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January 12, 2011

Texas Court of Criminal Appeals calls permanent halt to trial court capital hearing

As detailed in this local article, the "highest criminal court in Texas this morning permanently halted a Houston judge's hearing on the constitutionality of the state's procedures surrounding the death penalty." Here's more of the basics:

State District Judge Kevin Fine began what was expected to be a two-week hearing about the death penalty last month after he declared the death penalty unconstitutional in March. He rescinded his March ruling and decided to hear evidence before making his decision.

Two days into the December hearing, the Court of Criminal Appeals agreed to reconsider a motion by the Harris County District Attorney's Office to stop the hearing and halted the proceedings until further notice.

The decision, released this morning, agrees with the district attorney's office that there is no basis under Texas law to conduct a pretrial evidentiary hearing to determine the constitutionality of a law.

The decision of the Texas CCA is available at this link, and it makes for an interesting read.

January 12, 2011 at 02:22 PM | Permalink


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I think Michael Landauer's comment (Dallas News Editor)has it about right:
"The Texas Court of Criminal Appeals seems to have gotten this one right. Of course, the CCA won't allow challenges in the appeals process, either, I'm sure. Nor will the CCA ever allow the appeals process to be used for truth-finding. The appeals process is a joke in Texas, a search for clerical errors and typos to be followed by the perfunctory rulings that the errors did not affect the outcome of the trial."
He couldn't be more correct.
So too are the lawyers for Green, as argued here in the same blog entry.
(click on my name)

Posted by: peter | Jan 12, 2011 3:25:51 PM

Does anyone here truly think that Kevin Fine had not pre-judged the outcome?

Having a death penalty hearing before Judge Fine would be roughly the equivalent of having a hearing on the wisdom of the Iraq War before Code Pink.

Posted by: Bill Otis | Jan 12, 2011 3:56:47 PM

Bill Otis on the perils of prejudging ... Pot, meet kettle: I think you'll find you have a lot in common.

It's a fair bet Otis know nothing of Fine and never heard of him before this case.

Posted by: Gritsforbreakfast | Jan 12, 2011 7:22:35 PM

Grits --

Since you didn't answer the question, I'll ask it again: Do you doubt that Judge Fine pre-judged the outcome?

Posted by: Bill Otis | Jan 13, 2011 4:49:44 PM

I have no idea, but I know for certain you did, Bill.

Posted by: Gritsforbreakfast | Jan 13, 2011 7:39:50 PM

Grits --

Actually, you have an excellent idea whether Fine prejudged it, unless you are being willfully blind.

It is true that I have judged the issue, but (1) I have not PREjudged it, and (2) I am not a judge, and thus not required to recuse myself from questions about which I have formed an opinion. I am an adjunct professor of law at Georgetown, and part of my job is to research legal questions. The supposed execution of the innocent is one I have researched. The research has disclosed that no neutral body -- a court or anything else -- has determined that a factually innocent person has been exectued in this country for at least fifty years.

Posted by: Bill Otis | Jan 13, 2011 11:52:34 PM

The only "neutral body" that ever looked into the Campden Wonder was a jury that returned three verdicts of guilty, but even the most ardent death-penalty supporter would have to concede that John, Joan and Richard Perry did not murder Edward Harrison. Perhaps the standard of a "neutral body" determining a factually innocent person has been executed needs some revising.

Posted by: Paul | Jan 14, 2011 9:44:07 AM

Paul --

I was thinking of executions in a period somewhat more recent than 1660. Proceedings that predated the Constitution -- indeed the United States itself -- by roughly 130 years probably do not call into question my statement that no neutral body has determined that a factually innocent person has been executed in this country for at least fifty years.

Posted by: Bill Otis | Jan 14, 2011 12:38:44 PM

Bill, you miss my point. Your proposed standard to determine if an innocent person has been executed is whether "a neutral body has determined that a factually innocent person has been executed." Campden fails that standard, even though it is clear three innocent people were executed.

