Question not 'Is death penalty unconstitutional' but 'Is common evidence unreliable?'

The big news story next week in the Texas criminal justice world will be the hearing to begin mañana in Judge Kevin Fine's court in Houston to determine whether the death penalty as practiced in Texas is unconstitutional. The hearing will be heavily covered in the MSM and I probably won't be tracking the blow-by-blow on Grits, but Mark Bennett will be there and has provided the pleadings and expert witness list from the defense. See also various MSM coverage here, here, here, and here. Getting to the heart of the matter, Andrea Keilen of the Texas Defender Service had a guest blog post at the Dallas News laying out the top six arguments against the death penalty, several of which are implicated at the hearing. They are:

• First, Texas has no standards to ensure that eyewitness testimony is obtained in ways that protect against the risk of mistaken identification. 
• Second, Texas allows the introduction of confessions that have been obtained without safeguards to protect against false confessions.
• Third, use of informant testimony is largely unregulated in Texas.
• Fourth, pervasive flaws have been identified in the analysis of presentation of forensic evidence that result in unreliable results.
• Fifth, pretrial  discovery procedures are inadequate to safeguard against the prosecution's suppression of evidence favorable to the accused.
• Sixth, Texas prosecutors in Harris County and elsewhere have a shameful history of excluding African Americans from juries.

Most notable to me about the debate to take place in Fine's courtroom is that, despite the fact that the Culture Warriors on both sides will be out in force flaming one another over whether the death penalty is justified, none of these arguments actually have anything to do with the death penalty per se, except that the death penalty happens to be in play as a potential punishment in this particular case. Instead, these are debates about the quality of evidence used to convict defendants throughout the justice system and whether, given the present lack of safeguards, such evidence and procedures may be trusted to sustain a conviction beyond a reasonable doubt.

Eyewitness testimony is vulnerable to error in all types of cases when the witness didn't previously know the defendant, not just capital murder. Texas does not require recording police interrogations, and confessions needn't be corroborated as they must be, for example, in federal and military courts. Very few limits exist on incentivized informant testimony. The same forensics that are flawed in capital cases have been questioned in more mundane settings. And neither pretrial discovery nor racial skewing of jury selection are procedural  matters that only arise for capital defendants.

So in a real sense, this is not a debate over "Death Penalty: Pro or Con?," though you can be sure that's how the loudest arguments will be framed. The only thing that makes these issues especially problematic regarding death penalty cases is the irreversibility of error, not its sources, which are common in many types of cases.