When Judge Kevin Fine, a state judge in Houston, ruled last week that the death penalty in Texas was unconstitutional, the blowback from the state’s conservative brass was swift.

Statements from Gov. Rick Perry, Attorney General Greg Abbot and a slew of other high-profile pro-capital punishment activists decried the judge’s ruling as “an act of unabashed judicial activism,” promising that the ruling would fail an appeal in a higher court.

In his opinion, Fine cited the vaunted Innocence Project, a nationwide effort out of Yeshiva University in New York that works to exonerate the wrongly convicted. While the project has freed some 251 people so far, perhaps its most important role — especially in Texas — is to bring to light the careless and illegal missteps that have led to years-long miscarriages of justice.

“Based on the moratorium [on the death penalty] in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” Fine wrote. “It’s safe to assume we execute innocent people.”

For a judge who showed such clarity and backbone last week, we do not recognize the Judge Fine who yesterday rescinded his previous ruling. He now says that he wants more information on whether or not Texas is executing innocent people, which would make, in his eyes, the death penalty unconstitutional.

While we must make it clear that no concrete evidence has surfaced to definitely accuse the state of executing an innocent person, Judge Fine needs to look no further than the work of the UT Law students whose work last year exonerated two Dallas men, both convicted of capital murder.

The Actual Innocence Clinic at the UT School of Law, in conjunction with the UT Arlington and the Dallas County District Attorney’s Office, proved its case without DNA evidence, making the exoneration that much more extraordinary.

Even the Cameron Todd Willingham case, which galvanized the entire nation last year, proves the obvious point that Texas’ criminal justice system is, at times, careless. The state convicted Willingham for the murder of his three children (he was accused of burning his East Texas home with his three children inside) and then executed him in 2004.

That kind of carelessness all too often breeds distrust — leading to the numerous questions that continue to surround the Willingham case to this day. Current evidence indicates that Willingham should have been exonerated.

We are reminded today of the life and work of Judge William Wayne Justice, who ruled time and again in the 1970s and ‘80s in favor of integrating East Texas schools, educating the children of illegal immigrants and bringing humanity to the state’s prison system.

They were controversial issues at the time, and they garnered Wayne a considerable amount of hate mail. But as liberal columnist Molly Ivins said of Wayne, “He brought the United States Constitution to Texas.”

That business remains unfinished. We hope Judge Fine is ready to get back to work.

When Judge Kevin Fine, a state judge in Houston, ruled last week that the death penalty in Texas was unconstitutional, the blowback from the state’s conservative brass was swift.

Statements from Gov. Rick Perry, Attorney General Greg Abbot and a slew of other high-profile pro-capital punishment activists decried the judge’s ruling as “an act of unabashed judicial activism,” promising that the ruling would fail an appeal in a higher court.

In his opinion, Fine cited the vaunted Innocence Project, a nationwide effort out of Yeshiva University in New York that works to exonerate the wrongly convicted. While the project has freed some 251 people so far, perhaps its most important role — especially in Texas — is to bring to light the careless and illegal missteps that have led to years-long miscarriages of justice.

“Based on the moratorium [on the death penalty] in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” Fine wrote. “It’s safe to assume we execute innocent people.”

For a judge who showed such clarity and backbone last week, we do not recognize the Judge Fine who yesterday rescinded his previous ruling. He now says that he wants more information on whether or not Texas is executing innocent people, which would make, in his eyes, the death penalty unconstitutional.

While we must make it clear that no concrete evidence has surfaced to definitely accuse the state of executing an innocent person, Judge Fine needs to look no further than the work of the UT Law students whose work last year exonerated two Dallas men, both convicted of capital murder.

The Actual Innocence Clinic at the UT School of Law, in conjunction with the UT Arlington and the Dallas County District Attorney’s Office, proved its case without DNA evidence, making the exoneration that much more extraordinary.

Even the Cameron Todd Willingham case, which galvanized the entire nation last year, proves the obvious point that Texas’ criminal justice system is, at times, careless. The state convicted Willingham for the murder of his three children (he was accused of burning his East Texas home with his three children inside) and then executed him in 2004.

That kind of carelessness all too often breeds distrust — leading to the numerous questions that continue to surround the Willingham case to this day. Current evidence indicates that Willingham should have been exonerated.

We are reminded today of the life and work of Judge William Wayne Justice, who ruled time and again in the 1970s and ‘80s in favor of integrating East Texas schools, educating the children of illegal immigrants and bringing humanity to the state’s prison system.

They were controversial issues at the time, and they garnered Wayne a considerable amount of hate mail. But as liberal columnist Molly Ivins said of Wayne, “He brought the United States Constitution to Texas.”

