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

 Posted on December 06, 2010 in Uncategorized

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.