combinations, have led to the conviction and death sentencing of innocent people in Texas. Thecase of Ernest Ray Willis, convicted and sentenced to death in Pecos County in 1987 – who wasgranted a new trial in 2004 and whose charges were then dropped by the district attorney –exemplifies such a case. Mr. Willis’ case also shows that people wrongfully convicted andsentenced to death in Texas who are
executed, are spared not because the Texas system has asafety net adequate to catch every such person, but rather, because of fortuitous factors: the extraattention given to capital cases because of the stakes involved, the luck of having world-classhabeas corpus lawyers take one’s case, and a confession by the real killer. When the fortuitiesthat lead to the exoneration of every wrongfully convicted and condemned person are taken intoaccount along with the likely rate of wrongful conviction in capital cases, there is a very strongprobability that Texas has executed twelve or more innocent people. The protection againstcruel and unusual punishment afforded by the United States and Texas Constitutions cannottolerate a capital punishment process that gives rise to this kind of risk.
II. THE ISSUES THAT THE COURT HAS ASKED THE PARTIES TO ADDRESS
On March 26, 2010, this Court set out the issues to be addressed:The issue or issues that must be addressed are, first, whether or not it is a violationof due process to execute an innocent defendant; second, it must be determinedwhether or not the State of Texas under 37.07(1) [sic] has, in fact, executed aninnocent person; and, finally, if they have executed an innocent person, does thedefendant … have a basis to raise a claim based on these facts.Transcript of Hearing, March 26, 2010,
State v. Green
, No. 1170853, at 4.Mr. Green addresses the first issue in the next section of his amended motion. He urgesthe Court to recast the issue as one under the Eighth Amendment rather than the Due ProcessClause of the Fourteenth Amendment. Specifically, he argues that under the Eighth Amendment,