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2 THE COURT: All right. Motion ta

3 Hold that Texas Code of Criminal Procedure Article

~ 37.01 is Unconstitutional.

5 MR. LOPER: Judge, I think the main

6 thrust of this motion is that, as it says, there

7 hav(~ been people exonerated from the country's death

8 rows, not just Harris County, not just the State of

9 Texas, and just from the standpoint that mistakes

10 are made and obviously there are no go-backs once an

11 execution has taken place. That for all of the

12 reasonR that we list in here and the various

13 failures as far as notice are concerned, wc::' roe

111 ask.i 1 ig you -_. ~-1e' re basically s"aying that Wc;? 1:hin~:

15 t hat. l: h e 3 y:; t e ill t 11 a i: cl e i: e r TIl i nes w11 0 s h 0 U .1. d die j n

16 Texas is bro}:en. We're asking you to find it

1"7 uncoIlstitutLonal.

IS 1 don' t kn (') win 10<,) kin g '1.: hat He

19 have any cases th3t have ruled ~gainst us directly

20 on this.

21 TH E COUR'!': State.
22 H S _ 1\ T.. :r.. EN: Your Honor, because

)3 they did not cite any specific legal reaS0n that the

24 statute should be declared unconstitutional, they do

25 not cite any 'l'exLL3 Court of Criminal AppeaJ.s cases I
_ _ _ _.1
 1 or any Supreme Court of the United states cases that
2 say that b~cause there may be flaws In a system that

3 anything can be declared unconstitll~ional, we

4 respectfully request that you deny the motion.

5 [ do not have case law other than

6 general cases [rom the Court of Criminal Appeals

1 that have repeatedly upheld the death penalty

8 statute.

9 THE COURT: On grounds of.

10 everything under the sun except this one?

11 i'1;i • ALLEN: Nell --

12 'rHE COURT: I ':m asking.
HS. ALI.EN: And 1 -- you know;
Judge, in looking -- and let me just say for the
1 ~
-. :> record on all this, the Appellate Division c_id

16 much -- aJ.most <::11 of the legal r.esearch on this.

17 So I'm in great deaJ relying on th~ chief of the

18 Appellat(~ Divis.ion on this. And the.r.e -- we could

19 not find any cases rhat directly adrlres~ just the

20 system being brokp.n because i t isn't really 0

21 constitutional issue and so or i t ' s definitely

22 not a statutorv issue.
23 'I'll E COUR'l': I think it gives rise
24 to due process claim. Would you argue with that?
25 1-1S. ALl,EN: I would agree that it
 22
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1. CO U 1 d .b e a due pro c e s s e 1 aim, b il t t hat's no 'I'l h (H'/

2 they couched it. So Uta t 's not what J' m prep~. red to

J respond to.

J1 ffHE COUI~T: Well, they've listed

5 the Sixth, Eighth, and Fourteenth Amendments,

6 Article, Sec~lon, due process under Texas

7 Constitution, 10.

~i:S. AI.LEN: The Court of Crind.'nal

9 Appeals in and I cannot pronounce the nawe;

10 S C H 'E A NET T E -- did address the Federal due

11 process claims regarding a system and that in a

12 study that says that, "While the execution of an

13 innocen t person may via 1 a te E'ede.ca 1. due proces s (mc

14 can be considered cruel and unusual punishment,

15 appellant does not claim that he is innocent :in that

16 case. He, therefore, fails to demonstrate that his

17 due process rjghts or his right to be free from

18 cruel and unusu~l punishment have been violated by

19 our death penalty statute."

20 THE COURT: Hr. Loper.

21 MR. LOPER: Judger I hope that

22 we're not going to have to wait until there's some

23 finding that our client's innocent or not to

24 complain about the statute. If we were to get to

25 that point, we wouldn't worry about the statute.

 '---,
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1 'j'H E COUR T : Right. I
I

? i:-'lR. T.,O?ER: I th.tn.:ic this is talki~g i

3 aboa t t,
hi torica lly ~.>eople in the past tha t we kno\v,

4 we absolutely know have been innocent: tha t have been

5 exonerated and taken off death row. Those are the

6 kind of caaes that there can be no go-backs once the

7 execution's taken place.

