter - 177th District Court
1201 Franklin, 19th Floor
24 Houston, Texas 77002
713-755-6332
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1 A P PEA RAN C E S
2

3 Attorneys for the State:

4 Mr. William Exley, Jr.

SBCT No. 24002071
5 Ms. Kari Allen
SBCT No. 17881650
6 Assistant District Attorneys
1201 Franklin, Suite 600
7 Houston, Texas 77002
Phone: 713-755-5800
8

9 Attorneys for the Defendant:

10 Mr. Robert Loper
Attorney at Law
11 SBOT No. 12562300
111 W. 15th Street
12 Houston, Texas 77008
Phone: 713-880-9000
13
14 Mr. John Patrick "Casey" Keirnan
Attorney at Law
15 SBCT No. 11184700
917 Franklin, Suite 550
16 Houston, Texas 77002
Phone: 713-236-9700
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1 PRO C E E DIN G S
2 March 5, 2010
3 THE COURT: All right. Court calls

4 Cause No. 1170853, styled the State of Texas versus

5 John E. Green.
6 At the conclusion of yesterday's
7 hearing wherein I granted a portion of the
8 defendant's or Defense motion to hold that Texas

9 Code of Criminal Procedure Article 37 -- in the

10 title it reads 01 which should read 071 -- is
11 unconstitutional. Counsel for the Defense and the
12 State asked that we be able to reconvene this

13 morning in order to present either authority and/or

14 a request for findings. So

15 MR. KEIRNAN: May I address the
16 Court? I know I made that request, Your Honor.
17 The State, Mr. Exley, has given me

18 two motions. One is a Motion to Reconsider and the

19 other one is the Staters Motion to Proceed Under
20 Proceed to Trial Under the Texas Code of Criminal

21 Procedure Article 37.071. Your Honor, we've just

22 been handed these motions and we've done some
23 research overnight about the way that we could
24 proceed or the State may be able to proceed in
25 appealing this.
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1 It's our position that at this time

2 the State doesn't have a right to appeal under this,

3 but we're asking that the Court give us till next

4 Wednesday to consider these motions and respond to

5 them in writing what our position is, about whether,

6 one, whether the Court should reconsider the ruling

7 that it made yesterday and, two, whether the state

8 would have the right to proceed or the Court has the
9 authority to order the State to proceed to prosecute
10 him if they don't have the right to appeal under
11 37.01 -- 071 of the Code of Criminal Procedure. And
12 we're asking some time to respond in writing to

13 that, Judge. We were not able to get that and

14 incorporate these two motions for a response this
15 morning. So--
16 THE COURT: All right.
17 MR. KEIRNAN: -- we're asking for
18 some time, maybe Wednesday of next week.
19 THE COURT: Let me pose a question
20 to you.
21 Would the State not have the right
22 to seek a Writ of Mandamus as opposed to a direct
23 appeal in that mandamus?
24 MR. KEIRNAN: Well, if --
25 THE COURT: The issue in the
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1 mandamus or a decision in the mandamus thereafter

2 could be appealed.
3 MR. KEIRNAN: Yes, sir.
4 THE COURT: Basically accomplishing

5 the same -- same thing.

6 MR. KEIRNAN: Sounds to me like

7 that's what might happen if the Court were to

8 deny -- deny the State's motion to reconsider and
9 then, in fact, deny their motion to proceed to try
10 Mr. Green under the death penalty statute in light

11 of your ruling they would have and an appellate

12 lawyer I'm not, but they would have the right to
13 file a Writ of Mandamus and, of course, kind of

14 accomplishes the same thing.

15 But I'm not in the position,
16 neither is Mr. Loper. We -- our appellate division
17 is scattered across the State of Texas and we've had
18 them call us, different people call us and that's --

19 that's what we have to do, to think to make sure

20 that we're at least telling the Court our position

21 on behalf of Mr. Green and what we think how the

22 Court should proceed regarding these two motions and
23 what Mr. Green's rights are considering the Court's
24 ruling yesterday.
25 THE COURT: All right. How much
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1 time do you need, Mr. Keirnan?

2 MR. KEIRNAN: Wednesday of next

3 week.
4 THE COURT: State, any response?
5 MS. ALLEN: No, sir.

6 THE COURT: All right. Is that

7 okay?
8 MS. ALLEN: Yes, sir.
9 MR. KEIRNAN: I don't think that

10 affects anybody's appellate rights regarding your

11 ruling yesterday.
12 THE COURT: All right. I will

13 withhold a ruling on the State's motions until next

14 Wednesday. We will reconvene at that time.

15 I do, however, want to clarify
16 because this was a mUlti-point motion, I want to
17 clarify my ruling on the motion and I want to also

18 have -- give the State and the Defense an

19 opportunity to present any authority that they may

20 have come up with since my ruling yesterday
21 afternoon until today or this morning.
22 My holding and with regard to the
23 motion to hold Article 37.07 unconstitutional -- and
24 Article 37.07 for clarification is the portion of
25 the Texas Code of Criminal Procedure which sets
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1 forth the manner in which the State is to proceed in

2 procedurally in seeking and obtaining a sentence of

3 death.
4 MS. ALLEN: Your Honor, isn't it

5 37.0717

6 THE COURT: 37.071. Did I misstate

7 that?
8 MS. ALLEN: I thought you -- I
9 heard 37.07.

