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Thread: Texas State District Judge Declares Death Penalty Unconstitutional

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    Texas State District Judge Declares Death Penalty Unconstitutional

    Judge grants motion declaring death penalty unconstitutional

    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. Further details about the motion were not immediately available.

    Fine, a judicial maverick, was elected in the 2008 Democratic near sweep of Harris County's benches. The judge came under fire last year for questioning a victim during the punishment phase of rape trial.

    The defendant in Thursday's hearing, John Edward Green, Jr., is accused of fatally shooting a Houston woman and injuring her sister on June 16, 2008.

    Green, 23, faces charges in the shooting death of Huong Thien Nguyen, 34. Nguyen and her sister, My Huong Nguyen, had returned to their home in the 6700 block of Bellaire Gardens about 1:20 a.m. Sunday, when police said Green approached them, made a demand and shot them.

    Huong Thien Nguyen died at the scene. Her sister was taken to Ben Taub General Hospital in critical condition.

    http://www.chron.com/disp/story.mpl/...n/6897252.html

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    August 24, 2009

    After rapist convicted, judge grills the victim

    By LISA FALKENBERG

    When the teen rape victim agreed to take the stand earlier this summer in the trial of her attacker, she was afraid, but mostly prepared for what to expect.

    She'd have to relive the painful details of the night in July 2008 when a man she and a friend met at a club drove them into a wooded area in northern Harris County and raped her while her friend ran for help.

    She'd have to endure tough questioning from the defense. She'd have to face the man who violated her. And most days, she'd have to do it alone.

    Despite the trauma, the nightmares and the panic in public places she'd already experienced, it was worth it to testify, she told me in a phone interview Monday, if it helped get Emiliano Escobar off the streets and prevent him from hurting someone else.

    What she wasn't prepared for was the harsh line of questioning that came not during the guilt or innocence phase, but after Escobar was convicted. And not from the defense, but from the judge of the 177th Criminal Court, Kevin Fine.

    “I felt interrogated. I felt like he was attacking me,” said the victim, a second-year college student at a local university who was 18 at the time of the crime. “The way he talked to me, he made it harder for me. He made it seem like he was on their side the whole time, like I was a liar.”

    The judge crossed the line, she said, during sentencing, which Escobar had opted to let Fine decide instead of a jury. Although the jury already had found Escobar guilty of aggravated sexual assault, Fine went on to challenge the victim's version of events, doubting her truthfulness on details from her vague time line to the method in which her clothing was removed. Near the end, Fine remarked that “sending an innocent man to prison in the name of law and order is the greatest injustice this society can do.”

    What shocked the victim most was when the judge questioned whether she was really raped since he found it “odd” that was she was on top of Escobar during the assault. The judge required the victim to recount, in detail, her position during the rape and explain how Escobar, who maintained the sex was consensual, was able to force himself on her.

    “I know these are tough questions and I don't like to have to ask them,” the judge told the victim, according to a July 31 transcript, released late last week. “It's just you understand that most rapes take place with the man on top so he has complete control of the female.”

    The question drew an objection from Prosecutor Ed McClees, who questioned the relevance in a tense exchange. The judge argued the law allowed him to consider facts and circumstances of the offense to determine the appropriate punishment.

    The victim testified that she repeatedly fought her attacker, but that he wasn't fazed by the blows to his face and was able to force himself on her. All the while, she said, Escobar threatened to put her “in the bayou,” claiming to have killed five people already and saying he'd do the same to her with a knife she believed he had in his pocket.

    Fine, a newly elected Democratic judge who previously worked as a defense attorney, said he could not comment on the pending case, which is on appeal. But, in a statement published earlier this month on the Houston Press' Hair Balls blog, the judge acknowledged he could have used more tact in questioning the victim.

    Fine said he should have expressed his concerns with the case in private and let counsel for both sides “flesh it out.”

    What he should have done, of course, is stick to his new role of judge and leave the defense to the defense.

    Whether he meant to or not, Fine has sent a troubling message about sexual assault. Coercion comes in many forms. By gunpoint or perceived threat. From a stranger, or a boyfriend. And in various positions.

    Juries, even in Houston, don't convict in rape cases easily, and when they do, it's not the judge's place to second-guess the verdict.

    In the end, the judge apparently reconciled his concerns about conflicting time lines and other testimony and acknowledged the compelling evidence that led him to sentence Escobar to 25 years in prison: After listening to the 911 tape of the screaming girls “for the sixth time,” Fine told the court, “there's no doubt in my mind” that “no means no, period.”

    If only he'd come to that conclusion without having to re-victimize the victim first.

    http://www.chron.com/disp/story.mpl/...g/6585779.html

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    Here is the State Attorney General Response:

    Attorney General Abbott's response to a Houston judge's decision on Thursday to grant a motion declaring the death penalty unconstitutional

    "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."

    http://www.oag.state.tx.us/oagNews/release.php?id=3237

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    Statement by Gov. Rick Perry in response to a Houston judge declaring the death penalty unconstitutional

    March 04, 2010

    AUSTIN – Gov. Rick Perry today issued the following statement regarding a Houston judge ruling the death penalty unconstitutional:

    "Today’s ruling is an example of an activist judge legislating from the bench in blatant disregard of opinions issued based on both the Texas and U.S. Constitutions. Like the vast majority of Texans, I support the death penalty as a fitting and constitutional punishment for the most heinous crimes. This is a clear violation of public trust and I fully support the Harris Co. District Attorney’s decision to pursue all remedies."


