The fates of two men subject to potentially imminent execution in Texas hang in the balance, as the state’s attorney general and one local prosecutor challenge the discretion of other key officials not to move forward with executions. The controversy over the execution dates highlights emerging tensions between prosecutors about enforcement of death sentences and the provision of fair process before a prisoner is executed.

In Harris County, prosecutors are challenging Houston Judge Natalia Cornelio’s refusal to schedule an execution date for death-row prisoner Arthur Brown to provide a new lawyer time to investigate whether he is ineligible for the death penalty because of intellectual disability. In Nueces County, the Texas Attorney General’s Office has intervened in county proceedings to oppose District Attorney Mark Gonzalez’s motion to withdraw a death warrant scheduling the execution John Henry Ramirez for October 5, 2022.

The Attempt to Schedule Arthur Brown’s Execution

The request to set Brown’s execution date reached the Harris County District Court amid questions as to whether he was eligible for the death penalty in the first place. Defense lawyer Paul Mansur asked the court to deny the Harris County District Attorney’s request for an execution so that new counsel could be appointed to investigate claims that Brown is intellectually disabled.

Mansur cited records and affidavits that Brown’s mother admitted to having drunk alcohol on a weekly basis while she was pregnant with him, and that Brown may have suffered a traumatic brain injury as a child, had a low IQ, and had been placed in special education classes. Mansur, who has represented Brown since 2008, wrote that “[n]one of these red flags for intellectual disability have been investigated, nor has anyone investigated Mr. Brown’s adaptive functioning.” He urged the court not to set an execution date, saying “[a]nyone whom this Court appoints will require substantial time to become familiar with the case.”

Joshua Reiss, chief of the Post-Conviction Writs Division in the Harris County District Attorney’s office, argued that Brown’s counsel have had two decades to present evidence of intellectual and have not done so, and that Brown was not entitled to delay his execution date to conduct that investigation now. During a May 20, 2022 hearing that the Houston Chronicle described as “heated,” Reiss argued that setting an execution date is a ministerial duty over which the court had no discretion and loudly talked over Judge Cornello when she ruled against him. “I am steaming mad,” Reiss said. Cornelio admonished Reiss to sit down, telling him “That is no excuse to raise your voice.”

The ruling enables Brown to obtain representation by the state Office of Capital and Forensic Writs, a public defender organization with experience in death penalty cases, to investigate his intellectual disability claim. The Harris County District Attorney’s office is expected to appeal Judge Cornello’s ruling.

The Controversy Over the Ramirez Death Warrant

The controversy over John Ramirez’s death warrant highlights resistance local reform prosecutors are facing to their policies both from within their offices and from state officials.

Gonzalez, a former defense attorney, was elected in 2016 on a platform of criminal justice reform. In response to an application filed by his office, the Nueces County District Court issued an order on April 12, 2022, setting an execution date for Ramirez. Two days later, citing his “ firm belief that the death penalty is unethical and should not be imposed on Mr. Ramirez or any other person” while he is Nueces County District Attorney, Gonzalez filed a motion to withdraw the death warrant. “The Assistant District Attorney who most recently moved for an execution date in this cause was not aware of my desire in this matter and did not consult me prior to moving for an execution date,” Gonzalez wrote.

The court has not taken any action on the Gonzalez’s motion, and on May 20, 2022, the Texas Attorney General’s office submitted a letter to the court arguing that Gonzalez’s ethical objection to the death penalty was not a valid reason to stop the execution. Edward Marshall, chief of the attorney general office’s Criminal Appeals Division, argued that once the death warrant had issued, the District Court did not have the authority to it. Marshall offered to take the case by special appointment “If District Attorney Gonzalez does not wish to continue in this proceeding, the undersigned is willing to step in to represent the State pro tem,” he wrote.