Judge Acknowledges Innocent People Have Likely been Executed



Harris County Criminal District Court Judge Kevin Fine on Thursday, March 4, 2010, created a tsunami of controversy in the Texas legal community when he reportedly made a comment that he was declaring the state’s death penalty unconstitutional. The comment was made during a hearing on a motion filed by defense attorneys in the case of John Edward Green Jr. who is facing a capital murder charge. What Judge Fine actually did was to declare Article 37.071 of the Texas Code of Criminal Procedure unconstitutional which is the statute that outlines the procedures for imposing the death sentence in this state.


“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty, so that we can execute those who are deserving of the death penalty?” Judge Fine mused from the bench. “I don’t think society’s mindset is that way now.”


The reaction to Judge Fine’s comment/ruling was immediate and volatile. Harris County District Attorney Pat Lykos issued a statement respectfully disagreeing with the ruling: “We respectfully, but vigorously, disagree with the trial judge’s ruling, as it has no basis in law or fact. Words are inadequate to describe the Office’s disappointment and dismay with the ruling; sadly it will delay justice for the victims and their families. We will pursue all [appeal] remedies.”


But Texas Gov. Rick Perry and Attorney General Greg Abbott were not so understanding in their reactions to Judge Fine’s ruling. Abbott called the decision “an act of unabashed judicial activism.”


The defense attorneys certainly didn’t see it that way. Green’s lawyer told the Houston Chronicle that it is standard practice for attorneys representing defendants facing the death penalty to file as many motions as possible to have the penalty declared unconstitutional. Their motion to declare Article 37.071, however, stressed that the procedures for imposing the death penalty in Texas are “truly broken” and have resulted in innocent people being executed.


It was that point, the probability that innocent people have been executed in the Texas death chamber, which caught the judicial attention of Judge Fine.  According to the Death Penalty Information Center, there have 139 persons released from death row since 1973 who had been declared innocent either by DNA exoneration or by other newly discovered physical evidence. With that many people wrongfully convicted and nearly put to death by 26 different states, Judge Fine clearly has a legitimate basis for his judicial concern.


University of Houston Law Center Professor Sandra Guerra Thompson offered this opinion to the Chronicle in the immediate wake of Judge Fine’s ruling: “You never know [if such a ruling will withstand appellate review], but I don’t see it happening at this time. Technically, they’re [the appeals courts] are bound by precedent. There are laws on the books that have ruled on this type of question.” But Professor Thompson added that Judge Fine may have simply wanted to trigger a dialogue in the court system about the death penalty. “If they [judges] feel strongly enough, sometimes they’ll grant a motion like this to buck the system, just to stir the waters,” she said.

Judge Fine’s March 4th decision certainly stirred the waters, so much so that he was forced, for one reason or another, to clarify his ruling the following day. Faced with a groundswell of opposition, Judge Fine on Friday, March 5, said he was not declaring the death penalty itself unconstitutional but rather declaring the Article 37.071 procedures for imposing the death sentence unconstitutional. The legal semantics did not impress the Harris County District Attorney’s Office.


“As a practical matter, if you strike down that statute [Art. 37.071], you’re not necessarily striking down ‘the death penalty’ but you’re striking down the way we try death penalty cases,” Assistant District Attorney Bill Exley told the Chronicle. “So the effect is that you can’t have a death penalty because you can’t get there.”


Green’s defense lawyer was not deterred by Judge Fine’s March 5th clarification. He told gathered media representatives outside the Harris County Criminal Court Building after Friday’s clarification that Judge Fine had effectively put the first nail in the death penalty’s coffin with his ruling on Article 37.071.


We wish we could share this elation. We cannot. First, while Judge Fine as a matter of “first impression” had legal standing to declare Article 37.071 unconstitutional, his comments from the bench will give some ammunition to those from pro-death penalty camp who believe, like Attorney General Abbott, that the judge was engaging in “judicial activism.”


