JOHN EDWARD GREEN; GREAT READ; A NEW YORK CRIMINAL LAWYER STANDS UP FOR JUDGE FINE; MAKES EDITORIALS CALLING FOR DEATH PENALTY DEBATE SEEM SO LAME.

"While it's true that the legislative branch of government could correct all of the problems and issues that were being presented to Judge Fine, that's not its job. The Legislature is a representative body, existing to satisfy the whims of the majority. The judicial branch exists as a check on the whims of the majority. To fulfill this purpose, the judicial branch would have to be allowed the opportunity to hear what problems might exist with these whims. Judge Fine was bold enough to take it on."

SCOTT GREENFIELD: SIMPLE JUSTICE;
----------------------------------------------------------------------------------

BACKGROUND: Texas State District Judge Kevin Fine caused an uproar when he was perceived as ruling that the way the death penalty is currently administered is unconstitutional. Critics are screaming judicial activism, seen as a judicial faux paus and usually a pejorative term; supporters say Fine is a "brave jurist" who has called out death penalty administration on its current merits, or apparent lack thereof. The defendant in this case, 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. The case has victims' right advocates calling for justice. In Texas generally, and in Harris County in particular, justice for a capital murder charge is exactly what the law allows for: the death penalty.

----------------------------------------------------------------------------------

"One of the questions asked by people who aren't lawyers is why trial courts don't deal with the big picture, like the introduction of scientifically flawed evidence, by allowing the defense to introduce testimony that the evidence routinely used to convict is crap," New York criminal defence lawyer Scott Greenfield's post on his Blog "Simple Justice," published on January 14, 2011 begins," under the heading, "At the Appropriate Time."

"Lawyers are trained in materiality and relevance, and can explain the rationale," the post continues.

"But the truth is, it's because some judges lack the guts to take the lead, preferring instead to be part of the crowd, do as others have done before them and take no risk of being wrong. Other judges refuse change because they're pretty satisfied with the way things are now. Many, perhaps the majority, sleep well at night knowing another defendant was convicted. They don't share your concern.

So when Texas Judge Kevin Fine decided to take on the big picture, whether the state could put a person to death based on flawed evidence, it was huge. No judge had ever opened the doors so wide before.

Then bam. The Texas Court of Criminal Appeals slammed the door shut. Slamming doors shut is something of a favorite of Presiding Judge, Sharon "Killer" Keller. But like a good court, the opinion expressed the court's ruling in lawyerly words.

The 6-2 decision agreed with the district attorney's office that there is no basis under Texas law to conduct a pretrial hearing to determine the constitutionality of a law.

In addition to saying Green did not have standing to object, the court repeatedly said that the Legislature, not the trial court, is the proper venue for a debate on capital punishment.

"These are indeed weighty public policy issues, greatly deserving of considerable debate by the appropriate people, in the appropriate forum, and at the appropriate time," according to the opinion.

Of course, the judges are well aware that the "weighty policy issues" have nothing to do with the issues being presented to Judge Fine. Legislatures will argue whether people need killing, and whether their constituents will vote for them it they support killing or not. How they get to the killing isn't their concern. That's for the courts to decide.

Except when a court tried to decide, it was shut down.

In the case of John Edward Green, in whose name all of this is happening for the benefit of the rest of us as well as him, a trial will be had. During the trial, issues may be raised about the quality and validity of the evidence being used to convict him. Those issues will be constrained by the concepts of materiality and relevance. That's how evidence works.

Should Green be convicted of murder, the death penalty will be the focus of punishment. By then, however, the questions of whether a person can be constitutionally put to death based on crap evidence will be moot because he's already been convicted of the crime.

The Texas Court of Criminal Appeals knows that Judge Kevin Fine was doing the unthinkable, putting it all together in one place, at one time, so he could make a decision based on the big picture. They know that the law makes no provision to allow this to happen. Under our scheme, we don't admit that the process developed over centuries with the incremental approval of judge after judge is flawed. Since we don't admit it, there's no reason to have a legal process to correct it.

While it's true that the legislative branch of government could correct all of the problems and issues that were being presented to Judge Fine, that's not its job. The Legislature is a representative body, existing to satisfy the whims of the majority. The judicial branch exists as a check on the whims of the majority. To fulfill this purpose, the judicial branch would have to be allowed the opportunity to hear what problems might exist with these whims. Judge Fine was bold enough to take it on.

The Texas Court of Appeals says that the issues that were being raised and presented to Judge Fine could be resolved at "the appropriate time." They say this knowing that there will never be an appropriate time. Case closed."

----------------------------------------------------------------------------------

The post can be found at:

http://blog.simplejustice.us/2011/01/14/at-the-appropriate-time.aspx?ref=rss


PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;