Texas judge in anti-death penalty ruling resigns

Kevin Fine

Texas judge who in 2010 had declared the death penalty unconstitutional before an appeals court overruled him is resigning effective immediately.

The Houston Chronicle reports ( http://bit.ly/PbuBDo) state District Judge Kevin Fine announced his resignation Tuesday. He wasn't seeking re-election this fall.

Fine wasn't commenting but Robert Fickman, one of his confidants, told the newspaper Fine apparently is seeking a job that wouldn't be available if he waited until after the November election to step down.

In March 2010, Fine initially declared the Texas death penalty statute unconstitutional after granting a pretrial motion in a capital murder case over which he was presiding. He later rescinded the ruling and ordered a hearing.

The Texas Court of Criminal Appeals stopped the hearing, later ruling Fine had exceeded his authority.

Source: The Associated Press, Aug. 21, 2012

US court halts death penalty constitutionality case

District Judge Kevin Fine 

WASHINGTON — The highest criminal court in Texas intervened Wednesday to halt a rare case challenging the constitutionality of the death penalty.

Texas District Judge Kevin Fine opened the case on December 6 with a series of hearings to determine whether the death penalty as applied in Texas risks executing innocent people.

Fine himself is a rarity, a heavily tattooed Democrat elected to his job in the politically conservative state.

The Texas Court of Criminal Appeals suspended hearings on December 7 on the case, and announced Wednesday that by a 6-2 vote it would not let the case proceed.

Judge Fine raised the issue in the case of John Green, 25. The prosecutor in the case has vowed to seek the death penalty for Green's involvement in a 2008 robbery.

However, Green's case has not been tried yet, so the appeals court ruled that the case was inadmissible.

"Mr. Green asserts that he is innocent, but apparently assumes that, if he goes to trial, he would be both wrongfully convicted and sentenced to death," read the ruling.

"These assumptions are simply not warranted before a jury has considered the evidence in the present case and rendered a verdict," the court said.

Green claimed that no jury can decide whether he is guilty of a crime that could result in a death penalty "because it is possible that an innocent person, perhaps in Texas, perhaps in some other jurisdiction, has been wrongly executed and therefore Mr. Green is subject to the possibility of being wrongfully convicted and wrongfully executed."

The Supreme Court "has never required human infallibility in its criminal laws or procedures," the court's ruling said.

It added that Green's challenge "can only be made when and if he has been convicted and sentenced to death. And it can be made only upon a showing that the Texas sentencing scheme has operated in an unconstitutional manner to deprive him of a constitutionally fair trial."

Issues surrounding the constitutionality of the death penalty in Texas "are indeed weighty public policy issues, greatly deserving of considerable debate," adding that the Texas Legislature "is an appropriate forum in which to debate these public policy issues."

Attorneys for Green said they were "deeply disappointed" that the appeals court shut down the hearing.

The appeals court "failed to assume the responsibility that Texas courts also have to address the underlying issue: whether the Texas death penalty trial process creates an unacceptable risk that innocent people have, and will continue to be, wrongfully convicted and executed," they said in a statement.

Both the Texas courts and the state legislature "have the obligation to address this overriding concern," they said.

The decision "does nothing to dispel the cloud of unreliability and indifference that hangs over the Texas capital punishment system," they said.

Two men sentenced to death whose guilt was challenged by the experts were executed in Texas in 2000 and 2004.

Claude Jones was convicted on the basis of a strand of hair found at the scene of the crime that later DNA tests determined was not his, and Todd Willingham was sentenced to death for setting fire to his home and killing his three daughters. Experts later showed that the fire was accidental.

Source: AFP, January 13, 2011

Prosecution 'Stands Mute' At Texas Death Penalty Hearing

Judge Kevin Fine

HOUSTON — Prosecutors on Monday told a judge presiding over an unusual court hearing on the constitutionality of the death penalty in Texas that they won't participate in the legal proceeding and will "stand mute" during the hearing.

Despite the prosecution's actions, the judge ordered the hearing to go forward and lawyers for John Edward Green Jr., the Houston man who asked for the proceeding, began calling witnesses.

The attorneys say will try to show that the way death penalty cases are handled in Texas creates a risk that innocent people will be executed. Green faces a possible death sentence if convicted of fatally shooting a Houston woman during a June 2008 robbery.

The hearing was ordered by Kevin Fine, a state district judge in Harris County who in the spring granted a motion by Green's attorneys and declared the state's death penalty statute unconstitutional. Under heavy criticism, Fine clarified then rescinded his ruling and ordered the hearing, saying he needed to hear evidence on the issue.