    http://highplainsobserver.com/defaul...&sdetail=12965

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    Statement by Gov. Rick Perry in response to a Houston judge declaring the death penalty unconstitutional

    March 04, 2010

    AUSTIN – Gov. Rick Perry today issued the following statement regarding a Houston judge ruling the death penalty unconstitutional:

    "Today’s ruling is an example of an activist judge legislating from the bench in blatant disregard of opinions issued based on both the Texas and U.S. Constitutions. Like the vast majority of Texans, I support the death penalty as a fitting and constitutional punishment for the most heinous crimes. This is a clear violation of public trust and I fully support the Harris Co. District Attorney’s decision to pursue all remedies."


    http://highplainsobserver.com/defaul...&sdetail=12965

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    Judge clarifies death penalty ruling

    HOUSTON (KTRK) -- It's not something a judge does every day, but Judge Kevin Fine was clear in defending and explaining his own ruling.

    "That is, we execute innocent people," he said Friday.

    The remark was in response to his historic ruling Thursday which granted a standard defense pre-trial motion to declare the death penalty unconstitutional. Judge Fine, in a 15-minute speech, posed this rhetorical question.

    "Whether we as a society, knowing that we execute innocent persons, desire to continue to ignore that reality," he said.

    However, the Harris County district attorney says there is another reality to consider

    "I see this as unnecessarily delaying justice," said Harris County District Attorney Pat Lykos.

    Prosecutors have already filed their own motions, asking the judge to reconsider. Regardless of the outcome, the Harris County DA's office says Judge Fine's ruling will not cause judicial upheaval.

    "It is our considered opinion it will have no impact on any of the cases currently pending in courts other than the 177th district court of Harris County," said Lykos.

    The capital murder case involved defendant John Green, accused of shooting two sisters. One of them died. The crime happened in front of the victim's two children. The defense believes Judge Fine's ruling will have historic consequences.

    "I think this is the first step in what I think is the beginning of the end of the death penalty in the state of Texas," said defense attorney Casey Keirnan.

    In the meantime, the Harris County DA has filed a motion with the appellate court to overturn Judge Fine's ruling. It's also filed two motions for the judge to reconsider.

    http://abclocal.go.com/ktrk/story?se...rticle-7313890

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    Death penalty case to go forward for now

    HOUSTON (KTRK) -- Judge Kevin Fine made headlines with his ruling last week declaring the death penalty unconstitutional. Today he has rescinded his order for now, but he hasn't changed his mind.

    Judge Fine's historic ruling Thursday granted a standard defense pre-trial motion to declare the death penalty unconstitutional. On Friday, in a 15-minute speech, he clarified his position, posing this rhetorical question.

    "Whether we as a society, knowing that we execute innocent persons, desire to continue to ignore that reality," he said.

    In a hearing today, Judge Fine announced that he wants lawyers from both sides to present evidence at a hearing on April 27 on whether the death penalty is unconstitutional. For now, the case will proceed as a death penalty case.

    The capital murder case involves defendant John Green, accused of shooting two sisters. One of them died. The crime happened in front of the victim's two children. A date has not been set for the trial to begin.

    http://abclocal.go.com/ktrk/story?se...rticle-7320601

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    State's Death Penalty Statute at Issue in Upcoming Hearing

    A Houston judge who declared the state's death penalty statute unconstitutional has set an April 27 hearing to consider the issue.

    The statute is Texas Code of Criminal Procedure Article 37.071, which sets out the requirements when the state seeks the death penalty against a defendant in a capital case.

    John Niland, trial project director for the Texas Defender Service (TDS) in Austin, predicts that 177th District Judge Kevin Fine's holding in the capital murder case of John E. Green will have a "ripple effect," prompting more criminal-defense attorneys to file motions seeking rulings that Texas' death penalty scheme is unconstitutional.

    "This will not be the last case in which similar arguments are made," says Niland, who is not involved in State v. Green.

    Alan Levy, head of the criminal division in the Tarrant County District Attorney's Office who also is not involved in Green , says he believes the biggest impact of the Green case has been to attract public attention to the death penalty issue.

    "I'm sure prosecutors will prevail in this case," says Levy . "The strategy among the defense bar and anti-death penalty people is to wear the state down."

    http://standdown.typepad.com/

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    DA wants controversial judge off death penalty case

    HOUSTON (KTRK) -- Harris County District Attorney Pat Lykos wants a judge who ruled the death penalty unconstitutional to pull himself off a death penalty case.

    The DA's office filed a motion asking Judge Kevin Fine to recuse himself, accusing the judge of bias against the death penalty. Back on March 9, Judge Fine rescinded his ruling just five days after saying the death penalty violated due process provisions of the U.S. Constitution.

    A hearing in the case is scheduled for late April.

    Judge Fine is up for re-election in November 2012.

    http://abclocal.go.com/ktrk/story?se...rticle-7363765

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    DA: Texas judge has death penalty bias

    HOUSTON -- A Texas judge who declared the death penalty unconstitutional is refusing a request from the Harris County District Attorney's Office to remove himself from the case that prompted the highly criticized ruling.

    Prosecutors want state District Judge Kevin Fine off the case, accusing him of bias against capital punishment.

    In a ruling last month in a capital murder case over which he is presiding, Fine said it is safe to assume that Texas has put innocent people to death. He also questioned whether society, considering the recent history of death row inmate exonerations, can continue to ignore this reality.

    Fine later rescinded his ruling but scheduled a hearing for the end of this month to hear evidence on the issue. The status of that hearing is now unclear.

    http://www.theeagle.com/texas/DA--Te...h-penalty-bias

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