Friday, March 5, 2010

More on Judge Fine's ruling

As promised yesterday, there is more to say about Judge Fine's ruling that Article 37.071 of the Texas Code of Criminal Procedure is unconstitutional. Judge Fine's ruling did not state that the death penalty itself was unconstitutional, but that the procedure by which a defendant is sentenced to death is.

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:

"Judge Fine on constitutionality of 37.071" Defending People (Mar. 4, 2010)
"Judge declares death penalty unconstitutional" Houston Chronicle (Mar. 5, 2010)


Luke said...

I found the drug cocktail argument in one of the orders puzzling in that I thought that was settled in Baze v. Rees, but so no mention of the case.

dudleysharp said...

From Dudley Sharp, contact info below

In finding the death penalty unconstitutional, Judge Fine could hardy be less judicious or more irresponsible.

Preliminarily, it appears Judge Fine based his unconstitutional finding upon executing innocents. It also appears that he just accepted defense attorney claims without fact checking them.

The 200 released number used by Judge Fine appears to be an inaccurate counting of DNA freed cases, as per the Innocence Project, for the entire prison population, not just death row. I suspect the judge received that inaccurate number from defense counsel.

It's nearly irrelevant to death row.

The decision appears similarly based to the one made by New York Federal District Court Judge Jed Rakoff in the Quinones case, whereby Rakoff found the federal death penalty statute unconstitutional. I stated, then, that it was an obviously idiotic decision which would quickly be overturned. It was. At least Rakoff fact checked.

There is no proof of an innocent executed in the US, at least since 1900.

In the modern death penalty era, possibly, 25 inmates have been released from death row based upon actual innocence.

25 not 200.

That is about 0.3% of those sentenced to death since 1973.

Likely, there is not a more accurate sanction when it comes to convicting the actually guilty and freeing the actually innocent.

In addition, innocents are more protected with the death penalty than with the lesser sanction of life without parole.

"The Death Penalty: More Protection for Innocents"

The 130 (now 139) death row "innocents" scam

"The Innocent Executed: Deception & Death Penalty Opponents"

Sincerely, Dudley Sharp
e-mail, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Houston DWI Attorney Paul B. Kennedy, said...

Thank you for your comment. While you may disagree with Judge Fine's ruling that does not make it unconstitutional. Whether or not his ruling stands is up for question. The state may not be able to appeal his decision based on Article 44.01 of the Texas Code of Criminal Procedure.

dudleysharp said...


My writing was not clear.

What I meant was "Judge Fine based his ruling that the death penalty was unconstitutional" upon innocents executed.

Bad sentence structure.