Nos.

WR-75,015-01 and WR-75,015-02

lin tlJe

<!tour! of <!triminal Appeals

Austini we*as

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 ABBOTT ADAM W. ASTON

Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
ERIC J. R. NICHOLS
Deputy Attorney General
for Criminal Justice
Assistant Solicitor General
State Bar No. 24045423
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
[TeL] (512) 936-0596
[Fax] (512) 474-2697

JONATHAN F. MITCHELL COUNSEL FOR AMICUS CURIAE

Solicitor General
 IDENTITY OF PARTIES AND COUNSEL

Complainant, Victim, or Aggrieved Party:

Tina Vo

Relator:

Patricia R. Lykos, District Attorney of Harris County, Texas

Counselfor Relator:

Patricia R. Lykos
State Bar No. 12716000
Alan Curry
State Bar No. 05263700
Eric Kugler
State Bar No. 00796910
Bill Exley
State Bar No. 24002071
Carolyn Sckerl 'Kari' Allen
State Bar No. 17881650
HARRIs COUNTY DISTRICT ATTORNEY'S OFFICE
1201 Franklin Street, Suite 600
Houston, Texas 77002
[Tel.] (713) 755-5810
[Fax] (713) 755-6865

Respondent:

Hon. Kevin Fine, Presiding Judge, 177th District Court of Texas

Counsel for Respondent:

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

11
Real Party in Interest:

John Edward Green, Jr.

Counselfor Real Party 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

iii
 TABLE OF CONTENTS

Identity of Parties and Counsel ............................................. 11

Index of Authorities ...................................................... 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 of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 15

IV
 INDEX OF AUTHORITIES

Cases

Baze 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

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 Rules

U.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

vi

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

VII
 Nos. WR-75,OI5-01 and WR-75,OI5-02

11« 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 AMICUS CURIAE

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 that

the Texas Court of Criminal Appeals consider, this amicus curiae brief as the Court

reconsiders Relator Patricia Lykos's petition for writ of mandamus and motion for leave to

file a petition for writ of prohibition.!

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

the constitutional protections present in Texas's capital punishment system "have the effect

of ensuring against the risk of convicting an innocent person." See Herrera v. Collins, 506

U.S. 390, 398-99, 399-400 (1993).

The State may seek a capital sentence only in cases in which the murder was

committed 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 be

represented 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 and

guilt 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 jury

determines that there is "a probability that the defendant would commit criminal acts of

violence 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 circumstances

to warrant that a sentence of life imprisonment without parole rather than a death sentence

be imposed," id. § 2(e)(1). A defendant sentenced to death has an automatic appeal to the

Texas Court ofCriminal Appeals. Id. § 2(h). Ifthe appeal is unsuccessful, state habeas, see

 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 system ofcriminal justice

by 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 of Criminal 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 Code

of Criminal 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 Green

the relief he requests would have the effect of declaring the death penalty itself

unconstitutional in Texas. Doing so would put the district court at odds with the text of the

United States Constitution and more than 200 years of United States Supreme Court

precedent. 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 that
it is Texas's specific capital procedure that is too unreliable. See Amended Motion at 5 n.1. Green's motion
belies this assertion, because (1) the practices he challenges are not unique to the Texas statute-indeed they
are not even found within the challenged statute, and (2) Green relies heavily on evidence and witness

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 Supreme

Court precedent. And third, this Court's precedent forecloses Green from asserting a pre­

trial Eighth Amendment claim based on the purported innocence of others.

ARGUMENT

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.