10 THE COURT: Okay. I'm sorry.

11 My --

12 MS. ALLEN: I just wanted to make

13 sure.

14 THE COURT: 37.071, that is

15 correct.

16 My holding with regard to the

17 Defense motion is limited only to the due process
18 claim that 37.071 has resulted in the execution of
19 innocent people and/or has the potential to result
20 in the execution of innocent persons.
21 Unless one side or the other can
22 point me to a case or any authority, to my
23 knowledge -- and I have been unable to find any case
24 to guide me -- that to my knowledge there are no
25 guiding cases to point this Court in any particular
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1 direction. There is no precedent to guide me in

2 resolving this particular issue. As far as I know

3 it is an issue of first impression.

4 So to say that I am ignoring
5 precedent or legislating from the Bench I think is

6 slightly overreaching. All I can do, as this issue

7 has been raised, is go by what guidance there is;

8 and the only guidance that I have found is that

9 provided by the United states Supreme Court that

10 places a duty on trial courts to act as gatekeepers

11 in interpreting the due process claim in light of

12 evolving standards of fairness and ordered liberty.

13 Clearly I have been charged with

14 that duty. So I am now charged with interpreting

15 such evolving standards and I'm called upon to

16 assess the current state of our society's standards

17 of fairness and ordered liberty in light of what we

18 as a society now know. And that is that we execute

19 innocent people. This is supported by the

20 exoneration of individuals off of America's death

21 rows.

22 I repeat again that the vast

23 majority of those cases involve DNA evidence. What

24 of those cases that do not involve DNA evidence? To

25 my knowledge, there has been only one retrial of a
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1 deceased individual who has actually been executed.

2 That trial took place in Travis County in Judge

3 Charlie Baird's court wherein it was found that the

4 deceased was, in fact, innocent and thereafter

5 executed by the State of Texas.
6 Whether it's one person or 10,000,

7 I don't believe society is willing to, what is known

8 as in literature, to remain under the cloak of the

9 willing suspension of disbelief. That's what we
10 must engage in if we're going to say we've never

11 executed an innocent person in light of what the

12 Innocence Project has uncovered and in light of what

13 we now know of the value of eyewitness
14 identification and in light of the fact that there
15 are numerous cases, whether a death case or not,
16 where there is no DNA evidence to go back and test
17 in order to exonerate the individual.
18 This current awareness in our
19 society necessitates the question of whether we as a
20 society, knowing that we execute innocent persons,
21 desire to continue to ignore that reality.
22 Now, I say this with a bit of
23 caution. It is perhaps easy to ignore that reality
24 when the individual sitting at the defense counsel
25 comes from lower income neighborhoods, is a
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1 minority, or has a criminal history. I know that

2 several feel that, well, if they're not guilty of
3 the capital murder, they're guilty of something so

4 it's okay. I don't think society is of that frame

5 of mind any longer.
6 Our Constitution affords
7 protections to all citizens, not just those sitting
8 at counsel table accused of a crime, and I shudder

9 to think and I do not believe our society takes a

10 blind eye to themselves as individuals and those
11 close to them and, therefore, condone the execution
12 of innocent persons from low income, predominantly

13 minority citizenry. I don't think society is

14 willing to do that anymore. I don't think society
15 is willing to engage in the willing suspension of

16 disbelief that we do not and could never execute an

17 innocent person.
18 And because the Constitution
19 protects us all, the question to be asked and
20 answered in resolving this issue is whether we as a

21 society we have to look at ourselves. Are we

22 willing to allow our sons, our daughters, our
23 brothers, our sisters, our friends to be the
24 sacrificial lambs should they be wrongly accused of
25 a capital offense and then be executed?
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1 I don't think there is -- there may

2 be some people out there that would say they're

3 willing to let their son die so that the State of

4 Texas can have a death penalty, but I think those

5 persons would be few and far between.

6 I find that the greater majority of

7 our society would not be 50 willing to allow the

B execution of their friends and family or to be the

9 sacrificial lambs so that the State of Texas can

10 have a death penalty. I think that the changing and

11 evolving standards of fairness and ordered liberty

12 are such that in light of the fact that we have

13 overwhelming evidence that we are, in fact,

14 executing innocent persons, I don't believe that our

15 evolving standards are at the point where we're

16 willing to sacrifice even those that have criminal

17 records and even those that come from the Fifth Ward

18 or the Ninth Ward of New Orleans or the Fourth Ward

19 or the Third Ward of Houston.

20 I think society has begun to take a

21 look within itself, and I think the proper question

22 to be asked is just that. Are we willing to let our

23 own be the sacrificial lambs? I don't think society
24 is willing to do that.
25 MS. ALLEN: Your Honor --
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1 THE COURT: Again -- hold on.

