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March 5, 2010

State judge in Texas declares the state's death penalty unconstitutional based on innocence concerns

The Houston Chronicle has this new piece, which is headlined "Judge declares death penalty unconstitutional," reporting on a remarkable new development in the operation of the death penalty in Texas. Here are the basics:

A Houston judge on Thursday granted a pretrial motion declaring the death penalty unconstitutional, saying he believes innocent people have been executed. “Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It's safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society's standard for decency and fairness. “Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don't think society's mindset is that way now.”

The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty was unconstitutional for their client, John Edward Green Jr. Loper said he and Keirnan were pleased by Fine's ruling, which will be appealed and almost certainly reversed....

If Fine's ruling were to be upheld, it effectively would take away the option of the death penalty in Green's case.... Green, 23, is accused of fatally shooting a Houston woman and wounding her sister on June 16, 2008. Harris County District Attorney Pat Lykos issued a statement disagreeing with Fine's ruling. “Words are inadequate to describe the Office's disappointment and dismay with this ruling; sadly it will delay justice for the victims and their families,” the statement said. “We will pursue all remedies.”

The statement noted that the Texas Court of Criminal Appeals and other appellate courts consistently have rejected the same arguments. “We respectfully, but vigorously, disagree with the trial judge's ruling, as it has no basis in law or in fact,” Lykos wrote.

On Thursday, Texas Attorney General Greg Abbott's office issued a news release calling Fine's ruling “an act of unabashed judicial activism.” Abbott offered to help the Harris County District Attorney's Office appeal the decision. Fine, the statement said, ignored U.S. Supreme Court precedent in granting the motion.

March 5, 2010 at 10:54 AM | Permalink


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"Fine, a judicial maverick, was elected in the 2008 **Democratic near-sweep** of Harris County's benches. ***A recovering cocaine addict***, the judge came under fire last year for questioning a victim during the punishment phase of a rape trial."


But seriously, what do you expect with partisan elections? You get republican hacks in republican districts and democratic hacks in democratic districts.

Posted by: . | Mar 5, 2010 11:21:52 AM

Sorry, have to agree with Scalia here, due process is no guarantee against mistakes in either direction. If taken to its logical conclusion this sort of ruling would lead to no punishment whatsoever being legal because the system can't rid itself of all mistakes. Such mistakes are a political rather than legal matter and should only be cognizable as such.

I also wonder what the process for political removal of a judge is in Texas, such a lawless ruling should be very close to, if not over, that line. At the very least I would hope whatever court overturns this decision makes sure he has no further involvement with this case.

Posted by: Soronel Haetir | Mar 5, 2010 11:29:47 AM

Sorry, have to disagree with the Hater. Is the ruling really "lawless" or is it that you don't like it. All actors in the criminal justice system have a stake in ridding the system of mistakes. To think that mistakes can only be ameiliorated by the political process is ludicrous. Remember all prosecutors, judges, cops and defense lawyers took an oath to uphold and defend the constitution.

Posted by: k | Mar 5, 2010 11:38:52 AM

Posted by: k | Mar 5, 2010 11:38:52 AM

Given that higher courts have consistently held that there is no right to be free from mistaken punishment so long as due process is afforded, yes, I would say such a ruling is in fact lawless.

My preference would be that there would be some more regularized process for challenging the fact of conviction after direct review has run, unlike modern collateral jurisprudence which is mostly aimed at showing due process (as currently defined) was not actually afforded.

That does not, however, give lower court judges license to ignore the binding authority superior court rulings have upon their decision making processes and possible outcomes.