No fewer than four provisions ofthe United States Constitution specifically provide

for the imposition of capital punishment. U.S. CONST. amend. V ("No person shall be held

to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment

of a Grand Jury"); id. ("nor shall any person be subject for the same offence to be twice put

in jeopardy of life or limb"); id. ("nor be deprived of life, liberty, or property without due

process oflaw"); id. amend. XIV ("nor shall any State deprive any person oflife, liberty, or

property, without due process oflaw"). Ajortiori, capital punishment is constitutional. See

Callins 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 risk
ofwrongful conviction ... peculiar to capital cases." [d. at 19. Green's factors are: "crime'clearance' rates
and pressure on the police, publicity, death qualification of prospective jurors, fear of the death penalty in
defendants and their defense teams, and the tendency of capital juries to consider punishment prior to
determining guilt." [d. at 19, 19-28. These factors are not particular to Texas, nor are they related in any
way to the challenged statute. Additionally, Green's purported evidence of exonerations comes, not only
from cases in which the capital sentences were obtained under Article 37.071, but from national studies and
cases arising in other States. See, e.g., id. at 6-16. And Green relies on an American Law Institute
conclusion that "we cannot devise a death penalty system that will ensure ... that innocent people will not
be executed." [d. at 17. In sum, Green's motion cannot credibly be deemed as merely a challenge to Article
37.071 as it will be applied to him.

petition for a writ ofcertiorari) (The Fifth Amendment "clearly permits the death penalty to

be imposed, and establishes beyond doubt that the death penalty is not one ofthe 'cruel and

unusual punishments' prohibited by the Eighth Amendment."). Accordingly, the United

States Supreme Court has repeatedly and emphatically rejected claims that States are

categorically precluded from trying defendants for capital crimes and carrying out lawfully

imposed capital sentences. 3 And those decisions are entitled to the district court's obedience

and respect.

The Supreme Court recently declared, yet again, that the constitutionality of capital

punishment is settled: "We begin with the principle, settled by Gregg, that capital

punishment 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 is

constitutional, "[i]t necessarily follows that there must be a means of carrying 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 the
application 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 out
to 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, 276­
77 (1976). Two statutes were struck down, Woodson v. North Carolina, 428 U.S. 280, 305 (1976); Roberts
v. Louisiana, 428 U.S. 325, 336 (1976), but both Louisiana and North Carolina have since enacted capital
punishment statutes that remain in use, see LA. CODE CRIM. PROC. art. 905-905.9; N.C. GEN. STAT. § 15A­
2000.

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

5
effect of banning the death penalty thus fails at the outset. Because the effect of granting

Green'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 Eighth

Amendment challenges to methods of execution that is also instructive here. First, the

challenged procedure must create "'a substantial risk of serious harm,' an 'objectively

intolerable risk of harm' that prevents [the state officials] from pleading that they were

'SUbjectively blameless for purposes ofthe Eighth Amendment. '" Id. at 50 (quoting Farmer

v. Brennan, 511 U.S. 825, 842, 846, 846 n.9 (1994)). Second, even if the challenger can

show that a substantial risk of harm exists, to prevail he must present an alternative method

that is "feasible, readily implemented, and in fact significantly reduce[ s] a substantial risk [of

harm]." Id. at 52. One cannot demonstrate an Eighth Amendment violation "merely by

showing a slightly or marginally safer alternative." Id. at 51. Nor is it sufficient to suggest

an alternative that has never been successfully implemented in a capital-punishment

jurisdiction. Id. at 57.

In this context, Green's challenge fails on a number of fronts. He cannot show that

there is a substantial risk that he is an innocent man that will be executed when he relies only

on evidence of the innocence or purported innocence of other defendants. Moreover, his

reliance 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

defendants and defense counsel, id. at 26-cannot demonstrate that the challenged statute

creates a "substantial risk ofserious harm" in violation ofthe Eighth Amendment, Baze, 553

U.S. at 49-50. Finally, Green makes no attempt to provide an alternative to Article 37.071

that 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. No

provision of Texas's current capital sentencing statute has been invalidated by either the

United States Supreme Court or this Court. Article 37.071 is therefore presumed

constitutional, 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 the

constitutional measure, we presume its validity."), and Green cannot preclude the State of

Texas from trying him for capital murder. s

II. GREEN'S ATIEMPT 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.

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 sentenced
are premature prior to trial. See Ex parte Luna, 24 S.W.3d 606, 607-08 (Tex. App.-Fort Worth 2000, no
pet.) (affirming the denial of a pre-trial writ of habeas corpus, and explaining that "[a]t this stage of the
adversarial proceeding against Appellant, we do not know whether he will be convicted of the offenses of
which he is charged. If Appellant 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").