That business remains unfinished. We hope Judge Fine is ready to get back to work.

Last week, Gov. Rick Perry granted the state's first posthumous pardon to a man who was innocent of a crime for which he had spent 13 years in prison. DNA testing cleared Tim Cole of a rape he did not commit, but unfortunately it came too late — nine years after he had died in prison. The state must do everything it can to prevent this kind of tragedy from happening again.

On March 24, Texas plans to execute Henry Watkins Skinner even though untested DNA evidence could show we've got the wrong man. DNA testing could resolve doubts about Skinner's guilt in the 1993 Pampa slayings of his girlfriend and her two sons, but the state inexplicably has blocked that testing for more than a decade.

I'm not an advocate for Hank Skinner. I'm an advocate for the truth. If DNA tests could remove the uncertainty about Skinner's guilt — one way or the other — there's not a good reason in the world not to do it.

Some taxpayers may grumble at spending the public's money on DNA tests for individuals on death row. That argument doesn't hold water in Skinner's case. In 2000, the investigative journalists at the Medill Innocence Project offered to pay for the DNA tests. Ten years later, that offer still stands. There may be other objections to testing the evidence, but they don't outweigh the potential horror of executing an innocent man.

It is cases like Skinner's that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.

Tim Cole is only a recent example of the frailties in our criminal justice system. Several years ago, this newspaper argued persuasively that Ruben Cantu, a defendant I prosecuted who was put to death in 1993, may well have been innocent. Twenty years after Cantu's trial, my star witness recanted his trial testimony. Many people consider his recantation credible because he had nothing to gain by reversing his position except a whole lot of trouble.

That case brought home to me, in a way that nothing else could have, that the system we trust to determine who may live and who must die simply doesn't work in all cases. Other investigative stories have revealed that Texans Carlos DeLuna, who was executed in 1989, and Cameron Todd Willingham, executed in 2004, were almost certainly innocent.

Since 1973, 139 people in 26 states have been released from death row based on evidence of their innocence. Eleven of them were in Texas. Many of these people were freed because of DNA evidence. But DNA testing works only if we use it.

Skinner's execution date is just a few days away, but key pieces of evidence have never been tested, including two knives, one of which might be the murder weapon; a man's windbreaker, which had blood, sweat and hair on it and was found next to the victim's body; the victim's fingernails, which may have DNA evidence under them; and samples from a rape kit.

Skinner has steadfastly maintained his innocence, but his trial counsel did not seek DNA testing. His attorney also failed fully to investigate the potential involvement of another suspect. That man, a relative of Skinner's girlfriend, had a violent criminal history and an incestuous relationship with the victim. He had been seen stalking her at a party on the night of the murder and left the party shortly after she did. His whereabouts for the rest of the night remain a mystery.

This individual also wore a windbreaker like the one found at the murder scene. And the day after the crime, a neighbor says, he frantically scrubbed the interior of his pickup truck, removed the rubber floor mats and replaced the carpeting. DNA evidence may or may not implicate this alternate suspect, but we'll never be certain without testing.

Attorneys for Skinner have filed an appeal with the U.S. Supreme Court asking the court to stop Skinner's execution in order to decide whether prisoners can use the Civil Rights Act to compel post-conviction DNA testing. That's Skinner's last chance, and I hope the court intervenes. But frankly, I'd rather see Texas clean up its own house on this one. Before we send a man to his death, shouldn't we do everything in our power to be certain of his guilt?

Millsap, who served as Bexar County district attorney from 1982 to 1987, has practiced law in San Antonio for 35 years.

Judge’s critics not arguing right facts By Heber Taylor The Daily News Published March 9, 2010 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. The court threw out one conviction, not because it doubted the guilt of the convicted murderer, Thomas Miller-El, but because it found that, for decades, prosecutors in Dallas County “had followed a specific policy of systematically excluding blacks from juries.” That’s a decadeslong problem of procedure that poisoned countless cases. It’s not something that can be covered by an excuse. When the Supreme Court began questioning the practice of executing people for crimes they committed before the age of 18, they looked at Texas, which had 26 such people on death row. When the Supreme Court expressed qualms about executing people who are mentally retarded, it looked at Texas. The U.S. Supreme Court is not obsessed with Texas. The justices were just looking at the most obvious problems. Here are just three: • The possibility of error is great. The problems Texas has had with some of its crime labs are notorious. You’d have to be dense not to wonder about the evidence that has been presented to juries. The state has released people who have spent years in prison after DNA confirmed their innocence. • There are still too many questions about racial bias. • Too often the question of who lives or dies has more to do with money than with justice. Those who can afford to pay for a near miraculous defense often get one. Meanwhile, poor defendants often get poor representation. For the past decade, The Daily News has asked the governor to declare a moratorium on the death penalty and to ask the Legislature to study the problems and address them. We think real leaders would find that an interesting, challenging proposal — a more challenging topic than Judge Fine’s tattoos.

