Art. 37.071 lays out the procedure to be followed in a capital case in Texas. The motion, submitted by defense attorneys Casey Kiernan and Robert Loper, argued that the very procedure by which the jury determines whether a defendant should be executed or sentenced to life in prison is flawed.
Of particular note is the argument that there is no scientific basis behind the testimony of state's experts regarding the "probability that a defendant would commit criminal acts of violence that would constitute a continuing threat to society." The motion also argues that the state should be required to prove unadjudicated offenses beyond a reasonable doubt. The motion also references the number of men exonerated from this nation's death rows.
Judge Fine may have walked out onto a limb with yesterday's ruling - if one were to listen to the crescendo from the right - but he isn't the first judge to depart from stare decisis. Every time the Supreme Court issues a "landmark" ruling overturning an earlier rule of law, that process began with one judge breaking with past precedent and making a ruling that he or she felt was right.
For more analysis, please see:
"Even in Texas, the death penalty still constitutional" Defending People (Mar. 4, 2010)
"Judge Fine on constitutionality of 37.071" Defending People (Mar. 4, 2010)
"Harris County judge declares death penalty unconstitutional; we're guessing there will be an appeal" Houston Press (Mar 4, 2010)
"Houston judge declares death penalty unconstitutional" Tex Parte Blog (Mar. 4, 2010)
"Judge declares death penalty unconstitutional" Houston Chronicle (Mar. 5, 2010)