From the Houston Chronicle:

A Houston judge who declared the death penalty unconstitutional Thursday clarified his ruling in an impromptu hearing Friday, saying he ruled the procedures surrounding the process in Texas are illegal.
During Friday’s hearing, prosecutors filed motions asking state District Judge Kevin Fine to reconsider his ruling and also to proceed with April’s death penalty trial of John Edward Green Jr. Fine maintained at the hearing that he believes innocent people have been executed.
Fine’s clarification came in the wake of a firestorm of criticism from District Attorney Pat Lykos, the Texas Attorney General’s Office and Gov. Rick Perry protesting that Fine ignored well-settled law.
Fine is expected to rule on the motions next week. He did not return calls for comment Friday.
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.

Dissecting the ruling

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.

‘Beginning of the end’

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.
A past president of the Harris County Criminal Lawyer’s Association summed up the mechanics of the ruling.
“He did not rule that the death penalty is unconstitutional,” said Mark Bennett, a criminal defense lawyer. “He ruled that a procedure that allows the execution of innocent people is unconstitutional.”

‘First impression’

In court, Fine said there were no guiding cases on this particular point.
“There is no precedent to guide me in resolving this particular issue,” Fine said. “As far as I know it is an issue of first impression.”

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2 Responses to Judge Kevin Fine clarifies ruling, maintains innocent people have been executed

  1. Mary says:

    I am so pleased that Texas has a righteous judge like Judge Kevin Fine. Also, I recall and appreciate Judge Chastising who stayed Jeff Wood's execution on Feb. 8, 2008. Wood is a mentally challenged Texan who was convicted under the law of parties. Texas is also home to Rep. Eddie Johnson, who introduced H.R. 619 into Congress to resume Medicaid funding for inpatient psychiatric care, which would help keep mentally ill people out of prison. I tried to send Texas Moratorium an email, but it bounced back. Many of my emails go nowhere. The cybercensorship used to prevent my advocacy to decriminalize mental illness and fight for human rights for prisoners can be seen at the YouTube video PRISON LABOR PROFITS – a 2 minute clip that captures real-time cyberstalking.

    The email that said "permanent failure" carried the background and update on the Troy Davis case. In fact, the cybercensorship force made that email bounce to all recipients but one or two. It is not that they hide the stories I write about in every case. My cybercensorship is intended to hide the secret arrest and WRONGFUL DEATH OF LARRY NEAL (Google that). The Troy Davis article is at this link:

    Thank you for your news and we all thank Judge Fine for his courageous stance against capital punishment. Like you, I posted the news that Judge Fine said the death penalty is unconstitutional. I also publish news about Rep. Johnson's bill. Please join AIMI in supporting it, as NAMI has done. Many of the people on death rows in America are mentally challenged, like your own Andre Thomas.


    Mary Neal
    Assistance to the Incarcerated Mentally Ill

  2. Ursula says:

    Would there were more courageous and principled judges like Kevin Fine. We should all care about whether the state is taking innocent lives in our name. See Ursula Bentele, Does the Death Penalty, by Risking Execution of the Innocent, Violate Substantive Due Process?, 40 Hous. L. Rev. 1359 (2004).

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