8 TE:i~ COURT: Well, it seems to me

9 the case cited by Ms. Allen involves a form over

10 substance a~gument wherein it is never argued the

11 defendant was actunlly innocent and, therefore,

12 would have his due process rights violated.

13 my question is, is your argument that your client i~

II.! innocent:?

15 MR. LOPER: I certainly would say ,

16 at this point in time we have the presumption of

17 innocence until i t ' s taken away. If that's

18 sufficient under that case, I don't know. I don't

19 kno\-l tha t case. Obviously that was something that

20 was appealed post conviction, I would p=esume.

21 THE COURT: Right. My guess is

22 your defense is going to be there's a

23 misidentification and someone else committed this

24 murder.

25 I see ~r. Casey shaking -- well,

 24

1 M~. -- I'm ~orry, Casey.

2 HR. KEIRNAN: That's okay.

3 i'1R. LOPER: That'R certainly one

4 part of our defense, but I think that we could just

5 stand on the ground of saying that the State is not

6 going to be able to prove their case beyond a

7 reasonable donut to make us innocent enough to claim

8 relief under this motion and under the parameters of

9 the case that Ms. Allen has cited.

10 THE COUR'£: Okay. For pur.poses of

11 this motion, 1 will take it that your argument i3 or

12 that your defense will be someone else committed

13 this offense, therefore, your client is innocent of

1"4 the offense_

MR. LOPER: I~ certainly includes •

16 that too, Judge. Yes, sir.
17 THE COURT: Just for the record, my

18 understanding ...-. and 1'11 take judicial notice that

19 there is an error -- well, actually not an er~or,

20 but on Page 2 of the motion, Paragraph 4, "More than

21 100 inmates from the country's death rows have been

22 exonerated. II

23 That number has reached over 200 at

24 this point. The Court also will note and take
25 notice of the fact that the greater. majority of

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1 those exonerated have been cases whcce there was DNA

2 evidence left to test to show the defendant's

3 innocence and we can't -- we cannot conceivably

4 revisit someone's innocence absent some form of

5 evidence such as DNA evidence. That calls into

6 question even more so the execution of inno~ent

", people.

All right. Mr. Loper, on Page 2 of

9 your motion, second full paragraph, you state, "IE

10 protection of innocent people from state-sponsored

11 execution is a protected liberty, and if such

protected liberty includes the right of an innocent

13 person not to ~e deprived, by execution, of the

14 opportunity to d~monstrate his innocence, then

15 Congress may not override such liber~y ab~ent a far'

more clear and compelling need than any presented

17 here." Then you cite a District Court case out of

18 New York, UnIted states vs. Quinones, spelled

19 QUI NON E S.

20 Can you clarify that for me?

21 MR. LOPgR: It's -- as well as I

22 can clarify it right now is to tell you, Judge, that

23 I know that this -- that that statement came from

24 that case. I don't have the case with me, but I

25 will run it down for you.
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1 TUB COURT: The Court notes that in

2 Paragraph 3 of the motion Defense states, IIIt 1· f'

.;.)

:; set;:led la~v that the Fifth Amendment's broad

4 guarantee of 'due process' must be interpreted in

5 light of evolving st~ndards of fairness and ordered

6 liberty." Th2TI you go on to discuss the exoneration

-; of innocent individ:Jals from America's death rotvs,

8 \vhich ~gai n I will take judicial notice that ....

l.nerc

9 have been more than 200 such individuals exonerated.

10 lIowevE~r1 those
.
ex~neratlons
.nave been by nnd large

1] limIted to cases where there has been DNA evidence

12 which l.eaves those accused of capital offense where

13 there l5 no DNA offense where they may, in fact, be

l~ in~ocent no redress.

15 So under this argument, 1 suppose '

16 as th~ gatekeeper of the law, I've got to decide

17 what our evolving standards of fairness and ordered

18 lib(~rty ere. If -- if they are such that society

19 belie~es it to be okay to execute innocent people,

20 whether that be one or a thousand so that a state,

21 specifically the state of Texas, can have a death

22 penalty aO that those that might be deserving of the

23 penalty of death can actually be put to death,

24 whether or not that -- that trade-off would meet our

25 curcent standards of fairness and ordered liberty.
 ?..,
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1 I've taken no polls. I haven I t

2 seen any -- I've never read any articles, whether j.n

3 a newspaper, legal journal, wherein people have heen

asked the question: Is it okay to eXGcute innocent

5 people so that we as a society can have a death

6 penalty to execute guilty?

