Monday, March 8, 2010


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 takes 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." Mark Bennett tells his readers that he got his letter of marque from the Supreme Court of Texas in May 1995 - and that he is famous for having no sense of humor when it comes to totalitarianism.


"Brian Rogers of the Houston Chronicle reported today that Judge Kevin Fine of the 177th District Court “declared the death penalty unconstitutional," the post begins.

"This caused the Chronicle’s anonymous commenters to gibber ignorantly in righteous indignation like a cage full of unusually stupid monkeys. Which is always fun," it continues.

"Paul Kennedy was immediately on the story, for which Jeff Gamso gave him kudos. The Houston Press posted on it, complete with quotes from Brian Wice, Casey Kiernan, and Pat Lykos.

Unfortunately, Brian Rogers’s report is not quite accurate. In fact, it’s far enough from accurate to be totally false. Judge Fine did not declare the death penalty unconstitutional.

Today Judge Fine denied the defendant’s Motion to Declare Death Penalty Unconstitutional Based on Texas’ Lethal Injection Protocol (Scribd) and his Motion to Declare Texas Death Penalty Statute to be Unconstitutional (Jurors’ Inability to Predict Future Dangerousness) (Scribd).

The motion that Judge fine did grant was the defendant’s Motion to Hold that Texas Code of Criminal Procedure Article 37.071 is Unconstitutional:

Motion to Hold that Texas Code of Criminal Procedure Article 37.01 is Unconstitutional:

Here’s article 37.071, Texas’s (screw the AP: if you pronounce the possessive “Texas’s” you should write “Texas’s”) statute dictating procedure in capital cases. Holding the death penalty procedure unconstitutional is not the same as holding the death penalty unconstitutional. It’s a roadbump for the State, sure, but the procedure could, at least theoretically, be corrected to allow the State to go on killing people even if the appellate courts uphold Judge Fine’s ruling. If the procedure is corrected, it can be applied to the accused in this case.

The defense throws everything at 37.071. The motion is a jumbled catalog of ways in which “[t]he system that determines who should die in Texas is truly ‘broken.’” It’s a mixed procedural and substantive due process argument: the process isn’t fair, and it might result in an innocent person being killed by the State.

Judge Fine didn’t specify why he granted the motion. He just granted it. So in order to uphold Judge Fine’s ruling, the courts of appeals will have to review and reject every argument that the defense made. Not that that’s a big hurdle for a Texas appellate court, but first there’s a procedural hitch to the appeal of the order holding the procedure unconstitutional:

The state is entitled to appeal an order of a court in a criminal case if the order:
(1) dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint;
(2) arrests or modifies a judgment;
(3) grants a new trial;
(4) sustains a claim of former jeopardy;
(5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case; or
(6) is issued under Chapter 64 [dealing with forensic DNA testing].

Texas Code of Criminal Procedure Article 44.01.

In holding Texas’s death penalty procedure unconstitutional, Judge Fine didn’t do any of those things listed in article 44.01. So there is no legal authority for the State to appeal. The resulting procedural maneuvering is going to be interesting. The death penalty trial can’t go forward if 37.071 is unconstitutional, but the accused has a right to a speedy trial; the State can’t move to dismiss and then appeal the dismissal. The defendant is accused of aggravated assault as well as capital murder, so the State’s best shot at killing him might be to dismiss the capital murder, try to hold him on the aggravated assault charge until Judge Fine is no longer on the bench, and then refile the capital murder case (on which there is no statute of limitations).

Unfortunately, Brian Rogers’s inaccurate story is going to be the story that the Republicans tell their scared white voters in 2012. Texans still love their death penalty, and a judge who held the death penalty unconstitutional — even if he didn’t—has a steep uphill battle.

[Update: The Texas Lawyer Blog, which interviewed lawyer Casey Keirnan, says that Judge Fine held "Article 37.01" unconstitutional. While that's what the order says, and that's the title of the motion, Article 37.01 has nothing to do with it.]"

The post can be found at: