JOHN GREEN JR. CASE: THE JUDGE FINE FIASCO: MORE NEAT COMMENTARY FROM "DEFENDING PEOPLE: THE TAO OF CRIMINAL DEFENCE TRIAL LAWYERING;"

"MAYBE JUDGE FINE (WHO DOESN’T READ MY BLOG) INTENDS TO DO WHAT I PROPOSED LAST FRIDAY: TEST IN A FULL-BLOWN ADVERSARY PROCEEDING THE ASSERTIONS OF THOSE ON BOTH SIDES OF THE DEATH PENALTY DEBATE. DEFENSE LAWYER CASEY KEIRNAN SEEMS TO THINK THAT’S WHAT IS GOING TO HAPPEN: “FOR THE FIRST TIME . . . WE’RE GOING TO HAVE A HEARING ABOUT WHETHER INNOCENT PEOPLE GET EXECUTED.”"

MICHAEL BENNETT: DEFENDING PEOPLE: THE TAO OF CRIMINAL DEFENCE TRIAL LAWYERING;

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A Houston judge who ruled last week that the proceedings surrounding the Texas death penalty are unconstitutional rescinded his ruling this morning to schedule a hearing for lawyers on both sides to submit arguments on the issue.

(Houston Chronicle, from which the Keirnan and Allen quotes below also come)

"While I wasn’t able to attend this morning, I have it on good authority that the Houston Chronicle’s description of the proceedings is accurate," Michael Bennett's March 9, 2010 column, under the heading "Judge Fine and the Chronicle back off." begins.

"I commend the Chronicle for this, and for bucking the AP in favor of Messrs. Strunk and White’s preferred punctuation of the possessive of Texas," the column continues.

"I appreciate people who are able to admit their mistakes and correct them. It shows strength of character, whether the people are reporters or judges. Judge Fine jumped the gun when he held Article 37.071 unconstitutional. There was no evidence presented in support of the motion, and some of the facts Judge Fine took judicial notice of were not in fact facts. He violated the first rule that judges learn at baby judge school, which is that the best way to avoid reversal is not to rule. Then he violated the second rule that judges learn at baby judge school, which is to not change your ruling once you’ve ruled.

Now the parties have until April 12th to submit briefs; a hearing is scheduled for April 27th. (Which is odd—usually the briefs come after the evidence.) It’s not entirely clear what will happen at the hearing. Maybe Judge Fine (who doesn’t read my blog) intends to do what I proposed last Friday: test in a full-blown adversary proceeding the assertions of those on both sides of the death penalty debate. Defense lawyer Casey Keirnan seems to think that’s what is going to happen: “For the first time . . . we’re going to have a hearing about whether innocent people get executed.”

Strategically, it might have been better for the State had the order stood as originally signed. But both sides should welcome this chance, and they do. Prosecutor Kari Allen says she is “grateful that we have a chance to more fully litigate it.”

There is nobody better (more competent or more appropriate) to develop the case in favor of the death penalty than the Harris County District Attorney’s Office. Let the defense have subpoena power and the resources for an investigation, and see what the evidence shows.

However it shakes out, society wins."

The post can be found at:

http://bennettandbennett.com/blog/2010/03/judge-fine-and-the-chronicle-back-off.html

Harold Levy...hlevy15@gmail.com;