Posted by: Soronel Haetir | Mar 5, 2010 12:04:50 PM

As the former Lord Chief Justice of England and Wales, Lord Woolf, observed in a "mock" trial entitled "This Court charges the United States death penalty with perverting the course of Justice", the question of whether innocent men have likely been executed in the US is solved by the application of commonsense. How refreshing to see a Judge in Texas admit the same, and have the courage to say it publicly. The fact that your own "elite" judiciary fail to apply such commonsense to their rulings is only to be regretted. The mock trial mentioned above took place in London and was attended by and contributed to as witnesses by Kent Scheidegger, Paul Cassell and Robert Blecker - all for the defense; and Nicolas Trenticosta, Rev. Cathy Harrington (of MVFR), and Professor Julian Killingley (UK)- for the prosecution. Lord Woolf was joined as presiding "Judges" by Sir Louis Blom-Cooper QC and Geoffrey Robertson QC. The audience or "jury" was made up substantially of law students and interested others, and the event was organized by AMICUS, the UK-based legal charity. The indictment was carried with an overwhelming majority. No doubt few of you will be discomforted ... but it should give reason for individual pause and further thought.

Posted by: peter | Mar 5, 2010 12:33:34 PM

Given that the vast majority of the innocent have been freed from prison terms from a few years to LWOP, couldn't this argument be used to declare incarceration unconstitutional?

Posted by: MikeinCT | Mar 5, 2010 12:41:40 PM

An innocent person wrongly convicted of murder has a much better chance of leaving prison alive if he is sentenced to death than if he is sentenced to LWOP.

While an innocent person sentenced to LWOP would have a longer time to prove his innocence, in the vast majority of cases he would not have the resources. A person sentenced to death has a right to state-paid counsel for collateral review in nearly all states and federally-paid counsel for federal habeas in all cases. Life prisoners get counsel for collateral review on an irregular basis.

That is one of the reasons that life imprisonment costs more than the death penalty. We are willing to tolerate a much higher risk that an innocent person will die in prison under an LWOP sentence. To my mind, one is just as bad as the other.

Posted by: Kent Scheidegger | Mar 5, 2010 1:03:59 PM

Oh, and the foregone "verdict" in the London event is no cause for pause at all. The audience consisted of people who paid $100 to attend a fund-raiser for an death penalty defense organization. The purpose of my participation, along with Paul's and Robert's, was to present our side of the argument to people who may have heard nothing but one side. The fact we got a significant number of votes constitutes "beating the spread."

Posted by: Kent Scheidegger | Mar 5, 2010 1:08:58 PM

Okay, Kent, then let's extend post-conviction resources to those sentenced to LWOP.

Posted by: DEJ | Mar 5, 2010 1:11:25 PM

Reply to "."

Of course, the problem is that republicans have benefited from this name calling for years. The basic reality is that you can't put the genie back into the bottle, grin, and then pretend nothing has happened. If nothing else the Civil War taught us that. The only way out is through. Only when the republican party is destroyed as an organizational reality can there be any hope of justice.

Posted by: Daniel | Mar 5, 2010 1:24:42 PM

sorel i have to disagree "being FACTUALY innocent" should TRUMP EVERTING even a politician or a judge SHOULD KNOW THT.

Posted by: rodsmith3510 | Mar 5, 2010 1:32:02 PM

"Okay, Kent, then let's extend post-conviction resources to those sentenced to LWOP."

He's not replying because he's busy filing an amicus to an appeal of a 9th circuit ruling giving that right.


Posted by: . | Mar 5, 2010 1:35:17 PM

Hi Kent
It was interesting to see and hear you "in the flesh". :)
Just to correct a few of your observations, the largely student audience paid half of the standard ticket price; they were gaining CPD points towards their law courses by attendance; and could be better described as uncommitted intelligent free thinkers than the image you prefer to imply as anti-death penalty supporters - though of course some others of us were. You make a strange argument here that innocence is better proved by facing the threat of death than confronting a life sentence. But you well know that the indictment against the death penalty is that it is precisely because the opportunity of proof of innocence is inadequately accommodated through the disastrously flawed legal process - from pre-trial to post-conviction - that Justice simply does not register! The law should focus on real and immediate life, and not the hypothetic risks for further criminal act, which should be managed by other means. If you want to play at foreseeing the future you are in the wrong profession. As for your cost assessments, they are as unreliable as the statistics you presented at the "court".

