JOHN GREEN JR. CASE; JUDGE KEVIN FINE'S NEXT MOVE; JEFF GAMSO SAYS MARK YOUR CALENDARS FOR APRIL 27 - "THE DAY INNOCENCE GOES ON TRIAL";

AS FOR THE SUPREME COURT, IT REALLY HASN'T ADDRESSED THE ISSUE. AT VARIOUS TIMES FIVE MEMBERS OF THE COURT (NOT FIVE CURRENT MEMBERS I SHOULD ADD, AND NOT IN A SINGLE CASE) HAVE SAID THAT THE EXECUTION OF A FACTUALLY INNOCENT PERSON WOULD BE UNCONSTITUTIONAL. SCALIA HAS, FAMOUSLY, SAID OTHERWISE. BUT THE FIVE DID NOT SAY
THAT THE POSSIBILITY OF IT HAPPENING MAKES THE DEATH PENALTY ITSELF UNCONSTITUTIONAL (NOR WERE THEY ASKED) AND IT'S POSSIBILITY, OR MAYBE LIKELIHOOD, THAT'S MOVING JUDGE FINE. SO MARK YOUR CALENDARS FOR APRIL 27. THE DAY INNOCENCE GOES ON TRIAL.

JEFF GAMSO: OHIO CRIMINAL DEFENCE LAWYER;

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"Meanwhile, Harris County got its process back. At least for a few weeks," Jeff Gamso's March 9, 2010 post on "For the Defence" begins, under the heading "Innocence on Trial."

"You'll recall that on Thursday, in Harris Count (that's Houston for my Yankee audience), Texas, Judge Kevin Fine determined that Section 37.071 of the Texas Code of Criminal Procedure - the section setting out procedures in death penalty cases - was unconstitutional because it allowed innocent people to be sentenced to death and executed," the post continues.

"The ruling came in a pretrial motion filed on behalf of John Edward Green, Jr. in his capital murder case.

Of course, the Harris County District Attorney's office demanded that Judge Fine reconsider, and on Friday he gave the state and the defendant until Wednesday (tomorrow, as I write this) to file memoranda and point to authorities.

He announced that he'd rule on the motion then.

But in a hastily called hearing this morning, the Judge rescinded his order. For now. He's ordered the parties to submit briefs and ordered a hearing for April 27 - after which he may just reinstate that order.

And he's delayed the trial which was to begin at the end of this month.

All that is mighty interesting, but not nearly as interesting as the hearing is likely to be - at least if he allows the parties to present evidence about whether Texas has actually executed innocent people.

For Fine, at least, that's a serious question. Here's Brian Rogers from the Chronicle.

Fine reiterated that his ruling is limited to whether the Texas Code of Criminal Procedures allows for the execution of innocent people. He said there was not any precedent to guide him.

“There's nothing in my research that say's it is OK to execute innocent people so that we may have a death penalty,” Fine said on the bench.

On the other hand, Fine also, it seems, hasn't found anything that says it's not.
Actually, there is precedent.

In 2002, United States v. Quinones, Judge Jed Rakoff issued a pre-trial ruling declaring the Federal Death Penalty Act unconstitutional.

[T]o this Court, the unacceptably high rate at which innocent persons are convicted of capital crimes, when coupled with the frequently prolonged delays before such errors are detected (and then often only fortuitously or by application of newly-developed techniques), compels the conclusion that execution under the Federal Death Penalty Act, by cutting off the opportunity for exoneration, denies due process and, indeed, is tantamount to foreseeable, state-sponsored murder of innocent human beings.

Of course, the decision was quickly reversed by an appellate court.

Judge Rakoff, they said, had looked at evolving standards of decency in resolving a due process question

But those standards only apply to Eighth Amendment cruel and unusual punishment issues.

And, they said, the right to secure exoneration isn't fundamental

Quinones may not be exactly on point, but it's an important piece of what's out there.

As for the Supreme Court, it really hasn't addressed the issue. At various times five members of the court (not five current members I should add, and not in a
single case) have said that the execution of a factually innocent person would be unconstitutional.

Scalia has, famously, said otherwise.

But the five did not say that the possibility of it happening makes the death penalty itself unconstitutional (nor were they asked) and it's possibility, or maybe likelihood, that's moving Judge Fine.


So mark your calendars for April 27. The day innocence goes on trial."The story can be found at:

http://gamso-forthedefense.blogspot.com/2010/03/innocence-on- trial.html

Harold Levy...hlevy15@gmail.com'