Experts on eyewitness identification, confessions and forensic evidence are among those expected to testify at the hearing, which resumes on Tuesday and could last up to two weeks. Green's attorneys called four witnesses on Monday.

The first witness called was Richard Dieter, the executive director of the Death Penalty Information Center, a Washington, D.C.-based group that has been critical of capital punishment.

Dieter discussed the 138 exonerations of death row inmates that have occurred in the U.S. since 1978, including 12 in Texas. He said that for every nine executions that have occurred in the U.S., there has been one exoneration.

Dieter said his group's review of these exonerations has shown that faulty eyewitness testimony, unreliable informant testimony and false confessions are some of the factors that have contributed to innocent people being wrongfully convicted.

"The system, the number (of exonerations), the fortuity of finding mistakes would lead me to believe there is certainly a risk of executing the innocent and that risk still exists today," he said.

After Green's attorneys finished questioning Dieter, Fine asked prosecutor Alan Curry if he had any questions.

"We still respectfully refuse to participate in the proceeding your honor," Curry said.

Later during the hearing, Fine told Curry he expected prosecutors to participate.

"I have been instructed by my boss, the district attorney, to stand mute for the remainder of the proceedings," Curry said, adding he meant no disrespect to Fine or others involved in the hearing.

Before the hearing began, Curry reiterated objections prosecutors have had to the hearing, saying the issues being debated are settled case law and that some of the issues Green's attorneys plan to discuss at the hearing, such as crime clearance rates and alleged racial discrimination in how juries are chosen, have no relevance to Green's case. Fine asked Curry to submit his objections to the relevancy of some of the issues to be discussed but said the hearing would go forward.

Prosecutors unsuccessfully tried to get Fine removed from the case, saying he is biased against the death penalty.

Fine has said he believes capital punishment is constitutional and the hearing will focus only on the specific issues raised by Green's attorneys.

Also testifying on Monday was Sandra Guerra Thompson, a professor at the University of Houston Law Center and an expert on eyewitness identification. Guerra testified that she believes such identifications can be filled with problems, including witnesses being overconfident in recalling events and witnesses being influenced by a need to help authorities. She was a member of a panel created by the Texas Legislature that earlier this year made recommendations on improving eyewitness identification procedures and allowing more DNA testing to take place after convictions.

If Fine were to rule the state's death penalty statute is unconstitutional, prosecutors have said they would appeal the decision, which would have a good chance of being overturned. The Texas Court of Criminal Appeals, the state's highest criminal court, has previously ruled against similar challenges to the law like the one Green is making.

The hearing is unusual for Texas, a Republican state that has strongly supported capital punishment. The hearing is being held in Harris County, which includes the state's largest city, Houston, and has sentenced more people to death than any other Texas county – 286 since executions resumed in 1982. One hundred fifteen of those have been executed.

While anti-death penalty groups have lauded Fine, those in favor of capital punishment have called him misguided.

Green's attorneys say they plan to bring up executions that have been recently questioned, including that of Cameron Todd Willingham.

Willingham was put to death in 2004 for burning down his Corsicana home in 1991 and killing his 2-year-old daughter and 1-year-old twins. Several fire experts have found serious fault in the arson findings that led to his conviction.

Source: The Huffington Post, December 6, 2010

Hearing on Constitutionality of Texas Death Penalty - Monday Dec. 6 in Houston Judge Fine's Courtroom

Judge Kevin Fine

A hearing on the constitutionality of the Texas death penalty will be held in Judge Kevin Fine's courtroom in Houston on Monday, December 6, at 9 AM.

Texas' use of capital punishment will undergo legal scrutiny at this hearing. Evidence and arguments will likely be presented that there is substantial risk that the state's death penalty law does not adequately protect against the execution of an innocent person.

John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. Green’s defense attorneys will argue that a number of factors in Texas' death penalty system increase the risk of wrongful executions in Texas, including a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions and a history of racial discrimination in jury selection.

State District Judge Kevin Fine of the 177th Criminal Court in Harris County (Houston) set the hearing for Dec. 6 as part of a pretrial motion in which two defense attorneys for a Houston man facing a possible death sentence asked that Texas' death penalty statute be declared unconstitutional.

In March, on a motion filed by attorneys for John Edward Green Jr. (facing death for the 2008 robbery and murder of Huong Thien Nguyen in Houston), Fine ruled that capital punishment as practiced in Texas is unconstitutional for failing to adequately protect the innocent. Fine quickly rescinded that original order, but he has granted Green's attorneys the right to a hearing on the matter. Green's attorney Casey Keirnan told the Associated Press that he expects the hearing could last up to two weeks and that death penalty experts from around the country will likely testify. "I think everybody in the United States would agree that the possibility exists" that an innocent person has already been executed, he said.