Posted by: peter | Mar 5, 2010 1:36:34 PM

Oh yeah, sexxxy pic of said judge (sfw)


Posted by: . | Mar 5, 2010 1:45:32 PM

peter --

Do you think it might have more forthcoming to tell us from the getgo that at least half the audience had paid $100 or more to an abolitionist organization rather than blandly describing AMICUS as simply a "legal charity"?

Posted by: Bill Otis | Mar 5, 2010 3:42:19 PM

Doug, I've not looked at this at all personally, but FWIW some Texas lawyers I respect are saying that the Houston Chronicle seriously mischaracterized the decision. See this discussion, e.g..

Posted by: Gritsforbreakfast | Mar 5, 2010 3:57:03 PM

Thank God for your enemies, like Judge Fine.

"District Judge Kevin Fine said[,] 'It's safe to assume we execute innocent people.'”

Ummm, excuse me judge, but isn't it the job of trial courts to FIND facts based on specific evidence rather than ASSUME them?

"Fine said trial level judges are gatekeepers of society's standard for decency and fairness."

What tripe. LEGISLATURES are the arbiters of society's standards, not judges. But assuming arguendo that Fine is correct, I trust he'll be suitably deferential when the trial judge across the hall considers the same motion and reaches the opposite holding.

"'Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?' he said. 'I don't think society's mindset is that way now.'”

Of course he has no earthly clue about what "society's mindset" is now (although an excellent clue about what HIS mindset is, namely, that he prejudged the issue, which should have brought about his recusal. And would have, if he were honest).

Still, if he actually were interested in "society's mindset," he could have referred to the recent (October 2009) Gallup poll, which found (a) that a whopping 59% believe that a factually innocent person has been executed in the last five years, but (b) STILL support the death penalty by better than 2-1. Indeed, almost half said the death penalty wasn't imposed often enough.

Rulings that are so blatantly driven by ideology are a Godsend to the pro-DP side, because they illustrate in undeniable terms the arrogance and utter disregard for precedent behind the abolitionist movement. The pro-DP side shoud take up a collection to send Judge Fine on a speaking tour. This guy is the best thing for us since the Roger Keith Coleman innocence hoax.

Posted by: Bill Otis | Mar 5, 2010 4:10:54 PM

So, I said that the audience was people who paid $100 for a fund-raiser for a death penalty defense organization, and lower-case peter says, in essence, Aha! Half of them were people who only paid $50 for a fund-raiser for a death penalty defense organization! And he actually thinks he has scored a point.

DEJ writes, "Okay, Kent, then let's extend post-conviction resources to those sentenced to LWOP."

I'd be glad to support that as part of a bill that limits collateral review to persons with a substantial claim of actual innocence, similar to the 1970 Friendly proposal.

Posted by: Kent Scheidegger | Mar 5, 2010 4:56:41 PM

Kent - Obviously I have, since, as I pointed out, the motivation of the students for attendance was not the fund-raising but a mixture of self-interest (in gaining CPD points) and general interest in a major human rights and legal issue. You took the issue seriously (or you would not have attended), and so did they in following an interesting and lively cross examination of witnesses. Your apparent attempt now to dismiss the event as simply a fund-raising one with no serious intent or outcome belies both your attendance and there's. The students deserve a little more respect than that, as do all those who participated. However, I agree you were never likely to win the argument. That said, the event was an example of the quality of open debate that should be taking place in the US. We were happy to be challenged by your views and those of your colleagues, but were largely unmoved by them. You, or at least other readers of this blog, should be encouraged to analyze why in terms much deeper than your own responses indicate.

Posted by: peter | Mar 5, 2010 6:17:50 PM

"Your apparent attempt now to dismiss the event...."

That is "apparent" only to one who makes no effort to understand what I am saying, as I have made no such attempt. I do not dismiss the event. I am saying now what I said before the event on my blog. The "verdict" was preordained because of the manner of selection of the "jury."

The fact that the students may have been motivated in part by getting credits for attendance does not alter the fact that by choosing to attend this event, rather than acquiring their credits in some other manner, they were supporting a death penalty defense organization. That method of selection is not going to produce a representative sample of even the student population, much less a "cross-section of the community" as a whole.

