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March 10, 2010

Texas judge reconsidering declaration that state's death penalty is unconstitutional

This new AP piece, which is headlined "Texas judge rescinds anti-death penalty ruling," provides the latest news concerning a Texas capital case that has cause quite a stir after a notable ruling by a state judge last week.  Here are the details:

A Texas judge criticized for declaring the death penalty unconstitutional took back his controversial ruling Tuesday but scheduled a hearing for next month to hear evidence on the issue.

State District Judge Kevin Fine said he wants more information before making a final decision about whether the state's death penalty statute allows for the possible execution of an innocent person. Fine is a judge in Harris County, which sends more inmates to death row than any other county in the nation.

During a court hearing Tuesday, Fine rescinded the ruling he made last week in granting a pretrial motion in the capital murder case of John Edward Green Jr., accused of fatally shooting a Houston woman and wounding her sister during a June 2008 robbery. Green's attorneys argued Texas' death penalty statute violates their client's right to due process of law under the 5th Amendment because hundreds of innocent people nationwide have been convicted, sent to death row and later exonerated.

Fine took back his ruling but asked Harris County prosecutors and defense attorneys to submit motions on the due process issue by April 12. Fine will then have an evidentiary hearing April 27, when testimony on whether innocent people have been executed in Texas is set to be presented.

Casey Keirnan, one of Green's defense attorneys, said the case is "headed in the exact direction we want it to go." "This is the very first legal proceeding where a court is going to look into the issue as to whether or not we have executed innocent people in Texas," Keirnan said. "It's now taken on a life I've never dreamed it would. It's so amazing to me."

Keirnan said he and co-counsel Robert Loper still are determining whom they might call to testify at next month's hearing. But he said it might include officials connected to the case of Cameron Todd Willingham, whose 2004 execution for the deaths of his three daughters in a 1991 house fire near Corsicana is now being questioned.

Prosecutor Kari Allen was pleased Fine rescinded his order. "However, it is unfortunate that we will not be able to proceed more quickly with the actual trial of the case," she said.

March 10, 2010 at 02:18 AM | Permalink


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The AP report should be corrected in one respect. While Harris had a notorious reputation for imposing the death penalty until a couple of years ago, the following is significant -
"It has, in fact, been more than two years since any Harris County jury has imposed a death sentence. The Quintero case, says Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty (TCADP) was a graphic demonstration that Texas is no longer ”so reliant on the death penalty.” Statistics bear that out. Last year, the number of new death sentences handed down in Texas dropped to nine, the lowest number since the state revived the death penalty in 1976, and down from nearly 30 in 2003. That’s a remarkable contrast to the peak years in the late 1990s, when as many as 48 people a year would be sent to death row, according to the TCADP’s annual report on the state of Texas’ death penalty."
(for source, click on my name)
What remains of concern is the fate of the many inmates that are a legacy of those prior immoderate years, and the probable innocence of at least some, and the undoubted injustice in the use of the penalty for others.
Whatever else is found in the hearing to come, it is certain that the "practice" of the death penalty in Texas was and continues to be unconstitutional.

Posted by: peter | Mar 10, 2010 4:11:07 AM

Res judicata applies to the rest of us, but not if disadvantageous to the judge. He needs to resign, if his first decision was not as well thought out as it should have been.

Posted by: Supremacy Claus | Mar 10, 2010 9:05:46 AM

If we accept your position that every trial judge who gets it wrong or partially wrong should resign, would that mean that we don't need a court of appeals?

Posted by: k | Mar 10, 2010 9:19:32 AM

Judge Fine is making a fool of himself. As an example of a man executed and later declared innocent, Fine references the Tim Cole case. For those of you unfamiliar with it, Cole was charged with rape, not murder, and died in prison of natural causes.

Posted by: effie | Mar 10, 2010 10:06:15 AM

First, judicial review violates Article I Section 1 granting the legislature the power to make laws, and its state equivalents. So he is in insurrection against two constitutions.

Second, the case starting judicial review, Marbury v Madison is filled with misconduct, and should be void for illegality. Here is the list:


Third, appellate courts do not correct mistakes in fact, as they do elsewhere, so the innocence argument is beyond their jurisdiction.

Fourth, this does not appear to be a mistake. It appears to be wrongful decision, reversed only after public anger.

I ask you whether you believe he is still qualified to stay on the bench.

Posted by: Supremacy Claus | Mar 10, 2010 4:37:20 PM

Once again SC you fail to understand that the United States is not a democracy. The term democracy is not used in the Constitution or Declaraion of Independence or in any of the constitutions of the 50 states.

Democracy is governed by the rule of the majority i.e., a lynch mob. As Sam Adams pointed out democracy never lasts long. "It soon wastes, exhausts and murders itself." Democracy is not a stable form of government it has always devolved into an oligarchy. Look at Greece and Rome.

A Republic is governed by the rule of law i.e., in criminal it takes a unanimous jury not a majority to take away the rights of an individual. The essence of freedom is the proper limitation of government. As happened to Rome a Republic can devolve into a democracy on its way to oligarchy.

You desire the tyranny of the majority which will turn into the tyranny of the few. I prefer the tyranny of the law--it applies to the majority and the chosen few.

