John Green Death-Penalty Hearing and Pat Lykos’s Game


I spent a good part of the day today watching the hearing in Judge Fine’s court on the constitutionality under the Eighth Amendment of Texas’s death penalty procedure; read my tweets on the subject (hashtag #VIII) here.

The issue, as I discussed here, is whether death-penalty practice in Texas creates such a significant risk of executing an innocent person that the death penalty constitutes cruel and unusual punishment. The risks arise out of some factors that are unique to death-penalty cases (for example, death-qualified juries) and some that are inherent in criminal trials (for example, unreliable forensic evidence).

Today’s witnesses: Dick Dieter from DPIC, Professor Sandra Thompson from UHCL, and two of the defense investigators (laying out what the defense believes to be the State’s evidence).

Notable line: Alan Curry, for the State: “I have been ordered by the District Attorney to stand mute.” Pat Lykos has decided that the appropriate way to deal with this hearing, in a case in which she is trying to put a man to death, is to play games.

Curry is the DA’s smartest appellate lawyer, but he shouldn’t be standing up in the trial court. Kari Allen, the State’s highly experienced trial counsel sitting with him, could be heard telling him what to say: Don’t say no objection. Say no comment. (Really. “No comment.”) After the morning break Curry read from a script that Allen had prepared making a running objection to the evidence in the case. (Really. We respectfully refuse to participate, but could we have a running objection?)

If you’re going to send someone to say dumb things in front of the national media, you don’t send the appellate guru, you send a trial lawyer. We’re used to saying dumb things in front of crowds of people. But Curry’s was a command performance, ordered and orchestrated by Pat Lykos.*

It was clear, watching Curry, that he was highly uncomfortable playing the role that Lykos mandated for him. Which reflects well on him. Because, however Pat Lykos wants to treat it, this is not a game.

*The irony is that, under the last administration, Chuck Rosenthal set Curry aside to argue before the Supreme Court in Lawrence v. Kansas, by all accounts making a fool of himself.


6 responses to “John Green Death-Penalty Hearing and Pat Lykos’s Game”

  1. Must be nice to be a prosecutor and do nothing but preserve an issue for an appellate court without making a record of any kind and still know you’re going to win.

  2. Pat Lykos appears to be borrowing a page from the Republic of Texas, militia-type set of wackos…you know, the ones occasionally discussed on this blawg…the ones who believe the UCC is controlling authority and that fringe on the flag places district courts under admiralty law? –Yeah. Them.

    Those folks usually refuse to participate at their trials, denying that the court has any legitimate authority over them. I and a uniformed member of the HPD bomb squad once got to ACTUALLY SERVE ON A JURY thanks to a young female of this ideological bent who refused to participate in voir dire in a JP court. –But I digress.

    For the DA of the largest county in Texas to take a page from the playbook of these loonies is disgraceful. Even more so when a man’s life is at stake. Whether it is a capital murder or a speeding ticket, the State needs to participate and be heard during every phase of a criminal case. I suspect that, if cameras were not present, Lykos would have told her subordinates to vacate the courtroom.

    Someone needs to explain to her that the refusal of the State to participate will have no bearing whatsoever on the outcome, and could possibly even compromise future proceedings, depending on what findings of fact and conclusions of law the court makes, and what happens at the appellate level. The hearing being held in Judge Fine’s court is either legally proper and authorized, or not. The DA’s petulant response does not effect that. The prosecutors could lodge objections, cross examine witnesses, or even call witnesses if they wanted without jeopardizing their position in any way. If the hearing is not legitimate, or procedurally defective in some way, it won’t matter. And, on the other hand, if it IS, then at least they’ve made the record they want. If they “stand mute,” then the opposite will be true.

  3. I appreciate your posts highlighting the courtroom activities of the day. I would love to watch these two heroes, Dick Burr and Kevin Fine, peel back and lay bare the facts which apparently cannot be refuted by the DA’s office.

    I wonder if these facts will matter in the long haul.

    Thanks again for your reporting.

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