"However, I agree you were never likely to win the argument."

Agree with whom? In my view, we were not only likely to win the argument but did win the argument. Hopefully, the full video will be on the web soon, and a wider audience can come to its own conclusion.

Posted by: Kent Scheidegger | Mar 5, 2010 8:23:51 PM

Why is some low error rate in the death penalty constitutionally intolerable, compared to the far more lethal error rates of many other activities, transportation, friendly fire in war, medicine, pools, mountain climbing, skiing, football, movie production, construction, and all other useful human activity? Most of the dead victims have done nothing wrong, or made a small innocent mistake.

Here is why. The murderer generates lawyer fees for government sinecure, make work jobs.

Posted by: Supremacy Claus | Mar 5, 2010 11:29:34 PM

Kent - I am happy to hear that a video is to be made available. How useful it will be will of course depend on its completeness so I will reserve judgment on that. Your observations concerning the audience or jury can of course be leveled at any gathering where attendance is either voluntary, or hand-picked by membership. At least in this case attendance was entirely voluntary, if with incentive outside of the outcome. My point was simply that this particular audience, with its overwhelming law student compliment, was as intellectually independent as you are ever likely to get.
The difference between us is the fundamental one that in British law, no risk of the taking by the state of innocent life is acceptable. You are prepared to balance this risk, without ever admitting the likely actual loss in your system, against the potential of further acts of murder. You turn a blind eye to evidence across the world, even in your neighboring state of Canada, that such risks are very low with adequate management systems in place - even to the extent perhaps of being less than the risk of murder in society generally. No person should be put at risk of "sacrifice" for such a notion which can only be the subject of fortune-telling .. for which neither you nor I are qualified.
Your claims to have "won the argument" will I am sure have raised the eyebrows of several hundred here in London. You obviously view the jury system as an inconvenience unless personally handpicked (and predisposed to the acceptance of execution).

Posted by: peter | Mar 6, 2010 4:16:36 AM

Judge Fine was injudicious and irresponsible.

Judge Fine based his ruling that the death penalty was unconstitutional upon innocents executed. It also appears that he just accepted defense attorney claims without fact checking them.

The 200 released number used by Judge Fine appears to be an inaccurate counting of DNA freed cases, as per the Innocence Project, for the entire prison population, not just death row. I suspect the judge received that inaccurate number from defense counsel.

The 200 number is nearly irrelevant to death row. 9 inmates have been released from death row because of DNA exclusion. It appears niether Judge Fine nor defense counsel fact checked.

The decision appears similar to the one made by New York Federal District Court Judge Jed Rakoff in the Quinones case, whereby Rakoff found the federal death penalty statute unconstitutional. I stated, then, that it was an idiotic decision which would quickly be overturned. It was. At least Rakoff fact checked.

There is no proof of an innocent executed in the US, at least since 1900.

In the modern death penalty era, possibly, 25 inmates have been released from death row based upon actual innocence.

25 not 200.

That is about 0.3% of those sentenced to death since 1973.

Likely, there is not a more accurate sanction when it comes to convicting the actually guilty and freeing the actually innocent.

In addition, innocents are more protected with the death penalty than with the lesser sanction of life without parole.

"The Death Penalty: More Protection for Innocents"

The 130 (now 139) death row "innocents" scam

"The Innocent Executed: Deception & Death Penalty Opponents"

Sincerely, Dudley Sharp
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Posted by: Dudley Sharp | Mar 6, 2010 5:50:16 AM


As you are familiar with the Amicus event, you likley know that the original case was "Charging the death penalty with 'conspiracy to defraud'"

I think the reason that the charge changed from fraud to "perverting the course of justice", was that fraud must be based upon facts and the prosecution would surely lose on the facts. I think they realized that, thus changing the charge.

Properly, if the charge was fraud, then the prosecution and defnece would have to switch chairs, which would have been somewhat embarrasing for Amicus.

The change to perversion was well thought. Perversion can be based solely on opinion, therefore favouring the prosecution, which knew the crowd would be disproportionately anti death penalty.

