Judges Should Question Victims, Witnesses, About Offense Before Imposing Punishment
By: Houston Criminal Defense Lawyer John Floyd and Billy Sinclair
Under Texas law, a criminal defendant has the option of allowing either the jury that convicted him or the judge presiding over the trial to assess punishment.
In 2008, Emiliano Escobar, convicted by a jury of the sexual assault of an 18-year-old college student, elected to have 177th Criminal District Court Judge Kevin Fine decide the punishment he should receive. To arrive at a punishment that fit the crime, Judge Fine obviously believed he had a duty to closely question the victim about the nature and circumstances of the alleged sexual assault. At one point during the Judge’s examination of the victim, he commented that “sending a man to prison in the name of law and order is the greatest injustice this society can do.”
We agree. 75 percent of the nearly 250 DNA exonerations in this country over the last two decades involved mistaken eyewitness identification. In Texas, the mistaken eyewitness identification percentage is 82 percent in exoneration cases. Two recent Houston cases, Ricardo Rachell and George Rodriquez, come to mind. Both were wrongfully convicted based on false and/or mistaken eyewitness identification. 1/ Various reputable studies, including a 1996 study by the U.S. Justice Department, report that anywhere from 25 to 40 percent of all rape allegations made in this country are false. 2/
But Houston Chronicle columnist Lisa Falkenberg did not agree with Judge Fine’s questioning of the victim—not just with the manner of the Judge’s examination but more with the fact that he even conducted the examination. 3/ After reading the trial transcript of the Judge’s examination, Ms. Falkenberg conducted a telephone interview with the victim who also believed the Judge had “crossed the line” as she told the newspaper columnist.
Ms. Falkenberg and the victim were particularly disturbed that Judge Fine not only challenged the victim’s version of the events but questioned her detailed description of the actual sexual assault itself. According to Ms. Falkenberg, the victim was “shocked” that Judge Fine found it “odd” the alleged rape actually occurred with the victim on top of Escobar during the sexual intercourse. (more…)
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