7
claim, at a minimum, must (1) satisfy an "extraordinarily high" standard, and (2) be based

upon the claimant's evidence of his own actual innocence. Herrera, 506 U.S. at 417; see

also House, 547 U.S. at 555. Green attempts to evade this standard entirely. Green's motion

asserts an Eighth Amendment claim based on (1) evidence of the innocence and purported

innocence of others, see Amended Motion at 6-10, 73-76, and (2) the possibility that an

innocent person might be convicted and sentenced to death, id. at 7-54, 73-76. Supreme

Court precedent forecloses that claim.

In Herrera, the Supreme Court assumed, arguendo, that "in a capital case a truly

persuasive demonstration of 'actual innocence' made after trial would render the execution

of a defendant unconstitutional, and warrant federal habeas relief if there were no state

avenue open to process such a claim." Herrera, 506 U.S. at 417. The Supreme Court

explained that "the threshold showing for such an assumed right would necessarily be

extraordinarily high." Id. at 417.

Herrera's proffered new evidence consisted of affidavits obtained eight years after

Herrera's trial, all but one of which consisted ofhearsay. Id. at 417-18. The affidavits were

also inconsistent, and thus "fail [ed] to provide a convincing account of what took place on

the 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 trial

but held that "this showing of innocence falls far short ofthat which would have to be made

in order to trigger the sort of constitutional claim which we have assumed, arguendo, to

exist." Id. at418-19.

In House, the Court reviewed a similar actual-innocence claim. House, 547 U.S. at

555. But the new evidence developed by House during his post-conviction proceeding was

more substantial: DNA evidence established that the semen found on the victim's clothing

came from her husband, not from House, id. at 540; forensic evidence showed that blood

stains on House's clothing came from the autopsy samples of the victim's blood, not from

her body at the time of her death, id. at 541-48; and evidence that the victim's husband had

a history ofabuse, had the opportunity to commit the crime, acted suspiciously in attempting

to construct an alibi, and later confessed to the murder to two witnesses, id. at 548-52. The

Court 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," it

nevertheless was insufficient to satisfy "whatever burden a hypothetical freestanding

innocence claim would require." Id. And once again, the Court admonished that the

standard would be "extraordinarily high." Id. (quotation omitted).

From Herrera and House, it is clear that an Eighth Amendment actual-innocence

claim 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 to

declare Article 37.071, § 2 of the Code of Criminal Procedure unconstitutional based only

on "a substantial risk"-.i.e., a sufficient possibility-that an innocent person will be

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 these

exonerations "raise a strong inference that our imperfect system of criminal justice has

allowed innocent people to be executed," id. at 7, 7-10; government officials who have

acknowledged that a risk ofexecuting the innocent exists, id. at 10-16; and studies ofcapital

juries and jury pools, id. at 21-30, 49-54.

In essence, Green has asked the district court to permit an actual-innocence claim

without any demonstration of the claimant's own actual innocence. Green's claim plainly

fails the Supreme Court's requirement ofan 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 of Texas's capital

punishment statute, evidence regarding the possible innocence ofanother party who was tried

and 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 due

process 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 not

violate the appellant's due-process rights. Id. at 540. Likewise, in Scheanette v. State, the

Court rejected a claim that the capital-punishment statute violated the Eighth Amendment

"because it leads the State to execute an unacceptable number ofinnocent defendants." 144

S.W.3d 503,505-06 (Tex. Crim. App. 2004) (internal quotation omitted). The Court found

10

that appellant failed "to demonstrate that his due process rights or his right to be free from

cruel and unusual punishment have been violated by application of our death-penalty

statute." ld. at 506 (citing Herrera, 506 U.S. 390).6 Relatedly, the Court has held that

scientific 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 of Texas's petition for writ ofmandamus

and motion for leave to file a petition for a writ of prohibition. The State's filings were

initially denied as "premature," because the Court could not yet know whether relevant

evidence would be presented. Order at 2, 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). Critically, the Court explained that ''while the 'execution ofan innocent person would

violate due process, the risk that another person who may be innocent will be executed does

not violate [Green's] due process rights.'" ld. (quoting Paredes, 129 S.W.3d at 540). And

the 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 question

at issue." ld.