Knowing both the prosecution and the defence, I strongly suspect that a balanced, independent jury would have found for the defence.

However, I will wait to see the Guardian tape. Hopefully it will not be edited

Posted by: Dudley Sharp | Mar 6, 2010 7:29:15 AM

peter --

If, in a death penalty case, half the jury was composed of persons who had contrubuted good money to a pro-death penalty organization, would you regard that jury as impartial?

I suspect you'd be screaming bloody murder (so to speak) that the jury couldn't POSSIBLY be viewed as impartial. But I will stand to be corrected if your answer is different from what I expect.

One way or the other, it was a good deal less than forthcoming for you initially to introduce AMICUS as merely a "legal charity" without disclosing the real story with it.

Posted by: Bill Otis | Mar 6, 2010 10:38:47 AM

I was attending the event as a subscriber member of Amicus along with my nephew, who is recently qualified with a degree in law and the full Law Society examinations. I was not privy to the development details of the indictment, though I knew from early publicity I seem recall, that there had been the possibility raised of yourself attending as a witness. I won't enquire further how that changed :)
As you know, the terms of an indictment are determined by the prosecution. In capital cases in the US for example, the prosecutor has the absolute discretion to go for a full death penalty trial, life with or without parole, or the latter as a result of the grant of a plea bargain. It is therefore rather rich to complain at the determination of the indictment in the mock trial held in London. As in a real trial, the jury were instructed to put aside predispositions of pro or anti death penalty belief in favor of an assessment of the evidence yielded by the jury bundle (selected documentation chosen by each witness) and the cross-examination conducted by two very experienced and able QC's - Roy Amlot (prosecution) and Dorian Lovell-Pank (defence). The jury was also aided by words and direction from the bench as is usual, at least in British courts.
The quality therefore of all involved, together with the largely student "jury", ensured as far as possible outside of a real court, that the proceedings were fair and that the "verdict" reflected the arguments presented.
The aims of Amicus in organizing the event were well stated in the message given by the Amicus trustees in the jury bundle: to raise awareness of potential abuses of defendants' rights [through the death penalty process in the US]. The event did just that with strong representation of both sides of the argument. I have already commented on the outcome. It will be welcomed by Amicus, I'm sure, if the same debate now takes place in the wider community of the US itself. In a sense, the verdict in London is unimportant except as an indicator of the thinking of reasonable, logical, well qualified persons in the UK and other nations where abolishment has already occurred. But as was also pointed out by the bench, International opinion and trends should impact on your dp debate just as it does in most other fields of culture, business and other areas of law. You certainly expect others to listen to you.

Posted by: peter | Mar 6, 2010 2:05:32 PM

Bill: "If, in a death penalty case, half the jury was composed of persons who had contrubuted good money to a pro-death penalty organization, would you regard that jury as impartial?"

No less impartial than, say, almost any American jury pool, most of which are comprised mostly (half or more) of folks raised from birth to be respectful of and obedient to authority, to view cops and agents and prosecutors as society's white knights and to believe (deeply in their heart of hearts) that the authorities just don't charge innocent people with crimes.

So I figure Kent had about as much chance of persuading the London jurors of the virtues of the DP as any defense attorney in America has of convincing jurors a client is innocent.

Posted by: John K | Mar 6, 2010 3:21:14 PM

John K --

Glad to see you back online. Before proceeding with this question, there is unfinished business from a prior one:

"A number of posters, including me, dodged your...loaded question [whether the cost savings from having a relatively short prison sentence for Gardner were worth the price, to wit, that he was out on the street to rape and murder Chelsea King]; You dodged my straight-foward question....Gardner entered prison a molestor and came out an accused rapist/killer. So again, who's to say his prison experience wasn't a factor in the transition?"

No one.

There's your direct answer. Where's mine?

Of course there's more to it. First, you suggest no factual basis whatever for believing that Gardner's prison experience made him a rapist/killer -- zip, nada, none. Nor is there any even as a general matter; indeed what we are told here is that the recidivism rate for sex offenders is LOWER than for the average offender after his release.

