JOHN GREEN JR: HOUSTON CHRONICLE: JUDGE RULES DEATH PENALTY UNCONSTITUTIONAL; FOLLOWED BY JUDGE KEVIN FINE'S "CLARIFICATION" OF THE DECISION;

"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 SINCE 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. "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."……...PERRY ALSO SLAMMED FINE'S RULING, 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."

JUAN A. LOZANO; THE ASSOCIATED PRESS;

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"HOUSTON — A Texas judge in the county that sends more inmates to death row than any other in the nation is apparently taking a stand," the Associated Press story by reporter Juan A. Lozano, published Thursday, begins, under the heading "Texas judge says death penalty unconstitutional."

"Saying he could assume that innocent people have been executed, state District Judge Kevin Fine ruled in a pre-trial motion in a capital murder case on Thursday that the death penalty was unconstitutional and found himself on Friday facing a torrent of criticism from a string of high-profile Texans including Gov. Rick Perry," the story continues.

"Fine, a Democrat who is heavily tattooed and says he is a recovering alcoholic and former cocaine user, answered some of the criticism during a court hearing Friday.

"To say that I am ignoring precedent or legislating from the bench I think is slightly overreaching," he said.

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 since 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.

"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."

On Friday, Fine said he was only focusing on the due process issue the motion brought up and the only guidance on that issue is what has been provided by the U.S. Supreme Court "that places a duty on trial courts to act as gatekeepers in interpreting the due process claim in light of evolving standards of fairness and ordered liberty."

"So I am now charged with interpreting such evolving standards and I'm called upon to assess the current state of our society's standards of fairness and ordered liberty in light of what we as a society now know. And that is that we execute innocent people. This is supported by the exoneration of individuals off of America's death rows."

At a news conference Friday, Harris County District Attorney Pat Lykos said the defense team's legal arguments are not new and have been previously ruled upon by state and federal courts.

"The Texas death penalty statute is constitutional. We have had executions this year with due process raised," she said. "I see this as unnecessarily delaying justice."

But Casey Keirnan, one of Green's defense attorneys, disagreed with Lykos, saying the due process arguments he and co-counsel Robert Loper argued are new within the context of recent exonerations.

"I predict today is the beginning of the end of the death penalty in Texas," he said. "It has to start somewhere. For Kevin Fine to say not on my watch is one of the bravest things for a jurist to do."

Lykos described Keirnan's comments on the end of the death penalty as "hyperbole."

Fine was expected on Wednesday to rule on prosecutors' motions to have him reconsider his decision or to still proceed with the trial as a death penalty case.

If Fine rejects those motions, prosecutors are expected to take their case to the Texas Court of Criminal Appeals in Austin. It was unclear how long that appeals process could take but any appeal will likely delay the trial, which had been set to begin with jury selection on March 31, prosecutors said.

Texas Attorney General Greg Abbott, who called Fine's ruling one of "unabashed judicial activism," offered to help the district attorney appeal Fine's decision, which Abbott said ignored U.S. Supreme Court precedent.

"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," said Abbott, a Republican.

Perry also slammed Fine's ruling, 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.

"This is a clear violation of public trust and I fully support the Harris County District Attorney's decision to pursue all remedies," Perry said."The story can be found at:

http://www.google.com/hostednews/ap/article/ALeqM5hJjNzsQw2EkiMdsxPajJMR64dMJAD9E8PET80

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HOUSTON CHRONICLE REPORTS EARLIER TODAY - SATURDAY 6 MARCH 2010 - THAT JUDGE KEVIN FINE HAS "CLARIFIED" HIS RULING; THE STORY RAN UNDER THE HEADING: JUDGE KEVIN FINE CLARIFIES RULING, NAINTAINS INNOCENT PEOPLE HAVE BEEN EXECUTED;

"A Houston judge who declared the death penalty unconstitutional Thursday clarified his ruling in an impromptu hearing Friday, saying he ruled the procedures surrounding the process in Texas are illegal," the story begins.

"During Friday's hearing, prosecutors filed motions asking state District Judge Kevin Fine to reconsider his ruling and also to proceed with April's death penalty trial of John Edward Green Jr., the story continues.

"Fine maintained at the hearing that he believes innocent people have been executed.

Fine's clarification came in the wake of a firestorm of criticism from District Attorney Pat Lykos, the Texas Attorney General's Office and Gov. Rick Perry protesting that Fine ignored well-settled law.

Fine is expected to rule on the motions next week. He did not return calls for comment Friday.

When asked direct questions Thursday about his ruling, Fine said he was declaring the death penalty unconstitutional because he believes innocent people have been executed.

Dissecting the ruling:

Friday, Fine clarified that he declared the procedures Texas has in place to carry out the death penalty unconstitutional, a legal parsing even to the prosecutors trying the case.

“As a practical matter, if you strike down that statute, you're not necessarily striking down ‘the death penalty' but you're striking down the way we try death penalty cases,” said Bill Exley, an assistant Harris County district attorney. “So the effect is that you can't have a death penalty because you can't get there.”

Exley and Assistant District Attorney Kari Allen are pursuing the death penalty for Green in the robbery and fatal shooting of Huong Thien Nguyen, 34, on June 16, 2008.

‘Beginning of the end'

Police said she and her sister, My Huong Nguyen, had returned to their home in the 6700 block of Bellaire Gardens about 1:20 a.m. when Green approached them, demanded money and shot them.

Green's lawyers, Bob Loper and Casey Keirnan, heralded the decision as the “beginning of the end of the death penalty.”

“We don't necessarily think we're the ones who will make this happen. But it certainly is a chink in their armor. This is going to raise everyone's consciousness,” Loper said. “It appears as though it's going to go up on appeal. It certainly has people talking.”

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

Most legal commentators said the ruling wouldn't stand up at the appellate level.
A past president of the Harris County Criminal Lawyer's Association summed up the mechanics of the ruling.

“He did not rule that the death penalty is unconstitutional,” said Mark Bennett, a criminal defense lawyer. “He ruled that a procedure that allows the execution of innocent people is unconstitutional.”

‘First impression'

In court, Fine said there were no guiding cases on this particular point.

“There is no precedent to guide me in resolving this particular issue,” Fine said. “As far as I know it is an issue of first impression.”"

Harold Levy...hlevy15@gmail.com;