Gumming up the works

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The post was already written. The execution was scheduled for Wednesday night. The victim was a 12-year-old girl. His only hope was that a judge would grant his request for a stay so someone could decide whether he was competent to be strapped down to a gurney and murdered by the state.

Jonathan Green's life was spared, at least temporarily, by US District Judge Nancy Atlas. Judge Atlas ruled that the mental competency hearing held to determine whether Mr. Green was competent enough to kill violated Mr. Green's due process rights. She also ruled that the judge who conducted it used the wrong standard to determine whether Mr. Green was competent.

Two years ago a stay was granted so that a hearing could be held to determine whether Mr. Green could be executed. The judge, Lisa Michalk, scheduled the hearing so soon after the court ordered it that medical personnel from the Texas Department of Criminal Justice who treated Mr. Green were unable to appear. The judge then denied defense motions to continue the hearing so that the witnesses would be available.

The judge made her decision based upon the testimony of two state's witnesses without affording the defense an adequate opportunity to be heard.

The stay is not to determine whether Mr. Green, who has been diagnosed with schizophrenia, is competent, but to determine whether his due process rights were violated by the manner in which Judge Michalk conducted the competency hearing.

Mr. Green's guilt has never been at issue. The sole issue has been his mental state of being. It's not a sexy death penalty abolition case. But it is a case that examines the way in which we allow the state to send people to their deaths.

For those who truly believe in limited government, the notion that the state can order a man murdered without affording him his due process rights in a hearing to determine his competency, is more than troubling. The ability to kill is the most intrusive power the government has and here we have a case in which a judge did what she could to make certain that the playing field was not level for a man challenging the state's right to kill him.

The fight against the death penalty isn't on the innocence front. The fight is over the minutiae of the death machine. In Mr. Green's case, questions about the mechanics of a competency hearing have gummed up the works.