7 From my standpoint, I am not

8 ,,-1illing to have my friends or a family member or

9 even an acquaintance ~'lho is innocen t -- I'm not

10 willing to have -- let them be the sacrificial lamb

11 to be executed so that we can have a death penalty

12 and execute those actually deserving of the death

13 penalty. And I believe that because of the efforts

14 of the Innocence Project and Innocence Projects

,
15 around the country and the attention given to the

16 moratorium on executions in the state of Illinois

17 because of this very fact -- and these are facts,

18 not assumptions, that we do, in fact, have innocent

19 people on death row that were to be executed who

20 were found to be innocent and that more than likely

21 statistically there are at least an equal number of

22 inmates sitting on death row somewhere in this

23 country that do not have the DNA evidence available

24 to demonstrate their innocence. And I think that

25 our country has become more aware, our citizenry has

 , . . . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -•••- - - - - - -- "1
J

!I
1 become mor~ awo~e of the fact that there is a more I

2 than a chance of executing innocent people.

3 1 don't think anyone, if asked, if

4 they were willing to allow one of their family

5 members, friend~,; or acquaintallce or cO-\vorkers to oe

6 the sac r i fie i a .I. 1 a In b If' 0 u .1 d a 9 r €: e t hat t Ii e y we r l~

., willing t.o do that . I would imagine even if I asked

3 t~0 pr~secut(lr5 i:Hli ·"idually personally if they

9 would be willing to do that, their answers would

10 probably be the sarne as mine, although I don't

11 pretend to speak for them.

12 With no other guidance from a

13 higher court other than the guidance charging the

1~ trial courts with the duty of being gatekeepers,

15 this is probably the most difficult decision I1ve

16 had to make in my limited time on the B€:TIch. But I

17 am not prepar~d to say that our society, that our

18 citizenry is willing to let innocent people die so

19 that the state of Texas can have a death penalty.

20 Acting as gatekeeper and strictly

21 as gatekeeper and having to make that decision,

22 that's what I so find and I'm going to grant the

2_oJ_' defendant's motion and we'll let a higher court of

24 greater wisdom make the ultimate decision.

25 Hopefully that being the Supreme Court of the United

 1 states. So Motion to Hold That Texas Code of
2 Criminal Procedure Article 37.01 Unconsti.tutional is

3 granted_

4 NR. KEIRNAN: 'rhank you, Your

5 Honor..

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2 THE COURT: Okay. "let me --

3 I 111 ._u I ' l l Reader's Digest it the bes1: I can_

4 Because there are no guiding case

5 law, I'm only guided by -- other than lDw that

6 requires -- case law, United states Supreme Court

7 case law that requires that I play the role of

8 gatekeeper when it comes to what our society deems

9 is fair and decent and as gatekeeper and my only

10 guiding principle being the very tact that we have

11 had over 200 innocent people exonerated from

12 1I.merica' 5 death 1:0WS can only lead to the conclusion

13 that we have, in fact, executed innocent people.

14 ~:d my belief that no one would be willing to allow

15 one of . thei1: .loved
.·:·r- .
ones, as I said before,

16 associates, friends, co-workers, suffer the death

17 penalty, to be one of the innocent ones that suffers

18 the death penalty so that the State of Texas can

19 have a death penalty, I think because of the media

20 attention on the death penalty, the recent

21 moratorium on the death penalty a couple years out

22 of Illinois and our changing ideas of fairness and

23 decency compels me to rule that, in fact, the

24 statute is unconstitutional_

25 Is there -- if I need to state

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1 anything more, consider something else, please let

2 me know. I'll be happy to do that; but in a

3 Reader's Digest version, that is my finding and

4 ruling.

5 MR. KEIRNAN: Thank you, Your

6 Honor.

7 MR. LOPER: Thank you.

8 THE COURT: All right. We are

9 adjourned.

10 (Proceedings adjourned.)

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