JOHN EDWARD GREEN JR: MARK BENNETT ON "THE PRESUMPTION OF INNOCENCE IN HARRIS COUNTY";

"I KNOW THAT THE PRESUMPTION OF INNOCENCE IS A RULE MORE HONORED IN THE BREACH THAN IN THE OBSERVANCE AMONG THE HARRIS COUNTY JUDICIARY, AND I KNOW THAT THE IDEA THAT JUDGES SHOULDN’T ACT LIKE AUXILIARY PROSECUTORS IS A NOVELTY TO YOU—WHEN ALL YOU KNOW IS JUDGES WHO ARE BIASED TOWARD YOU, A JUDGE WHO IS UNBIASED SEEMS BIASED AGAINST YOU. BUT JUDGE FINE, IN ASSUMING THAT MR. GREEN IS INNOCENT, IS NOT DEMONSTRATING HIS FAVORITISM TOWARD THE DEFENDANT; HE’S DOING EXACTLY WHAT HE’S SUPPOSED TO DO."

MARK BENNETT: DEFENDING PEOPLE: THE TAO OF CRIMINAL DEFENCE TRIAL LAWYERING; (Mark Bennett tells readers that he got his letter of marque from the Supreme Court of Texas in May 199 and that he is famous for having no sense of humor when it comes to totalitarianism.)

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BACKGROUND; John Edward Green, Jr, is charged with capital murder in the 2008 slaying of one of two sisters he allegedly shot during a robbery. Witnessed by the victim's two children, Huong Nguyen, 34, was killed in her own driveway. Judge Kevin Fine brought the case considerable attention after he said that the procedures for imposing the death penalty in Texas are unconstitutional, clarified that decision, then rescinded it but scheduled a hearing on actual innocence for April 27." The Associated Press reported on April 9, 2010, that Judge Fine has refused to recuse himself. A hearing will be held before another judge.


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PUBLISHER'S NOTE: As publisher of the Defending People: The Tao of criminal defence trial lawyering, Mark Bennett demonstrates both an understanding of the nitty-gritty of criminal procedural and an appreciation of the bedrock principles of criminal law - as is evidenced by his recent post on John Edward Green Jr., Judge Kevin Fine and the presumption of Innocence. It's called: "The presumption of Innocence in Harris County." Wikipedia informs us that: "Harris County is a county located in the U.S. state of Texas within the Houston–Sugar Land–Baytown metropolitan area. As of 2000 U.S. Census, the county had a population of 3,400,578 (though a 2008 estimate placed the population at 3,984,349), making it the most populous county in Texas and the third most populous county in the United States. Its county seat is Houston[2], the largest city in Texas. Harris County is named for John Richardson Harris, an early settler of the area."
Harold Levy.

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""But the issue of the defendant’s innocence must be resolved at the guilt stage of trial, not by the trial judge at a pretrial hearing. Judge Fine has demonstrated his favoritism toward the defendant in this case by implicitly making that determination prior to trial.

And he reiterated his assumption that the defendant was innocent by noting that society is not “willing to let our own be the sacrificial lambs,”" Bennett's April 8, 2010 post begins.

"These are quotes from the State’s Motion to Recuse Judge Kevin Fine from the John Edward Green case," the post continues.

"The defendant’s innocence is not an “issue” to be resolved at the culpability stage of the trial. “Innocence” won’t enter into it. And while you may argue that a guilty verdict is proof that a defendant is not factually innocent, we know that this is not so. Lots of factually innocent people are found guilty; some of them go to death row. In fact, the point of Judge Fine’s inquiry (as I understand it) is to determine whether the process by which we convict people of capital murder and sentence them to death is accurate enough for us to rely on it.

I know that the presumption of innocence is a rule more honored in the breach than in the observance among the Harris County judiciary, and I know that the idea that judges shouldn’t act like auxiliary prosecutors is a novelty to you—when all you know is judges who are biased toward you, a judge who is unbiased seems biased against you. But Judge Fine, in assuming that Mr. Green is innocent, is not demonstrating his favoritism toward the defendant; he’s doing exactly what he’s supposed to do.

And some people wonder why I don’t think very highly of the prosecutorial profession.

“CJCLawyer,” whose anonymous comment somehow snuck through, commented:

There is a difference between a person being presumed innocent and actual innocence. I think the motion refers to Fine presuming actual/factual innocence.

He or she is wrong. A person is legally innocent (in other words, “not guilty”) until proven guilty; at the same time he is presumed factually innocent (in other words, “innocent”). As Rusty Hardin, ex-alpha-prosecutor and trial lawyer, says, the presumption of innocence “means he didn’t do it until they prove he did.”"

The prosecutor's motion to remove Judge Kevin Fine from the death penalty case can be found at:

http://www.scribd.com/doc/29308903/State-s-Motion-to-Recuse-Judge-Fine-from-Death-Penalty-Case

The post can be found at:

http://bennettandbennett.com/blog/2010/04/the-presumption-of-innocence-in-harris-county.html

An example of Bennett's procedural mastery - his analysis of the U.S. Supreme Court decision in the Hank Skinner case - can be found at:

http://bennettandbennett.com/blog/2010/03/procedure-geek-the-skinner-case.html

Harold Levy...hlevy15@gmail.com;