JOHN GREEN JR. CASE: HERE WE GO AGAIN! JUDGE FINE TAKES BACK HIS RULING, ASSOCIATED PRESS REPORTS;

"ATTORNEYS FOR JOHN EDWARD GREEN JR. ARGUED TEXAS' DEATH PENALTY STATUTE IS UNCONSTITUTIONAL BECAUSE IT VIOLATES THEIR CLIENT'S RIGHT TO DUE PROCESS OF LAW UNDER THE 5TH AMENDMENT BECAUSE HUNDREDS OF INNOCENT PEOPLE AROUND THE COUNTRY HAVE BEEN CONVICTED AND SENT TO DEATH ROW AND LATER EXONERATED.

FINE SAID IN HIS RULING THURSDAY THAT IT IS SAFE TO ASSUME INNOCENT PEOPLE HAVE BEEN EXECUTED. A STRING OF HIGH-PROFILE TEXANS, INCLUDING GOV. RICK PERRY, STRONGLY CRITICIZED FINE'S RULING LAST WEEK. FINE DECLINED TO COMMENT TUESDAY ON WHY HE TOOK BACK HIS RULING."

REPORTER JUAN LOZANO; ASSOCIATED PRESS;

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PUBLISHER'S NOTE: This Blog recently devoted a post to a Houston Chronicle story on the John Green Jr. story, which reported that Judge Kevin Fine had ruled Texas's death penalty unconstitutional. Houston criminal defence lawyer Mark Bennett later took issue with the Chronicle report (or should I say "eviscerates" the story)in a post filed on March 4, 2010 on his Blog, Defending People: The Tao of defence trial lawyering, under the heading, "Even in Texas, Death Penalty Still Constitutional." It now appears that Justice Fine is having second thoughts.

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"HOUSTON — A Texas judge who came under criticism for his ruling declaring the death penalty unconstitutional took back his controversial decision on Tuesday," the Associated Press story by reporter Juan Lozano, published earlier today, begins, under the heading "Texas judge rescinds anti-death penalty ruling."

"However, Judge Kevin Fine said he still wants more information on whether the state's death penalty statute is unconstitutional because it allows for the possible execution of an innocent person," the story continues.

"The Democrat who is heavily tattooed and says he's a recovering alcoholic and former cocaine user, is a state district judge in the county that sends more inmates to death row than any other in the nation.

During a court hearing Tuesday, Fine rescinded his ruling, which he made last week in granting a pretrial motion in a capital murder case. But he asked Harris County prosecutors and defense attorneys to submit motions on the issue.

A hearing in the case is set for April 27, and Tuesday's decision will delay the trial, which had been set to begin with jury selection at the end of this month.

Fine said there was no precedent to guide him in resolving the issues raised by defense attorneys in a case involving a man accused of fatally shooting a Houston woman and wounding her sister during a robbery in front of their home in June 2008.

Attorneys for John Edward Green Jr. argued Texas' death penalty statute is unconstitutional because it violates their client's right to due process of law under the 5th Amendment because hundreds of innocent people around the country have been convicted and sent to death row and later exonerated.

Fine said in his ruling Thursday that it is safe to assume innocent people have been executed. A string of high-profile Texans, including Gov. Rick Perry, strongly criticized Fine's ruling last week. Fine declined to comment Tuesday on why he took back his ruling.

"We are reviewing the court's latest ruling and are briefing the issues," said Donna Hawkins, a spokeswoman for the Harris County District Attorney's Office.

An attorney for Green did not immediately return a telephone call seeking comment.

A court hearing in the case had been set for Wednesday, when Fine was expected to rule on prosecutors' motions to have him reconsider his decision or to still proceed with the trial as a death penalty case. Tuesday's hearing was called at the last minute.

Texas Attorney General Greg Abbott last week called Fine's ruling one of "unabashed judicial activism." Perry also slammed it, saying he supports the death penalty as do the majority of people in Texas.

Last year, the state executed 24 people, including six cases from Harris County. Three people have been executed so far this year, none from Harris County."

The story can be found at:

http://www.google.com/hostednews/ap/article/ALeqM5hJjNzsQw2EkiMdsxPajJMR64dMJAD9EBA0U00

Harold Levy...hlevy15@gmail.com;