2 MS. ALLEN: Sorry.

3 THE COURT: Again, other than the

4 guiding principles of the United States Supreme

5 Court charging me with the duty to act as a

6 gatekeeper and the fact that I know of and have not

7 been presented a single case on this particular

8 issue, that in weighing what I believe to be those

9 evolving standards -- in other words, changing

10 standards -- my conclusion is that those changing

11 standards now say that executing or having a death

12 penalty, specifically Article 37.071, is, in fact,

13 unconstitutional.

14 I am more than willing to hear from

15 either side with regard to any authority on this

16 particular issue. Any other issue raised in this

17 motion is overruled. My rUling is limited solely to

18 the due process claim of the execution of innocent

19 individuals and not having to weigh the changing

20 and/or evolving standards of society's ideas of

21 fairness and liberty.

22 MS. ALLEN: May I make a brief

23 response, Your Honor?

24 THE COURT: You may, yes, ma'am.

25 MS. ALLEN: Thank you.

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1 I just wanted to assert to you, the

2 Court, and to defense counsel and everyone else that
3 neither Mr. Exley, nor I, nor District Attorney
4 Patricia Lykos would knowingly execute an innocent

5 man.
6 THE COURT: And let me state this
7 for the record, and I should have said this earlier.
8 There was -- I just want to make it

9 perfectly clear. The reason I want to make it clear

10 that this is the only issue I'm ruling upon is
11 because I am not -- the greater portion of this
12 motion addresses the manner in which -- the manner
13 in which a District Attorney's Office decides

14 whether a case is death eligible.

15 I have more confidence in this
16 District Attorney's Office than -- well, let me
17 rephrase that.

18 I have full confidence in this

19 District Attorney's Office, specifically our current
20 District Attorney, Judge Pat Lykos, and Jim Leitner
21 and Roger Bridgewater, all the way down to Ms. Allen
22 and Mr. Exley, do not take death penalties lightly.
23 They are seriously considered. A great deal of time
24 is given to the decision to seek death; and, in
25 fact, in this case, it wasn't until recently the
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1 state decided to seek death, and by recently, I mean

2 within the last week or two, and this case has been
3 pending for a very, very long time. And I do not
4 question Judge Lykos' decision to seek death. I do
5 not question Ms. Allen's nor Mr. Exley's decision to

6 seek death. They are charged with and we must have

7 confidence in our prosecutors. They are charged
8 with two duties, not just one. That is to uphold
9 the Constitution of the United States and the State
10 of Texas and, further, they must see and have sworn
11 to see that justice is done.
12 I believe this District Attorney's
13 Office does just that. I can't speak for times

14 past, and I won't go there, but certainly this

15 District Attorney's Office, there's no question in
16 my mind does not take these things lightly -- do not
17 take these things lightly, and that's why I have

18 overruled the Defense -- the Defense's motion in

19 regards to any argument that the decision-making
20 process is arbitrary, capricious or in any way a
21 violation of the Constitution.
22 I hope that clarifies that point.
23 MS. ALLEN: Thank you, Your Honor.
24 THE COURT: You're quite welcome.
25 Anything from the Defense?
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1 MR. KEIRNAN: Thank you for your

2 ruling, Your Honor.

3 THE COURT: All right. We will

4 reconvene next Wednesday at 10:00 a.m. at which time

5 1 1 11 make a ruling on the State's motions, Motion to

6 Proceed to Trial Under Texas Code of Criminal

7 Procedure Article 37.01 -- 37.071. I did it again,

8 didn't I, Ms. Allen -- and the State's Motion to

9 Reconsider My Ruling.

10 MS. ALLEN: Thank you, Your Honor.

11 THE COURT: All right.

12 MR. LOPER: Thank you, Judge.

13 THE COURT: We are adjourned in

14 this case.

15 (Proceedings adjourned.)

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1 THE STATE OF TEXAS

2 COUNTY OF HARRIS

3
I, LINDA HACKER, Official Court
4 Reporter in and for the 177th District Court of
Harris County, Texas, do hereby certify that the
5 above and foregoing contains a true and correct
transcription of all portions of evidence and
6 other proceedings requested in writing by counsel
for the parties to be included in this volume of
7 the Reporter's Record, in the above-styled and
numbered cause, all of which occurred in open
8 Court or in Chambers and were reported by me.
9
I further certify that this Reporter's
10 Record of the proceedings truly and correctly
reflects the exhibits, if any, admitted by the
11 respective parties.
12
I further certify that the total cost for
13 the preparation of this Reporter's Record is
$ and was paid or will be paid by
14
15
WITNESS MY OFFICIAL HAND on this the
16 day of _______________ , 2010.

17
18
LINDA HACKER, CSR No. 4167
19 Expiration Date: 12-31-10
Official Court Reporter
20 177th District Court
Harris County, Texas
21 1201 Franklin, 19th Floor
Houston, Texas 77002
22 713-755-6332
23
24

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