Second, your implicit suggestion (that prison increases rather than lowers crime) would lead, not to lesser prison sentences, but none at all.

Finally, I quoted accurately your suggestion for "treatment for those whose actions seem to stem more from innate impulses than evil intent." You made this remark in the context specifically of this Gardner case thread, implying (though not stating directly) that Gardner was or could plausibly be seen as such a person -- i.e., a person who acted from innate impulses rather than evil intent. But if that were not enough, I referred directly to your comment itself. This enabled anyone in doubt to make up his own mind about whether my quotation from you was accurate.

Now, again, having Gardner serve a relatively short sentence for his first sex crime saved money that would have been needed to fund a longer one. Was it worth it?

Posted by: Bill Otis | Mar 6, 2010 7:31:17 PM

Bill, I’m about to concede a point, but first I must reject your premise that five years is a "relatively short sentence.”

Particularly so in a case like Gardner’s where the need for incapacitation wasn’t as obvious initially as it appears now in hindsight.

Five days or weeks or months (let alone years) in drab, noisy, tedious, crowded, humiliating, dangerous confines...locked away from the people and things I care about...sounds to me like a circle of hell.

Then too, as others have noted, the maximum 11-year sentence, minus good-behavior time, would have put Gardner on the street in time to do what he is currently accused of doing, which pretty much disposes of your insinuation Chelsea King would still be alive but for Gardner's reduced sentence.

But rather than take the bait of your question and weigh the murder of a teen-age girl against across-the-board draconian sentences for every mope convicted for any of a number of actions that might fall under the heading of molestation, I'll answer this way:

In the narrow context of your question, no, of course not.

Chelsea King’s death can’t be justified by however much money the state saved on the four or five additional years Gardner didn't spend in a cell.

But neither should her death inspire hysterical, ham-handed sentencing trends that keep hundreds or thousands of inmates behind bars far longer than necessary…based on an apparent aberration.

Still I’ll give you this, Bill. A number of folks screwed up big time in letting Gardner slip through as a garden-variety molester. Because the more we learn about him the more it appears he’s a genuine monster.

You also were right to note the authorities should have listened to the psychiatrist who warned them about Gardner. Can’t help but wonder, though, if he is one of those police shrinks who routinely recommends sentences that seem unduly long (30 years in Gardner's case)... and now has cried wolf once too often.

Posted by: John K | Mar 7, 2010 12:53:32 PM

Prof, The Judge has weak knees:


"Houston judge backs off ruling that death penalty unconstitutional"

Kevin Fine knows that he has to work at the Harris County Courthouse once he loses his bench in about two years - and thus has come to his senses.

Posted by: Ferris Bueller | Mar 9, 2010 2:02:15 PM


I think you, intentionally, missed the point.

The prosection had to change the charge.

The original and long time charge leading up to the Amicus event was:

"Charging the death penalty with 'conspiracy to defraud'".

At the last moments, in this long planned event, Amicus changed the charge to "The US Death Penalty is charged with 'Perverting the Course of Justice' ".

The reasons that the charge changed from fraud to "perverting the course of justice", was that fraud must be based upon facts and evidence and the prosecution would surely lose.

As the time drew close to the mock trial, AMICUS and the prosecution, through all the defense statements, as well as other material, realized that the facts supported that the prosecution/anti death penalty side was the fraudulent party.

They had to change the charge.

"Perversion" is based solely on opinion, and needs no basis in fact or evidence, therefore saving the prosecution, which knew the crowd would be disproportionately anti death penalty and could base their vote solely on opinion, regardles of the evidence and the facts, which supported the defense.

Posted by: Dudley Sharp | Mar 11, 2010 2:04:07 PM


I was originally asked to be a witness at AMICUS and was listed, wrongly, as a confirmed witness. I never accepted because my schedule did not allow it.

Instead, I assisted AMICUS in putting together the defense team.

Posted by: Dudley Sharp | Mar 12, 2010 7:47:30 AM

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