TEXAS MORATORIUM NETWORK: If you live in Houston or can be there, there will be a demonstration against the Texas death penalty outside the courthouse at 8 AM on Monday Dec. 6, 2010 (RSVP on the Facebook event page). Location: Harris County Criminal Justice Center, 1201 Franklin, 19th Floor, Houston, Texas 77002

Source: Texas Moratorium Network, December 1, 2010

Texas Judge to Rule on Death Penalty Constitutionality

Texas' messy death penalty saga continues Monday in a Houston courtroom, where a district judge will for the first time in state history consider whether the risk of executing an innocent person makes capital punishment unconstitutional.

Harris County District Judge Kevin Fine is set to hold a hearing in the case of John Edward Green, who is charged with fatally shooting a Houston woman during a robbery in June 2008. Harris County prosecutors are seeking the death penalty in the case. But Green’s attorneys and capital punishment opponents want Fine to rule that prosecutors can’t seek the death penalty because the way it is administered in Texas is unconstitutional. They say they have proof that at least two wrongfully convicted men have been executed. With so many chances for error in the courts, they argue, Texas shouldn't risk putting an innocent person to death. “The current system is profoundly and fundamentally flawed from top to bottom,” says Andrea Keilen, executive director of the Texas Defender Service.

Click here to read the full article.

Source: The Texas Tribune, December 2, 2010

Death Penalty May Be Ruled Unconstitutional In Texas

WASHINGTON -- At a hearing scheduled for Monday, December 6, a district court in Texas will decide whether the death penalty is unconstitutional in the state based on the disproportionately high risk of wrongful convictions in Texas. This is the first time in the state's history that a court will examine the problem of innocent people being executed in a Texas capital trial.

John Edward Green, Jr., the defendant in Texas v. Green, is charged in the fatal shooting of a 34-year-old Houston woman during a 2008 robbery. According to legal documents obtained by HuffPost, Green's defense attorneys will be arguing on Monday that a number of factors in Texas's legal system increase the risk of wrongful executions there, including a lack of safeguards to protect against mistaken eyewitness identification, faulty forensic evidence, incompetent lawyers at the appellate level, failures to guard against false confessions and a history of racial discrimination in jury selection.

The death penalty in Texas came under fire earlier this month when a DNA test conducted on a single hair undermined the evidence that convicted a Texas man of capital murder over ten years ago. The hair had been the only piece of evidence linking Claude Jones to the crime scene, but the new test results revealed that the hair likely belonged to the murder victim instead of Jones.

Maurie Levin, a law professor at the University of Texas and an expert on capital punishment, said she would not be surprised if Judge Kevin Fine ruled the death penalty to be unconstitutional in Texas on Monday.

"I would think that Judge Fine would have substantial basis in the evidence that I'm aware of that would lead to a conclusion that the Texas death penalty is unconstitutional as applied," she told HuffPost.

Since 1976, twelve people have been exonerated from death row in Texas out of 139 nationwide, and four study commissions set up by the Texas government have formally recognized the serious risks of wrongful convictions there. Out of the 464 people that have been executed in Texas, about 70 percent have been minorities, according to the Texas Department of Criminal Justice.

Andrea Keilen, executive director of Texas Defender Service, said it is clear to her that the death penalty is handed down unfairly and erratically in Texas.

"It is my opinion and the opinion of many people close to this issue that the Texas system is wholly incapable of carrying out the death penalty in a fair and reliable way," she told HuffPost. "Texas is remarkably out of step with the rest of the country and certainly out of step with what the average Texan would expect when dealing with capital punishment. We're seeing in case after case that the system is just inherently prone to the risk of wrongful convictions and has a complete inability to correct its mistakes."

Keilen said that while the state has a history of strong popular support for capital punishment, she thinks Texans would feel differently about the practice if they knew all the facts.

"I think there is support for the idea of the death penalty among the average Texan, but that if the average Texan were to get a closeup view of how the system actually operates, that support would significantly wane," she said. "It's an abstract concept to most people, but if they saw how abysmal the quality of representation can be, how the system is biased racially, how prosecutors can not disclose evidence, or how DNA testing can be wrong, my opinion is that they as reasonable people would find it unacceptable."

Source: The Huffington Post, December 2, 2010

Houston's Death Penalty Hullabaloo

Harris County Texas is the death penalty capital of the democratic world. It accounts for about 1 percent of the U.S. population but has carried out nearly 10 percent of the country's executions since 1976. So when a state district judge in Houston, Kevin Fine (pictured), unexpectedly ruled Texas's capital punishment procedures unconstitutional last week, it was a shot heard 'round the world.