6. It must be acknowledged that the challengers in both Paredes and Schaenette failed to even claim
that they were innocent. Green, on the other hand, maintains that he is innocent. Nevertheless, Green bases
his Eighth Amendment claim on the evidence of others' innocence rather than his own. This Court's
rejection in Paredes and Schaenette ofclaims based upon evidence ofthe possible innocence ofothers is no
less a barrier to Green's claim merely because Green has stated that he is innocent.

11
 It is now clear that Green bases his Eighth Amendment claim on evidence of the

innocence and the purported innocence ofothers. See supra part II. One additional example

demonstrating this point bears mention: after the Court issued its November 29 order, a

subpoena was issued commanding Paul Maldonado, the State Fire Marshall, to appear in

Judge Fine's court room as a witness in the evidentiary hearing. Maldonado was not present

at the scene of the crime alleged in this case, and he was not involved in any way with the

investigation leading to the indictment. Nevertheless, in a letter to the Harris County District

Attorney's office, Green's counsel indicated that Green intended to call Maldonado as a

witness. Request for Reconsideration on Court's Own Initiative Pursuant to Rule 72.2 of

This Court's Denial of Writ ofProhibition and Writ ofMandamus at Exh. C, State o/Texas

ex. 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. But

Green has been charged with capital murder in a case in which the complainant was shot with

a firearm. It is undisputed that Maldonado has not conducted an investigation in Green's

case and has no personal know ledge of any fact relevant to Green's guilt or innocence. This

is 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. Lykos

v. 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

12

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, general

statistics, and studies, rather than about Green or the crime that he is charged with

committing. Id. Under Paredes, Scheanette, and Rachal, this evidence cannot form the basis

of 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 been

making the argument that this possibility justifies the abolition ofthe death penalty since as

early as the mid-nineteenth century. STUART BANNER, THE DEATH PENALTY: AN AMERICAN

HISTORY 121-22 (2002). The Supreme Court has considered, and rejected, the argument that

capital punishment is unconstitutional because it "entai1[s] both mistake and caprice," and

that "some people will be killed wrongly." Br. for Petitioner at 10a, Gregg v. Georgia, 428

U.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, 547

U.S. at 555; Herrera, 506 U.S. at 417.

13

 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 an

innocent person will be executed should be rejected, because it is foreclosed by the precedent

of the United States Supreme Court and this Court.

Respectfully submitted,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

ERIC J. R. NICHOLS
Deputy Attorney General for Criminal Justice

JONA THAN F. MITCHELL

Solicitor General

ADAM W. ASTON
Assistant Solicitor General
State Bar No. 24045423

OFFICE OF THE ATTORNEY GENERAL

P. O. Box 12548 (MC 059)
Austin, Texas 78711-2548
[Tel.] (512) 936-0596
[Fax] (512) 474-2697

COUNSEL FOR AMICUS CURIAE

14
 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 this

proceeding:

Patricia R. Lykos
Alan Curry
HARRIs COUNTY DISTRICT ATTORNEY'S OFFICE
1201 Franklin Street, Suite 600
Houston, Texas 77002

RELATOR

Stanley G. Schneider
SCHNEIDER & McKINNEY, P.C.
The Lyric Center
440 Louisiana, Suite 800
Houston, Texas 77002

COUNSEL FOR RESPONDENT

IohnKeiman Richard Burr

917 Franklin Street, Suite 550 BURR & WELCH, P .C.
Houston, Texas 77002 2307 Union Street
Houston, Texas 77007
Robert Loper
LOPER LAW
111 West 15th Street
Houston, Texas 77008

COUNSEL FOR REAL PARTY IN INTEREST

Adam W. Aston

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