Saturday, March 6, 2010

Texas Death Penalty Procedures Declared Unconstitutional

My pal, Chris pointed out a brief item in todays, NYT that led me to track down a more compehensive report at the Houston Chronicle website; the guy in the pic is Harris County Judge Kevin Fine.  In a rarely seen act of political profile in courage this good judge declared the procedures around the Texas Death Penalty unconstitutional.  The excerpt is from Brian Roger's article at the Chronicle:

"When asked direct questions Thursday about his ruling, Fine said he was declaring the death penalty unconstitutional because he believes innocent people have been executed.  Friday, Fine clarified that he declared the procedures Texas has in place to carry out the death penalty unconstitutional, a legal parsing even to the prosecutors trying the case.

'As a practical matter, if you strike down that statute, you're not necessarily striking down ‘the death penalty' but you're striking down the way we try death penalty cases,' said Bill Exley, an assistant Harris County district attorney. 'So the effect is that you can't have a death penalty because you can't get there.'

Exley and Assistant District Attorney Kari Allen are pursuing the death penalty for Green in the robbery and fatal shooting of Huong Thien Nguyen, 34, on June 16, 2008. Police said she and her sister, My Huong Nguyen, had returned to their home in the 6700 block of Bellaire Gardens about 1:20 a.m. when Green approached them, demanded money and shot them.Green's lawyers, Bob Loper and Casey Keirnan, heralded the decision as the 'beginning of the end of the death penalty.'

'We don't necessarily think we're the ones who will make this happen. But it certainly is a chink in their armor. This is going to raise everyone's consciousness,' Loper said. 'It appears as though it's going to go up on appeal. It certainly has people talking.'

If Fine's ruling were to be upheld, it effectively would take away the option of the death penalty in Green's case.Most legal commentators said the ruling wouldn't stand up at the appellate level.
Can you believe it, a Texas Judge who doesn't want to be reelected!

Wow, someone with judicial power in Texas who actually gives a damn whether innocent people get executed.  I'm pinching myself.

God bless, Judge Fine!


  1. "Judge's Clarification Puts Him in More Hot Water: Texas Death Penalty Ruled Unconstitutional" (1)
    Dudley Sharp, contact info below

    The judge clarifies that his decision is " . . . limited only to the due process claim that 37.071 (2) has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons". (1)

    As such potential has existed since the beginning of executions, it is curious that the judge has made this ruling when (1) the probability of such an event occurring is now lower than at any other time in history, (2) the judge cannot point to a case whereby an innocent has been executed in the modern US death penalty era, post Gregg v Georgia, and (3) the judge can cite no precedent wherein perfection is required in the implementation of due process.

    I agree with Judge Fine that judges should be gatekeepers. However, his claim that this is a case of "first impression", with no precedent to rely upon, makes him the gatekeeper to Alice in Wonderland's rabbit hole, wherein he welcomes us all. Some of us will refuse, as reality requires.

    The judge states: "We execute innocent people. This is supported by the exoneration of individuals off of America's death rows. I repeat, again, that the vast majority of those cases involve DNA evidence."

    After, again, not fact checking, the judge has repeated his earlier error, by again using the wrong 200 released number from the Innocence Project(3), which is in reference to cases IN THE ENTIRE PRISON SYSTEM - NOT JUST DEATH ROW - whereby prisoners were released because of DNA exclusion.

    The real number is 251 (4), of which 9-10 represent inmates released from death row (5) , or 4% - hardly a vast majority.

    In reality, the number of actual innocents released from death row is closer to 25 (6), of which the 9-10 DNA cases make up 40% of those so identified and released, also not a vast majority, and which represents about 0.3% of all those sent to death row, since Furman v Georgia.

    Furthermore, evidence of releasing innocents from death row is only evidence of releasing innocents from death row. It is not evidence of executing innocents, for which Judge Fine offers not one case.

    Well, predictably, he offers one.

    Judge Fine "cites" a case from Travis County, with Judge Charley Baird presiding, whereby " . . . the deceased was in fact innocent and, thereafter, executed by the state of Texas."

    This is the case of Tim Cole, who died in prison, innocent of the rape he was found guilt of and imprisoned for. This was not a death penalty case. Besides getting all of the facts wrong, Judge Fine appears to have made the case (for himself) that we can no longer incarcerate people because it denies their due process rights, because of the probability that actual innocents die in prior to due process causing their release.

    Is Judge Fine this bad? Well, yes, he is.

    I agree with Judge Fine that innocents have been executed, It doesn't seem likely it has occurred in the modern era in the US. The death penalty offers greater protection for innocents than does its claimed alternative, life without parole (7). Given such a reality, possibly Judge Fine's next ruling will be that all incarcerations violate due process, as well. There is, after all, always the potential that an actual innocent incarcerated will die, prior to them being discovered and released by due process.

    There may even be the potential for Judge Fine to recognize the importance of both the facts and the law.

    footnotes upon request

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  6. The real number is 251 (4), of which 9-10 represent inmates released from death row (5) , or 4% - hardly a vast majority.