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TX: Court lifts Jonathan Marcus Green’s execution stay
Thu Jun 28, 2012 11:23

Court lifts Green’s execution stay
Posted: Wednesday, June 27, 2012 12:31 pm | Updated: 1:47 pm, Wed Jun 27, 2012.
By Nancy Flake

The Texas Court of Criminal Appeals on Wednesday lifted the stay of execution for a Montgomery man on Death Row who murdered a 12-year-old Dobbin girl in 2000.

But the lead appeals attorney for Jonathan Marcus Green, who was granted the execution stay by the CCA only four hours before he was to be put to death at the end of July 2010 for the rape and strangulation of Christina LeAnn Neal, will file another appeal in federal court because his client is mentally incompetent to be executed.

“Certainly he has deteriorated,” attorney James Rytting said Wednesday. “He’s even worse than he was when we had the hearing a year ago.

“It’s a really sad and, in manyways revolting, process of putting mentally ill people to death, so we’re going to fight it.”
Rytting said he has not determined when he will file the appeal.

CCA Judge Paul Womack wrote the opinion lifting the stay, joined by Presiding Judge Sharon Keller and judges Lawrence Meyers, Michael Keasler, Barbara Parker Hervey and Cathy Cochran.

It’s now up to Judge Lisa Michalk, of the 221st state District Court, to set a new execution date for Green, said Bill Delmore, Legal Services Division Chief for the Montgomery County District Attorney’s Office.

“I’m sure we’ll be talking with her sometime to set the date,” he said.

The judges found that Article 46.05 of the Texas Code of Criminal Procedure provides “an adequate remedy” for claims of incompetence to be executed, leading to their dismissal of Green’s application for a writ of habeas corpus.

They also found that Michalk applied the correct legal standard and was within the court’s discretion to find Green competent, which she did two days before the CCA stayed his execution on appeal.

The judges also dismissed Green’s appeal of the denial of his motion to recuse Michalk.

In finding that Michalk applied the correct legal standard to find Green competent for execution, “We shall reverse the judgment only if it is outside the zone of reasonable disagreement,” Womack wrote in the majority opinion. “We shall sustain the trial court’s ruling if it is supported by the record and is correct on any theory of law applicable to the case.”

Michalk ruled in June 28, 2010 that she found Green, who is schizophrenic, to be competent under the Article 46.05 standard, and that he “appears to understand the reason for imminent execution” and that Green possessed a “rational understanding” of his then-imminent execution, Womack wrote.

“The trial court here used the correct standard,” he wrote.

But while Judge Tom Price, joined by judges Cheryl Parker and Elsa Alcala, “ultimately” agreed with the CCA’s “bottomline” with the three motions, he wrote in the concurring (dissenting) opinion, the majority opinion has “inadvertently thwarted” the legislative intent of Article 46.05, “essentially making law rather than accurately construing it.”

“For this reason, though I concur in the various results that the Court reaches,” he wrote, “I cannot join its opinion.”

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