Attorneys for the defendant in the case, John Edward Green Jr., who is charged with killing a woman in a robbery and shooting her sister, praised the decision as "the beginning of the end of the death penalty in Texas." But proponents of the death penalty, who carry larger bullhorns, were indignant. Greg Abbott, the state's attorney general, called the ruling "legally baseless," while Governor Rick Perry, who has presided over 211 executions during his long tenure, denounced the "activist judge [for] legislating from the bench."

Click here to read more.

Source: The Huffington Post, March 11, 2010 - Photo: In this Nov. 14, 2008 photo, newly elected State District Judge Kevin Fine, shows his sleeve of tattoos at his downtown office in Houston, Texas. Fine used his life experience of beating drug addiction for his campaign. Fine, who is a judge in the Texas county that sends more inmates to death row than any other in the U.S. is facing a torrent of high-profile criticism after he declared the death penalty unconstitutional. Houston Chronicle, Nick de la Torre / AP Photo

Texas judge who declared Texas DP unconstitutional schedules hearing to hear evidence on the issue

A Houston judge who last week ruled that the Texas death penalty procedures are unconstitutional has scheduled a hearing on April 27 to hear evidence on the issue. State District Judge Kevin Fine said he wants more information before making a final decision about whether the state's death penalty statute allows for the possible execution of an innocent person.

Judge Fine has asked Harris County prosecutors and defense attorneys to submit motions on the due process issue by April 12. Fine will then have an evidentiary hearing April 27 when testimony on whether innocent people have been executed in Texas is set to be presented.

The defense attorneys are still determining whom they might call to testify at the April 27 hearing, but they said it might include officials connected to the case of Cameron Todd Willingham, whose 2004 execution for the deaths of his three daughters in a 1991 house fire near Corsicana is now being questioned. Below: Watch video of Judge Fine explaining his ruling from the bench.

Source: Texas Moratorium Network, March 10, 2010

Texas judge v. the death penalty: "Unspeakably true"

Judge Kevin Fine spoke the unspeakable when he said that the death penalty as applied in Texas is unconstitutional. Immediately he was attacked by Texas Gov. Rick Perry, Texas Attorney General Greg Abbott and Harris County District Attorney Pat Lykos as partaking in judicial activism.

However, Fine spoke the truth.

The death penalty was declared unconstitutional by the U.S. Supreme Court in 1972 because it was being applied in an arbitrary and capricious manner. It was declared constitutional again in 1974 after states amended their death penalty laws to make them less arbitrary and capricious.

However, it has been very clear to many people in Texas and elsewhere that the death penalty is still applied in an arbitrary, capricious and discriminatory manner. Who does and doesn't get the death penalty depends on a variety of factors, including the race of the victim of the crime, politics and where the crime takes place. Most people who end up on death row could not afford a top-quality legal defense. Furthermore, as Fine points out, innocent people have been sent to death row and some undoubtedly have been executed.

Fine's statement will probably not have an immediate effect on what happens in Texas and elsewhere. Many of the judges in higher courts, including the U.S. Supreme Court, are supportive of the death penalty as it now is applied. However, in the longer term, his statement could be a milestone in ending the death penalty in the United States.

The reality is that the death penalty can never be fixed so that it is no longer arbitrary and capricious.

— David Atwood,

Texas Coalition to Abolish the Death Penalty

Source: Houston Chronicle, Letters to the Editor, March 9, 2010

Texas: Judge Takes Back Death Penalty Ruling

A Harris County judge who came under criticism for declaring the death penalty unconstitutional took back his decision on Tuesday.

The judge, Kevin Fine of 177th Criminal Court, said he still wanted more information on whether the state’s death penalty statute was unconstitutional because it allowed for the possible execution of an innocent person.

In a ruling last week, Judge Fine said it was safe to assume that innocent people had been executed.

A string of high-profile Texans, including Gov. Rick Perry, strongly criticized the decision. Judge Fine declined to say why he took back his ruling.

Source: The New York Times, March 9, 2010

Texas: Judge’s critics not arguing right facts

Since State District Judge Kevin Fine of Houston declared the death penalty unconstitutional, critics have pointed out that he:

A. Is a Democrat.

B. Is a recovering alcoholic.

C. Is a former cocaine user.

D. Has a lot of tattoos.

They have not provided a coherent defense of the death penalty as it is administered in Texas.

If you want to read some really brutal criticism of Texas’ death penalty, forget about Judge Fine for a minute. Take a look at the justices on the U.S. Supreme Court, most of whom were appointed by conservative presidents. For the past decade, they’ve had a lot to say about Texas.

Click here to read more.

Source: GalvestonDailyNews.com, March 9, 2010