You can dismiss Campden as ancient, inapplicable or in some way inconvenient to your argument, but if your standard for determining the innocence of an executed person excludes a case where we know, beyond any shadow of a doubt, that three innocent people were executed then your standard is seriously flawed. In more concrete terms, you can say that no neutral body has ever found Cameron Todd Willingham innocent, so therefore he is guilty; I would respond that no neutral body ever found John Perry innocent, but he is still innocent.

Posted by: Paul | Jan 14, 2011 1:03:13 PM

Paul --

The notion that results from the pre-Constitutional era of witchcraft trials tell us anything about the likelihood today of executing an innocent person is beyond preposterous.

You abolitionists gripe about Willingham with all the indignation and certainty you used when griping about Roger Keith Coleman. But the Coleman innocence claim was a hoax and so is Willingham's. The truth is exactly what I said: No neutral body in this, the era of super due process, has concluded that a single factually innocent person has been executed in this country in at least 50 years.

That being the case, Judge Fine's all-but-announced view that there is "too much" chance of executing an innocent person is hogwash.

Even were it otherwise, the only relevant question before Judge Fine was whether THE PARTICULAR DEFENDANT BEFORE HIM was innocent; a local court in Houston is not a legislature, and the weighing of the overall social benefits of capital punishment versus its dangers is a quintessentially legislative task, not a job for the judiciary. A higher court than Judge Fine's has already determined that the death penalty is not per se unconstitutional, see Gregg; Baze.

The at least theoretical risk of executing an innocent person has been known since the death penalty was invented, and now is less than it has ever been (indeed less than when Gregg and Baze were decided). The real risk is not that we execute innocent people but that we so often fail to execute guilty ones, leading, when they continue their lethal behavior, to the moral abomination of preventable murder. This is known to have happened in the cases of Kenneth McDuff and Clarence Ray Allen, to name two. Abolitionists snooze their way through this grisly fact, but, their snoozing notwithstanding, McDuff's and Allen's numerous victims remain quite dead.

Posted by: Bill Otis | Jan 14, 2011 3:51:16 PM

Bill, let me try to respond in an orderly manner to all the points you raise (although this is an old post, so I doubt any one else is reading at this point). First, your argument that Willingham is guilty because Roger Coleman is guilty is just as fallacious as an argument that Willingham is innocent because the Perrys were innocent. Second, the Perrys were wrongly convicted based on a coerced false confession. Coerced false confessions are still a problem today. Third, you concede that there is a greater than zero risk of executing an innocent, but then ridicule Judge Fine for expressing concern about this risk. You seem to be arguing both that there is no real risk of executing an innocent and that there is a risk, but the benefits of the death penalty outweigh the risk. Those are two very different positions which require two different responses. You cannot coherently argue both.

Finally, you assume that I am making an abolitionist argument because I am arguing it is likely an innocent person has been executed. A reasonable supporter of the death penalty could believe: 1) that we have, and will, execute innocent people; 2) that the benefits of the death penalty outweigh the risk of executing an innocent; and 3) if we are to have the death penalty, we must do everything we can to make sure innocent people are not executed, including changing the law to reform facets of the death penalty that increase the likelihood of executing an innocent person. I think there are many death penalty proponents who believe these three things, but the pro-death penalty side of the debate seems to be dominated by people who view any admission that the death penalty as currently administered has flaws as a sign of weakness. This has led to a perverse situation where all the reforms that make the death penalty more fair are driven by people who want to abolish it.

The death penalty will not be abolished in either of our lifetimes. You can admit its flaws without risking abolition (particularly in Texas).

Posted by: Paul | Jan 14, 2011 9:37:49 PM

Bill knows nothing of Fine but can predict his every move. How can one argue with someone who claims to know what others think better than they know themselves, even claiming they believe the exact opposite of all their public statements? More to the point, why bother disputing when his approach is clearly so self-serving and silly? Bill Otis accusing others of willful blindness again brings to mind the pot and kettle.

Paul, don't try to correct Bill speaking out of both sides of his mouth: It's intentional obfuscation, not an error which sound reasoning may reasonably be expected to correct.

Posted by: Gritsforbreakfast | Jan 16, 2011 10:46:40 PM

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