A state district judge in Dallas County has ruled that a Texas death penalty statute is unconstitutional because it allows prosecutors to arbitrarily seek capital punishment. Prosecutors are appealing Judge Teresa Hawthorne’s decision and have filed a motion to recuse her from Roderick Harris’ capital murder case. Hawthorne acknowledged when making her ruling last week that the Texas Court of Criminal Appeals and other courts have “consistently rejected” the reasons that she found the statute unconstitutional, according to a transcript of the hearing. But she said changes in the law can still be made. Hawthorne, who could not be reached for comment later, said she refused to be a “rubber-stamp judge.” The Democrat took office in January and is a former public defender. “My decision is not an act of unabashed judicial activism,” she said Monday from the bench. “I remember when women and blacks could not vote. I remember when so-called witches were burned. I remember when gays had to hide to be in the military. My decision is not to buck the system or stir the waters.”and
Hawthorne ruled that she believed: The Legislature failed to define terms like “continuing threat” and “moral blameworthiness” for jurors deciding between a life or death sentence. The Legislature’s definition of mitigating evidence is vague. State law prevents jurors from knowing that one vote for life can keep a defendant from receiving a death sentence. The law allowing a judge to enter into evidence “any matter that the court deems relevant to sentence” means that each judge hearing a case has the power to influence a sentence. “The law should not be arbitrary or capricious,” Hawthorne said in court. The Dallas County district attorney’s office and special prosecutor Kevin Brooks declined to comment about the ruling or the recusal motion. Brooks was appointed special prosecutor in the case because he had already been working on the case when he left the DA’s office earlier this year. Brad Lollar, one of Harris’ defense attorneys, said he believed that the appellate court would be interested in issues surrounding the lack of definitions and the fact that jurors consider whether a defendant would continue to be a threat based on his release into society. “That’s not going to happen” after sentencing in a capital murder case, Lollar said. “He’ll either get life without parole or death.” A Harris County judge made a similar ruling on the constitutionality of the death penalty in March 2010. State District Judge Kevin Fine eventually withdrew his ruling and refused to recuse himself from the case. That case ended in a plea agreement earlier this year when John Edward Green Jr. pleaded guilty to a lesser charge of murder. He fatally shot a Houston woman and wounded her sister in a June 2008 robbery. The chance that a higher court will agree with Hawthorne is “a long shot,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington. But he said changes in an appeals court’s makeup can produce different rulings on the same issues. “That’s sometimes how laws get changed,” Dieter said. “What’s been rejected before could be seen differently.” Lollar pointed to U.S. Supreme Court Justice Anthony Kennedy as an example of a jurist changing his opinion on death penalty issues. Lollar said that within a 10-year span, Kennedy changed his mind on whether the mentally retarded and those who are 17 at the time of the crime could be executed for capital murder. Executions of the mentally retarded and juveniles are no longer allowed in the United States. “Unless you give the court the opportunity to reconsider, how do you change the law?” Lollar said. A hearing on the recusal motion is scheduled for January before another judge. Testimony in Harris’ trial is expected to begin in May after a months-long process of jury selection.