Judges must always base their decision-making in fact or law, not in their personal opinions or feelings. Judge Fine opined that the State of Texas has likely executed innocent people. As with many, many other people, we share this opinion: there is compelling, even overwhelming evidence that Texas has executed innocent people like Cameron Todd Willingham, Ruben Cantu, and Gary Graham. But that is not yet a judicially declared fact. Those 139 condemned people removed from death row since 1973 were declared judicially innocent. Yet it has never been established as a judicial fact that an innocent person has been executed either in Texas or any other state in this nation. That is the most cherished, sought-after “holy grail” in the American anti-death penalty movement.


Secondly, we feel that Judge Fine’s actions, albeit courageous and inspiring, could actually have an adverse impact on the increasing trend away from using the death penalty in Texas in recent years. According to the Texas Coalition Against the Death Penalty, Texas juries as of December 4, 2009 had returned the death sentence in just eight cases. That’s the lowest number over the last decade. The previous low was 11 death sentences in 2006. Since 2005, there has been a sharp decline in the number of death sentences returned each year over the previous five years.


Texas has executed 450 inmates since it resumed putting people to death in 1982—by far the most of any state in the nation. With more than 100 executions, Harris County is the epicenter of the death penalty in Texas—a dubious distinction that can be attributed to a “convict-at-any-costs” political agenda maintained by the Harris County District Attorney’s Office.


But there is reason to hope in Harris County. While 106 of the 332 inmates currently housed on Texas’ death row were convicted in the county, Harris County juries have returned just seven death sentences over the past four years—an obvious indication they are rejecting the wholesale killing machine mentality of the district attorney’s office.


“2009 stands as a critical year in Texas’ experience with the death penalty,” said TCADP Executive Director Kristin Houle. “Concerns about innocence, arbitrariness, cost, and fairness generated unprecedented scrutiny of the administration of justice in the nation’s most active death penalty state. It is time for more elected officials to catch up with increasing public recognition that the Texas death penalty system is fatally flawed. We join with the swelling chorus of diverse voices, including those of law enforcement, religious leaders, murder victim family members, and state legislators, in calling for an end to this arbitrary and error-prone form of punishment.”


Why has the death penalty been declining in Texas? The answer probably lies in a 2005 law enacted by Texas Legislature that created a “life without parole” sentence as an alternative to the death penalty. The Fort Worth Star-Telegram reported last year that imposition of the death sentence in Texas had dropped to a 35-year low—a decline prosecutors and defense attorneys attribute to the life without parole option now available to juries in capital murder cases.


“With life without parole being a viable option now, [juries] feel a lot more comfortable that the person is not going to be let out back into society,” Tarrant County District Attorney Joe Shannon told the Star-Telegram. “We are probably waiving the death penalty more times than we used to because we’re trying to forecast the outcome of the case.”


The author of the life without parole bill, Sen. Eddie Lucio, Jr., D-Brownville, expressed a different take on this issue to the newspaper. He said the state’s death penalty system has been scandalized with a long list of DNA exonerations and questionable convictions. He charged that many jurors no longer trust the state’s death penalty system. “It isn’t life without parole that has weakened the death penalty,” Lucio said. “It is a growing lack of belief that our system is fair.”


The Star-Telegram pointed out that since the life without parole option became available, death sentences dropped “40 percent [throughout the state) compared with the four years prior.”


While we applaud Judge Fine’s decision, and understand the elation about it, we feel the decision could have an unexpected impact. Professor Thompson is right that the ruling will certainly stir dialogue in the court system but it will also most definitely awaken and reinvigorate many pro-death penalty supporters, who will fight to the end to prevent any legal potential for the death penalty to be declared unconstitutional.  While it seems an honest and just position to declare the death penalty unconstitutional because its administration has most likely cost innocent lives, it is just such a cost that those with this morbid and insatiable hunger for ultimate revenge seem willing to pay.