Yesterday afternoon I linked to coverage of the brief hearing in Judge Kevin Fine's 177th State District Court. There's additional coverage and commentary this morning.
Mary Alice Robbins has posted, "Texas Judge Rescinds His Own Order Over Constitutionality of Death Penalty," at Texas Lawyer. It's also available through Law.com's National Law Journal.
At a hearing Tuesday, Judge Kevin Fine of Houston's 177th District Court rescinded his March 4 order in which he granted defendant John E. Green's "motion to declare Article 37.071 of the Texas Code of Criminal Procedure unconstitutional," says Alan Curry, appellate division chief in the Harris County District Attorney's Office. Article 37.071 is the state's death penalty statute.
But neither Curry nor Robert K. Loper, a Houston criminal defense solo who is one of the lawyers representing Green, believe Fine has changed his interpretation of Article 37.071.
"Based on what he [Fine] said from the bench, I'm pretty sure he hasn't changed his mind," Curry says. And Loper says Fine "certainly did not change his mind."
Curry says Fine now wants the parties to brief the issue the judge believes was raised in Green's motion to hold Article 37.071 unconstitutional and that is: "Is it OK to execute an innocent person so that we can maintain a death penalty?"
Loper says his interpretation of Fine's March 4 order and subsequent statements is the judge found the death penalty procedure itself unconstitutional as it relates to Article 37.071. Loper says the judge wants to give the state and the defense in State v. Green an opportunity to brief the issue.
Fine has tentatively set an April 27 evidentiary hearing to consider the issue, say Curry and Loper, both of whom were at Tuesday's hearing.
Abby Rapoport notes Judge Fine's actions in The Brief, the daily digest at Texas Tribune.
Mark Bennett continues his posting on the case at Defending People with, "Judge Fine and the Chronicle Back Off."
A Houston judge who ruled last week that the proceedings surrounding the Texas death penalty are unconstitutional rescinded his ruling this morning to schedule a hearing for lawyers on both sides to submit arguments on the issue.
(Houston Chronicle, from which the Keirnan and Allen quotes below also come)
While I wasn’t able to attend this morning, I have it on good authority that the Houston Chronicle’s description of the proceedings is accurate. I commend the Chronicle for this, and for bucking the AP in favor of Messrs. Strunk and White’s preferred punctuation of the possessive of Texas.
I appreciate people who are able to admit their mistakes and correct them. It shows strength of character, whether the people are reporters or judges. Judge Fine jumped the gun when he held Article 37.071 unconstitutional. There was no evidence presented in support of the motion, and some of the facts Judge Fine took judicial notice of were not in fact facts. He violated the first rule that judges learn at baby judge school, which is that the best way to avoid reversal is not to rule. Then he violated the second rule that judges learn at baby judge school, which is to not change your ruling once you’ve ruled.
Now the parties have until April 12th to submit briefs; a hearing is scheduled for April 27th. (Which is odd—usually the briefs come after the evidence.) It’s not entirely clear what will happen at the hearing. Maybe Judge Fine (who doesn’t read my blog) intends to do what I proposed last Friday: test in a full-blown adversary proceeding the assertions of those on both sides of the death penalty debate.
Today's Fort Worth Star-Telegram carries the editorial, "Death penalty is the right topic, but the judge's ruling is the wrong debate."
State District Judge Kevin Fine in Houston succeeded in starting a debate about Texas' death penalty. Trouble is, people are arguing about whether he's a judicial activist -- instead of about the system's injustices.
Last week, defense lawyers presented Fine with boilerplate pretrial motions in the case of John Edward Green Jr., a 25-year-old charged with killing Huong Thien Nguyen, 34, during an early morning robbery outside her home.
Fine rejected claims that jurors can't assess a defendant's future dangerousness and that lethal injection is cruel and unusual. But he ruled unconstitutional the state law that lays out procedures in a capital case: what evidence can be presented at sentencing; what instructions the judge must give jurors; what questions jurors must answer in choosing death or life imprisonment.
Fine went with his own sense that innocent people have been executed and that society no longer approves.
And:
Texans need to have a sober and extended discussion about whether problems with witness identifications; questionable forensics; inequities depending on defendants' race, ethnicity and income; and other major shortcomings have so undermined the capital punishment system that it's no longer credible or acceptable, morally or legally.
At the Dallas Morning News Death Penalty blog Colleen McCain Nelson posts, "Judge who declared death penalty unconstitutional now backs off ruling."
What to make of Harris County District Judge Kevin Fine? First, he ignited a Texas firestorm by ruling that the death penalty was unconstitutional. Then he "clarified" his ruling. And now, today, he has rescinded his ruling.
But lest you think that he has had a change of heart, Fine has clarified further, explaining that he's simply holding his ruling in abeyance until lawyers can submit briefs on this issue. He's said unequivocally that innocent people have been executed, and no precedent exists to guide him on the question of whether it's OK to put the innocent to death. This seems to be a dilemma indeed.
Earlier coverage begins with this post.
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