The Texas Court of Criminal Appeals halted an unprecedented death penalty hearing late Tuesday after an emergency appeal from the Harris County District Attorney's Office argued that a Houston judge was overstepping his boundaries.

The hearing on the constitutionality of the procedures surrounding the death penalty in Texas will be stopped to allow both sides 15 days to respond and file briefs in the state's highest criminal court.

State District Judge Kevin Fine had acknowledged that the appellate court may have been considering whether to order him to halt the proceedings in a preliminary hearing in the death penalty trial of John Edward Green.

Prosecutors and defense lawyers will now argue whether the hearing should take place. The district attorney's office said in its brief that Fine was exceeding his authority by allowing evidence regarding flaws in past death penalty cases to decide issues in Green's case.

Donna Hawkins, a spokeswoman for the district attorney office, declined to comment late Tuesday.

Defense lawyers for Green said they were disappointed in Tuesday's decision, but vowed to fight on.

"We will never quit on this issue and will defend him all the way to the Supreme Court if necessary," said Casey Keirnan, one of Green's attorneys.

Arguments at the appellate court could end or may just delay what has turned in to a full-fledged accounting of the safeguards of the procedures available used to convict and execute inmates in Texas.

Steven Halpert, a Houston defense lawyer who has been watching the proceedings, said he does not believe the hearing will continue.

"It's a shame, because a free debate, a well-rounded debate on these issues is certainly overdue, and we may never get that opportunity," Halpert said.

'Standing mute'

Prosecutors have been "standing mute" at counsel tables during the hearing that began Monday and was expected to last two weeks.

Their strategy has been to refuse to take part in Fine's hearing, opting instead to plead their case to the appeals court.

Before they decided to not say anything, prosecutors argued that the law surrounding the death penalty is well-settled precedent.

They also argued that Green has not been convicted of anything and therefore lacks standing to argue against the death penalty.

The district attorney's office argued a similar motion in late November, saying they believed evidence of other exonerations would be introduced into evidence. The appeals court ruled against them.

In this week's motion, which was granted, the district attorney's office swore out an affidavit that the evidence the judge was hearing was indeed about other exonerations, not Green's case.

Defense lawyers said there was not much difference between the two requests.

Defense lawyers said there was not much difference between the two requests.

"We're disappointed and frankly a little surprised," said Robert Loper, one of Green's attorneys. "The state didn't say anything new."

Loper also panned the district attorney's refusal to participate.

"If they're afraid to have the hearing, then maybe they're concerned about what may come out," he said. "Any person hearing the witnesses who have already testified would be shocked by all the exonerations, and the reasons behind those wrongful convictions."

Exonerations not rare

Brandon Garrett, a University of Virginia law professor, testified Tuesday that the rate of exonerations across the country is now averaging more than one a month.

Seven of the 261 national exonerations came from Harris County, Garrett said.

Loper noted that some of the reasons behind the wrongful convictions include mistaken eyewitness identification, bad forensic science and informant testimony.

Lawyers for Green believe the evidence against Green may include an eyewitness, a partial palm print and snitches.

Green, 25, could face the death penalty. He is alleged to be the gunman in a 2008 robbery and slaying in southwest Houston.

His attorneys have said Green is innocent, but the hearing was less about Green's case and more about whether Texas has executed innocent people because of a flawed system.

Barry Scheck, co-director of the Innocence Project, had been scheduled to take the helm today to call witnesses to testify about Cameron Todd Willingham and Claude Jones, two men convicted of capital murder and executed.

Scheck had been expected to try to convince Fine that the two men had been wrongfully executed.

brian.rogers@chron.com