On Thursday, March 4th, 177th District Judge Kevin Fine of Houston ruled that the death penalty was unconstitutional.
Judge Fine granted a motion filed by defense attorneys representing John E. Green who has been charged with capital murder in connection with the June 2008 shooting death of Thien Huong Nguyen. The defense motion argued that Texas Code of Criminal Procedure Article 37.071 “violates the protections afforded to the Accused by the 8th and 14th Amendments … and that the option to sentence the Accused to die for a crime that he did not commit should be precluded as a sentencing option.”
“What he’s saying, and what the motion is saying, is that you can’t administer the Texas death penalty fairly in Texas,” says John P. Keirnan, a lawyer for the defendant. “Kevin Fine has taken a courageous stance, finally. This is the beginning of the end of the death penalty in Texas.”
Well, maybe not. Fine’s ruling unleashed a firestorm of controversy. Texas Governor Rick Perry responded told the media that he supports the death penalty and so do the people of Texas. Attorney General, Greg Abbot lashed out in an unseemly display of righteous indignation: “In an act of unabashed judicial activism, a state district judge ignored longstanding U.S. Supreme Court precedent and improperly granted John Edward Green’s request that the court declare the death penalty unconstitutional. The Attorney General’s Office has already offered to provide help and legal resources to the Harris County District Attorney’s Office — which is handling the Green prosecution — and will take appropriate measures to defend Texas’ capital punishment law. We regret that the court’s legally baseless order unnecessarily delays justice and closure for the victim’s family — including her two children, who witnessed their mother’s brutal murder.”
So now we know, the Texas political establishment is firmly on the side of the death penalty. It’s good to have that clarified.
Overwhelmed by this torrent of condemnation, Judge Fine rescinded his ruling, calling instead for an April 12 hearing in which both sides can present arguments on the issue.
According to the Fort Worth Star-Telegram, Judge Fine made it clear that “his ruling is limited to whether the Texas Code of Criminal Procedures allows for the execution of innocent people. He said there is no precedent to guide him.
‘There’s nothing in my research that say’s it is OK to execute innocent people so that we may have a death penalty,’ Fine said on the bench.
He said that society’s standards of decency and fairness have changed and ‘that we have executed innocent people.'”
I wish it were so. I suspect we have executed innocent people. But according to the most recent Gallup poll, “The data show that 57% of those who believe an innocent person has been executed also support the death penalty. This is significantly higher than the 39% who hold this belief and (perhaps more consistently) oppose the death penalty.”
In other words, most of those who believe Texas has executed at least one innocent person maintain their support for the death penalty. This may sound a bit counterintuitive, but there is a perverse kind of logic at work. Perhaps the innocent are being executed, folks reason, but most of those who die are guilty and the innocent ones are almost always poor and black so . . .
The Star-Telegram’s editorial board congratulated Judge Fine for expressing concern about the fairness of the Texas criminal justice system, but said the judge picked the wrong issue. “He is far from alone in questioning the system or in worrying about the risk that not everyone on Death Row is guilty as charged,” the editorial admitted, “but his ruling was grounded on assumptions, not facts, musings, not law.”
Here, the Star-Telegram appears to be following the reasoning of Harris County District Attorney Patricia Lykos who released a statement deploring Fine’s ruling (using virtually the same language employed by AG Abbot). Lykos also states that the ruling has “no basis in law or in fact.”
The facts are open to dispute. Judge Fine appears to have misstated a few statistics (see the S-T editorial) but the key issue is whether innocent people have been executed in Texas. Timothy Cole did not die by lethal injection, but he did succumb to asthra-related health issues before he could be cleared of a rape he didn’t commit. Forensics experts have argued that Cameron Todd Willingham may well be innocent of killing his own children in a Corsicana house fire. Governor Perry has been moving heaven and earth to bury the Willingham case but it just won’t quite die.
So, yes, the facts suggest that innocent people have been executed in Texas, we just don’t have definitive proof.
So much for the facts; what about the law?
That all depends what you mean by the law. There are certainly state statutes making it legal to execute people, but I don’t think that is what Judge Fine’s opponents are talking about. Constitutional challenges to the death penalty have repeatedly failed in Texas and elsewhere since the death penalty was reinstated in 1976. But Judge Fine’s concern is based on his belief that innocent people have been executed in Texas and there is no law establishing the right of Texas officials to execute the innocent. There isn’t a lot of legal precedent on that issue for the simple reason that Judge Fine is the first member of the Texas judiciary to all the issue to be debated in open court.
But again, Fine’s critics aren’t simply talking about statutes and legal precedents when they say his ruling has no basis in the law. By “the law” they mean the transcendent legal truth that all statutes and bench rulings strive to replicate. We are running up against the idea that if we could just frame the right legal equation there is, in all the great mass of legal argument out there, a simple legal truth that all people of good will should accept.
Does “the law”, per se, tell us anything of value about the legitimacy of the death penalty in Texas? Or does Rick Perry grasp the essence of the legal system when he argues that the majority gets to decide what is right and wrong?
- Oliver Wendell Holmes
The idea that legislators and jurists are striving to find a transcendent “law” when they create statutes and hand down rulings is a largely outmoded idea. Oliver Wendell Holmes (d. 1935) rejected the notion of a transcendent and automous “law” and there is scarcely a law school in America that currently endorses the concept. When you take God out of the legal equation (which our current legal system clearly does) there is no settled law that was true, is true and shall ever be true. Up until the 19th century the legal system rested on a firm belief in the God of the Bible but that quaint idea was long ago abandoned.
Friends of Justice 
In his initial ruling, Judge Fine stated that “it is safe to assume,” that the state has executed innocent people. I guess most people know that to assume makes an “ass” of “u” and “me.” So I am not comfortable with that language, “safe to assume.” But given Timothy Coles, Scott and Simmons, and the host of DNA exonerations of death row inhabitants, it is not safe to assume that we have not executed innocent people. Of course, once a trial has deemed someone guilty, they are no longer legally innocent. I think the 57% are whatever % who say it’s okay to execute the innocent are probably saying that pulling up the occasional stalk of wheat along with the tares is just the price we pay. Of course Jesus said, “Let ’em alone. Let God decide who is wheat and who is tares.” (My rough paraphrase of the parable.)
It’s interesting to me that in both the news account of Judge Fine’s calling the penalty unconstitutional, and in the account of his backpedaling from that ruling, it is mentioned that Judge Fine is a much tattooed recovering alcoholic and former drug user. Since those facts (if they are facts) have nothing whatever to do with his ruling that it is just a hamhanded effort to minimize his capacity as a judge.