Henceforth you shall be known as "Oligarch." Continue to conduct yourself accordingly.

Posted by: K | Mar 10, 2010 9:15:23 PM

K --

"A Republic is governed by the rule of law i.e., in criminal it takes a unanimous jury not a majority to take away the rights of an individual."

It might be wise to look up some law before making statements like that.

The great majority of states, but not all of them, require unanimous verdicts in criminal cases. But in Duncan v. Louisiana, 406 U.S. 356 (1972), the Supreme Court found non-unanimous (9 out of 12) jury verdicts in state criminal cases to be constitutional.

P.S. If as you say rule by the majority is rule by a lynch mob, rule by the minority is rule by a less representative lynch mob.

Posted by: Bill Otis | Mar 10, 2010 10:19:35 PM

The judiciary and even the Constitution itself have long been considered anti-majoritarian by most reasoned observers. For a person who supposes to be an (former) officer of the court to be unaware of these commonly-held characterizations reveals much about the personal belief system of those who seek to put their fellow humans in cages. The mob can always be trusted to demonize the "other."

Posted by: Mark # 1 | Mar 11, 2010 1:33:51 AM

Hey Marky --

The Constitution and its provisions were adopted by majority vote, and it was ratified by a majority vote of the states (indeed, a supermajority). And Supreme Court decisons are rendered by majority vote. Did you miss that?

Are you really as ideologically possessed and myopic as you seem? Or are you making a special effort?

Posted by: Bill Otis | Mar 11, 2010 3:06:08 AM

Whatever one's philosophy, can we agree that the rule of law is better than Fallujah? If so, then the Court should begin to obey the constitution or lobby to amend it. Law making is a power of the legislature. The striking down of a law in judicial review is repeal of a law, and law making. Such lawless insurrection has also been catastrophic. One decision caused the Civil War. Another remains disruptive today, Roe v Wade.

Posted by: Supremacy Claus | Mar 11, 2010 4:19:37 AM

Marky --

Just to give you a taste of how thoroughly majoritarian and political the adoption of the Constitution was, I give you this summary by the brilliant Constitutional historian, R.B. Bernstein:

"The struggle for ratification of the Constitution was both a direct, unabashed contest for votes and a complex, impressive argument about politics and constitutional theory. It was the first time that the people of a nation freely determined their form of government. It was also the first national political controversy in American history; the people of all thirteen states for the first time debated and decided the same issue. Ratification was a catalyst for the creation of a national political community, transforming the ways Americans thought of themselves and encouraging the growth and popularity of national loyalties. The political discourse generated by the ratification controversy continues to this day within the matrix of the Constitution; the argument in 1787-1788 is one of the finest chapters of that discourse."

Posted by: Bill Otis | Mar 11, 2010 4:31:55 AM

Judge Fine is not truly backing off or rescinding his finding that the Texas death penalty statute is unconstitutional. It is a tactical withdrawal to cover his ass.

I suspect it won't matter what happens in the April 27th hearing. Judge Fine will repeat his original error/finding.

Judge Fine realized that he looked like a fool and/or an idiot because he was wrong on the facts and the law in his first two episodes. (1)

The judge, now, says ". . . he still wants more information on whether the state’s death penalty statute is unconstitutional because it allows for the possible execution of an innocent person." Thus, the hearing.

To repeat, Judge Fine there is no law or opinion that finds that due process must be infallible. Since the first incarcerations and the first executions, man has always known that there was always the "possibility" of actual innocents being imprisoned and/or executed and that, in both cases, due process may not reveal that actual innocence prior to their deaths, or ever.

In other words, the judge has already made up his mind that due process must be infallible and no matter what occurs in the hearing, he has already decided to support his original ruling, not matter how fallible his understanding of the facts and the law.

That is also why Judge Fine is also in error in saying that he is not challenging the constitutionality of the death penalty, but instead that the statute is unconstitutional. No judge, what you are doing, as if you don't know it, is challenging the constitutionality of due process that is not perfect.

The April hearing will welcome in a bunch of anti death penalty legal specialists who will try to cover Judge Fine's rear.

It matters not a wit what the state/prosecution side will say to contradict the anti death penalty cabal, inclusive of the judge. Judge Fine will repeat his original error/finding and then he will be overturned. He just wants the show, first.

The king's new clothes.

1) a) "Judge Fine was injudicious and irresponsible", Dudley Sharp, 3/5/10 and
b) "Judge's Clarification Puts Him in More Hot Water: Texas Death Penalty Ruled Unconstitutional", Dudley Sharp, 3/7/10

both at www.opposingviews.com/i/texas-death-penalty-ruled-unconstitutional-appeal-likely

Posted by: Dudley Sharp | Mar 11, 2010 11:01:47 AM

SC you were going great till this bit of stupidity!

"Third, appellate courts do not correct mistakes in fact, as they do elsewhere, so the innocence argument is beyond their jurisdiction."

SORRY but INNOCENCE is EVERYONE'S jurisdiction! ANYONE who knows an INNOCENT persion is doing time or facing execution is DUTY BOUND TO STOP IT!

Posted by: rodsmith | Mar 11, 2010 1:43:05 PM

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