Harris County judge rescinds order in death penalty case

Judge Kevin Fine, who presides over Harris County's 177th Judicial District Court, has rescinded his finding that the procedure used to sentence defendant's to death is unconstitutional. Judge Fine has scheduled a hearing on a defense motion to declare Article 37.071 of the Texas Code of Criminal Procedure unconstitutional for April 27, 2010. Both sides are to submit briefs by April 12, 2010.

At issue is whether Art. 37.071 allows innocent persons to be executed.

As to that question, the answer has to be yes. We know that innocent people are convicted of criminal offenses - whether it be speeding, drunk driving, sexual assault or murder - even with the state having to prove the elements of the alleged offense beyond all reasonable doubt. The jury must then decide whether "there is a probability that the defendant would commit criminal acts of violence" that would constitute a "continuing threat to society" and whether the defendant either intended to kill the victim or anticipated that a life might be taken.

Unlike the unanimous verdict required to convict, only 10 jurors must agree on the answers to both of the questions above. In other words, do 10 out of 12 people think a person might commit more acts of violence? You factor this in with the disqualification of potential jurors who could not vote for the death penalty and you have a combustible chamber just waiting to order the needle.