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They're not claiming that the death penalty, or the Texas death penalty is, in and of itself, unconstitutional.  They're not, that is, making a facial challenge to capital punishment.

What John Green's lawyers are going to be presenting for two weeks beginning today is evidence that

Article 37.071, § 2 of the Texas Code of Criminal Procedure [is] unconstitutional as applied, pursuant to the Eighth and Fourteenth Amendments of the United States Constitution, and Article 1, Section 13 of the Texas Constitution.

That section of the Code of Criminal Procedure lays out the procedure to be followed when a criminal defendant has been found guilty of capital murder and the state is asking for a death sentence.

Green's claim, as laid out in detail in his Amended Motion to Declare Article 37.071, § 2 of the Texas Code of Criminal Procedure Unconstitutional as Applied, is that Texas capital procedures are insufficiently protective of innocence.  

Mr. Green states a claim under the Eighth Amendment when he argues that under the Eighth Amendment, the Texas capital punishment scheme creates a substantial and constitutionally unacceptable risk that innocent people are wrongfully convicted and sentenced to death.

The Due Process Clause and related analysis, according to the Supreme Court which like it or not is the last word on these things,

does not require the elimination of every possibility of convicting an innocent person – and thus, may tolerate the execution of an innocent person.

But the 8th Amendment is different.  The Cruel and Unusual Punishment Clause, according to the Court, mandates reliability.  The risk of error under Texas procedures are simply too great.

We know, after all, that innocent people get sentenced to die.  There is substantial evidence that some have been executed.  It is, in fact, fanciful to think that it hasn't happened, and two recently exposed cases in Texas (Todd Willingham and Claude Jones) make that glaringly obvious.

But why?  What's the problem.  It starts with a set of generic problems.

Five of the factors that give rise to a risk of wrongful conviction are unique to, or manifest themselves uniquely in, capital murder cases. These 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.

But, as Ron Popeil would say, But wait.  There's more.  Along with the five generic factors, there are Texas procedure specific issues.

Seven additional factors exacerbate the risk of wrongful conviction already created by the
five risk factors peculiar to capital cases. Some of these factors are present in every case; others are present only when the prosecution’s case is built on certain kinds of evidence. All, when present in a case, magnify the risk of wrongful conviction that already inheres in every capital case.

1. Inadequate compensation of jurors results in jury pools that are not representative of a fair cross-section of the community, diminishing the protection afforded by the jury against overzealous prosecution;
2. Eyewitness identification testimony is introduced which has not been obtained through the use of safeguards established to reduce the risk of mistaken identification.
3. Confessions are introduced without having been obtained through the use of procedures necessary to guard against false confession.
4. Perjured testimony by informants  who are paid or provided leniency in their own cases is often introduced.
5. The prosecution's introduction of forensic evidence appears to lend certainty to important forensic issues which is not justified and is misleading.
6. Pretrial discovery procedures are inadequate to safeguard against the suppression of Brady evidence and the introduction of unreliable evidence.
7. Juries are selected in a racially discriminatory manner, thereby reducing the thoroughness and accuracy of their deliberations.

And there's still more.

Two procedures are designed to serve as the failsafe against wrongful conviction: state habeas corpus proceedings and clemency proceedings. However, these procedures are so flawed that they rarely serve their purpose. They are most certainly not failsafes of any sort.

Sadly, none of this is news to folks who've been paying attention.  You can argue about the severity of the problem.  You can argue about whether this or that person was in fact wrongly convicted.  You can argue about just how reliable you think the system needs to be.  (How many wrongful convictions are OK?  How many wrongful executions?)  You can argue about those things just as you can argue about whether in principle it would be better to have a death penalty or not to have one.  And you can argue about the moral contours of a death penalty law if you're going to have one.  

You can argue, that is, about all kinds of stuff.

But if you take off the blinders and look at the facts, you can't argue that the fourteen factors (count 'em, it's fourteen) Green identifies are real.

Do you care?  Should the court?  Will the system be honest enough to call a halt?

The smart money says that whatever Judge Fine decides, Texas will keep on sending people to the row and then killing them.  I think the smart money is right.  But I believe in public education, too.  More than the courts, actually.  Certainly more than the Law.  And this is a wondrous opportunity for education.
Two weeks of evidence.

Starting this morning.

And you know, once in a great while, the smart money is wrong.  

Just ask all those smart folks who invested with Bernie Madoff.

More than just a hat tip to Mark Bennett who provided the motion and related documents.