Lawyers for John Edward Green appealed the death penalty law in advance of his trial. The hearing began Monday with Houston District Attorney Pat Lykos ordering lawyers from her office to "stand mute" during the proceedings, functioning only as observers and not making objections or questioning witnesses, the Houston Chronicle reported.
Late Monday, Lykos's office filed an emergency appeal asking for an order from a higher court to end the proceeding. District Judge Kevin Fine said Tuesday he would continue the hearing even though he is aware of the appeal.
The prosecutor says Green does not have standing to challenge Texas's death penalty law because he has not been sentenced to death. Green, 25, is charged with murder during a 2008 robbery in Houston.
"He is at risk of being wrongfully convicted, wrongfully sentenced and wrongfully executed," said Richard Burr, one of his lawyers.
The defense plans to put on evidence about Claude Jones, executed in 2000, and Cameron Todd Willingham, executed in 2004. Jones was convicted based on one strand of hair that DNA testing after his death showed was not his, while Willingham was sentenced for killing his three children in a fire several experts now say was accidental.