Kids Against the Death Penalty from ECPM on Vimeo.

A Houston judge on Thursday granted a pretrial motion declaring the death penalty unconstitutional, saying he believes innocent people have been executed.

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It's safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society's standard for decency and fairness.

“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?” he said. “I don't think society's mindset is that way now.”

The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty was unconstitutional for their client, John Edward Green Jr.

Loper said he and Keirnan were pleased by Fine's ruling, which will be appealed and almost certainly reversed.

“It's pretty traditional in these cases to file as many motions as you can and try to find something the judge finds approaches unconstitutionality,” Loper said.

If Fine's ruling were to be upheld, it effectively would take away the option of the death penalty in Green's case.

In their motion, Loper and Keirnan assert, “The system that determines who should die in Texas is truly ‘broken.' ”

They argued, and Fine agreed, that the law providing for the procedures surrounding instructions to a jury in the Texas Code of Criminal Procedure violate the Eighth and 14th Amendments to the U.S. Constitution prohibiting cruel and unusual punishment and guaranteeing the right of due process.

DA: ‘It has no basis in law'

Green, 23, is accused of fatally shooting a Houston woman and wounding her sister on June 16, 2008.

Harris County District Attorney Pat Lykos issued a statement disagreeing with Fine's ruling.

“Words are inadequate to describe the Office's disappointment and dismay with this ruling; sadly it will delay justice for the victims and their families,” the statement said. “We will pursue all remedies.”

The statement noted that the Texas Court of Criminal Appeals and other appellate courts consistently have rejected the same arguments.

“We respectfully, but vigorously, disagree with the trial judge's ruling, as it has no basis in law or in fact,” Lykos wrote.

Late Thursday, Texas Attorney General Greg Abbott's office issued a news release calling Fine's ruling “an act of unabashed judicial activism.” Abbott offered to help the Harris County District Attorney's Office appeal the decision. Fine, the statement said, ignored U.S. Supreme Court precedent in granting the motion.

“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,” the statement said.

Fine's decision is unlikely to withstand appellate review, said Sandra Guerra Thompson, professor at the University of Houston Law Center.

“You never know, but I don't see it happening at this time,” Thompson said. “Technically, they're bound by precedent. There are laws on the books that have ruled on this type of question.”

On bench since 2008

Thompson said trial judges sometimes grant rulings that are unlikely to stand up on appeal to start a dialogue in the judicial branch.

“If they feel strongly enough, sometimes they'll grant a motion like this to buck the system, just to stir the waters,” Thompson said.

A Houston judge this afternoon declared the death penalty unconstitutional in a pretrial hearing in response to a motion from defense lawyers.

State District Judge Kevin Fine's ruling is unlikely to withstand appellate review.
Fine granted a motion from defense attorney Bob Loper to declare Texas' death penalty unconstitutional.

Fine was hearing motions Thursday from accused killer John Green's attorneys, and unpredictably granted a motion asking the court to declare the death penalty unconstitutional. Green is suspected of shooting a woman in 2008 and could be executed if found guilty.

"In every capital murder case," Green's attorney, Casey Kiernan, tells Hair Balls, "lawyers always ask the court to rule that the death penalty is unconstitutional. And this time the judge did it. I don't know that this has ever happened before in Harris County. It may be the bravest decision I've ever seen a judge make in more than 30 years as a defense lawyer."

Kiernan says the next move belongs to the prosecution. DA Pat Lykos will have to decide whether to appeal Fine's ruling. Phone calls to the DA's office have so far gone unreturned. Kiernan says he plans on meeting with prosecutors tomorrow to plot out the next steps.
Though it is doubtful that Fine's ruling would pass muster upon appeal, Kiernan is hopeful.
"What the judge is saying is that the system is broken in the state of Texas," says Kiernan. "And he really made a point of saying that more than 200 people have been exonerated. We won a big battle here today."

Updated: DA Pat Lykos has issued her statement.

Words are inadequate to describe the Office's disappointment and dismay with this ruling; sadly it will delay justice for the victims and their families. The Texas Court of Criminal Appeals and other appellate courts have consistently rejected the same issues raised in the Green case.

The decision of whether to seek the death penalty is a solemn and profound responsibility. After a deliberative and thoughtful process this Office reached the conclusion to prosecute Mr. Green for the horrific capital murder he committed and to ask the jury to assess the death penalty. We respectfully, but vigorously disagree with the trial judge's ruling, as it has no basis in law or in fact. We will pursue all remedies.