Death on Trial: Day 1

I wasn't there.  My understanding is all second hand, from reports and summaries and news stories. (I have been wading through what a lot of those hands have written, and yes, I know I'm mixing metaphors; tough).

Here's the quick summary as best I can manage it.  

The state began by objecting to the proceeding.  Prosecutors offered reason after reason why Judge Fine had no right to hold the hearing.  He was going to hold it anyway.  So the state announced that it was going to sit it out.  Prosecutors would attend.  They'd watch and listen.  But they wouldn't participate, would not speak.  Brian Rogers, in the Houston Chronicle, described that decision, made by the elected prosecutor, Pat Lykos as a

last-ditch strategy to end state District Judge Kevin Fine's judicial inquiry into the procedures surrounding the state's death penalty statute.

Casey Keirnan, one of John Green's lawyers, had something different to say.

It's arrogant, and it's contemptuous for the state to decide to not participate when they're trying to put my client to death.

Mark Bennett called it "disrespectful" because that was the best "newspaper-safe synonym" he could think of for “chickenshit."

Regardless, the judge rejected the prosecutor's plan.

I'm not allowing you to not participate.

But he can't make them cross-examine witnesses or make objections or call their own witnesses.  And the state won't do any of those things.  It reflects a contemptuous attitude, and it could be a dangerous ploy since the failure to object means that whatever evidence Green puts before Judge Fine will be admitted without objection.  But it also reflects, I suspect, a careful calculation.

Lykos (or whoever does her strategizing, I'm not there and don't know her) figures that there's a fair chance Fine will declare the Texas death penalty statute unconstitutional as applied to Green.  By sitting it out, Lykos can argue that Fine's ruling is obviously one-sided and he held what was essentially a kangaroo court.  She wasn't going to validate it by entering into his megalomaniacal game.

Or maybe not.

Regardless, stand mute (except for repeatedly saying that's what they were doing) is what the state did.

And so it began.

Green's lawyers laid out their job.  They told the judge that they had to convince him that there's a substantial chance that Green will be convicted and sentenced to die, even though he's innocent.  They can't wait until after he's been found guilty (if that should happen) to try and show that a mistake was made because the post-trial procedures are all about either legal technicalities or they demand hard proof of innocence.  Green doesn't have the sort of hard proof that works post-trial.  What he has is good reason to believe that his innocence will be irrelevant to the fact of whether he's convicted.

But what's the standard? asked the judge.  It's up to you, he was told.  All SCOTUS said is that it's unconstitutional if there's a "constitutionally unacceptable risk."  And you get to decide what that means.

And then they started on the testimony.  

The overview:  Mistakes get made.  Shit happens.

The details:  138 exonerations, 1 for every 9 people executed.

The reasons:  Bad lawyers, bad forensics, biased juries, etc., etc., etc.

And the beat goes on.

Of course, none of this will end anything.  Even if Fine says the Texas statute is unconstitutional, it won't change the law.  The state will appeal.  Eventually, the Court of Criminal Appeals will say that the death penalty is just fine, thank you.

But slowly, the public learns.  And doesn't much like what it learns.

So take that.  It's a win, regardless.