The state of Texas does not adequately safeguard against executing the innocent, national anti-death experts and defense lawyers are expected to argue next week in an effort to persuade a Houston judge to renew his declaration that the death penalty is unconstitutional.

The hearing, a rare judicial review of capital punishment in Texas, is expected to last two weeks and attract some of the biggest anti-death penalty gunslingers to town, including Barry Scheck of the Innocence Project. Scheck is expected to try to convince the judge that Texas executed two innocent men and has almost certainly executed others.

State District Judge Kevin Fine nine months ago declared the procedures surrounding the death penalty in Texas unconstitutional, then rescinded his ruling to gather more information.

The case before Fine involves John Edward Green, 25, who faces the death penalty in an alleged 2008 robbery and murder in southwest Houston.

Green's defense team appears to have found a sympathetic ear in Fine, who has said the state's procedures do not adequately protect a possibly innocent person from being executed. The hearing appears to be planned less to convince Fine, and more to create an extensive record destined for appellate review lasting months, if not years.

"We're not saying Texas can't have a death penalty," said defense attorney Casey Keirnan. "We're saying the system has flaws. Those flaws create an unacceptable risk that innocent people can, have been and will be executed in the future."

Andrea Keilen, executive director of Texas Defender Service, a nonprofit that represents death row inmates, said the hearing represents the first time a court will consider the constitutionality of the Texas death penalty in the context of analyzing whether there is a substantial risk of convicting the innocent.

She said the Texas death penalty is unreliable and unfair and allows innocent people to be executed.

"This sort of analysis is long overdue," she said.

A surprise ruling

Fine's wholly unexpected ruling during a routine hearing in Green's case in March brought criticism of "judicial activism" from Harris County District Attorney Pat Lykos, Texas Attorney General Greg Abbott and Gov. Rick Perry.

The Harris County District Attorney's Office on Thursday declined comment until the hearing's conclusion. In March, Lykos said the constitutionality of the death penalty was well-settled law.

Prosecutors say Huong Thien Nguyen, 34, was robbed and shot to death on June 16, 2008. Her sister also was shot, but survived.

Three mainstays of criminal prosecution — fingerprints, eyewitnesses and snitches — aligned to put Green, 25, in jail, accused of capital murder. Those tools, and other issues involving death penalty procedures in Texas, are expected to be put to the test as Fine allows both sides to flesh out arguments.

An expert brought in by the Harris County's district attorney's office said a partial palm print found on Nguyen's car belongs to Green. Defense lawyers for Green counter that the print originally could not be identified by a Houston police technician.

Green's lawyers also question the credibility of a burglary suspect who told police he believed Green was involved in the shooting. The informant produced his own gun, the murder weapon, and said Green used it, attorneys for Green said.

Finally, Nguyen's sister gave police a description of the man who shot her and killed her sister. After Green was identified as a suspect she picked him out of a photo array, despite the fact that the description she gave did not match Green, Keirnan said.

Forensic experts, informants and eyewitness identification have been factors in convictions that became exonerations.

Since 1976, 138 death row inmates have been exonerated nationally, 11 of which were from Texas. According to the Death Penalty Information Center, for every nine people executed, one is exonerated.

Good system, good luck?

Death penalty supporters say exonerations prove that the system of appellate review work.

Opponents, however, say world-class lawyers and simple luck are the reasons behind exonerations.

They point to the case of Ernest Ray Willis, who was convicted of murder by arson in Pecos County in 1987 and sentenced to die. By chance, his case was taken up by a large law firm in New York that spent over a million dollars to investigate and ultimately exonerate him.

"Any fair reading of the cases vindicating death row inmates shows a common theme - most owe their freedom to Lady Luck," said researcher Michael Radelat, who is cited in court documents in Green's case.

Scheck, a New York lawyer and the co-director of the Innocence Project, is expected to elicit testimony regarding two men he says were wrongfully executed: Claude Jones and Cameron Todd Willingham.

Jones was executed for a 1989 San Jacinto County robbery-murder after being tied to the scene by a hair that was shown, after the execution, to belong to the victim.

Willingham maintained his innocence before being executed six years ago for the arson murder of his three children in 1991. The investigations surrounding the house fire have since come under intense scrutiny.

brian.rogers@chron.com