More news, documents, and analysis of Kevin Fine’s order holding the Texas death penalty procedure statute, Code of Criminal Procedure Article 37.071, unconstitutional:

Yesterday I brought you the motion, and the order Judge Fine signed. I explained how the press had the story wrong (the death penalty isn’t unconstitutional; the procedural statute is; correcting the statute would put the State back in the death penalty business in the 177th).

More documents today (thanks to my friends in the DA’s Office for copies of the first transcript and the State’s two motions), and some analysis. Jump to the bottom if the details of the argument don’t interest you.

Here’s the transcript of the portion of the hearing yesterday at which Judge Fine dealt with the unconstitutionality of Article 37.071:
Green Fine Transcript 1

The motion filed by the defense is a standard one. It’s probably been filed in dozens of death penalty cases, and summarily denied in each. In this transcript Kari Allen, one of the two lawyers for the State, says, “we could not find any cases that directly address just the system being broken because it isn’t really a constitutional issue.” This might turn out to be important in our discussion of the procedure by which the State might get the order reviewed. Allen does cite Scheanette v. State, 144 S.W.2d 503 (Tex. Crim. App. 2004), in which the Court of Criminal Appeals held:

While the execution of an innocent person might violate federal due process and be considered cruel and unusual punishment, appellant does not claim that he is innocent. He therefore fails to demonstrate that his due process rights or his right to be free from cruel and unusual punishment have been violated by application of our death-penalty statute.

So if you are convicted and sentenced to death, you have to claim innocence in order to complain that the death-penalty statute is unconstitutional because it results in the execution of innocents. In the current case, Green’s lawyer argues (at page 24):

I think that we could just stand on the ground of saying that the State is not going to be able to prove their case beyond a reasonable doubt to make us innocent enough to claim relief. . . .

Judge Fine replied:

Okay. For purposes of this motion, I will take it that your argument is that your defense will be someone else committed this offense, therefore, your client is innocent of the offense.

And Green’s other lawyer seized on this:

It certainly includes that too, Judge. Yes, sir.

This claim of innocence should be enough to give Green standing to complain about the statute—if (by contrast) the law is that an accused has to demonstrate his innocence before getting relief because the Texas death penalty procedure statute leads to the conviction and execution of the innocent, then the statute will never be reviewed because anyone who demonstrates his innocence will not be found guilty, and innocent people will continue being executed. The problem with the statute is that innocent people aren’t always able to demonstrate their innocence, and so they get caught in the machine. Don’t (factually) guilty people have the right to be tried in a system that only executes (factually) guilty people?

Judge Fine takes notice that over 200 death row inmates have been exonerated. That’s probably incorrect. Over 200 people have been exonerated by DNA, but not all of them were on death row.

At page 25, Judge Fine questions Green’s lawyers about U.S. v. Quinones, cited in the motion, and Green’s lawyer clearly has no idea what Quinones is about.

Beginning on page 26, Judge Fine introduces the notion that he’s the gatekeeper of the law, who has to decide “what our evolving standards of fairness and ordered liberty are.”

If—if they are such that society believes it to be okay to execute innocent people, whether that be one or a thousand so that a state, specifically the State of Texas, can have a death penalty so that those that might be deserving of the penalty of death can actually be put to death, whether or not that—that trade-off would meet our current standards of fairness and ordered liberty.
. . . .
With no other guidance from a higher court other than the guidance charging the trial courts with the duty of being gatekeepers, this is probably the most difficult decision I’ve had to make in my limited time on the Bench. But I am not prepared to say that our society, that our citizenry is willing to let innocent people die so that the State of Texas can have a death penalty.

This is the heart of Judge Fine’s rationale: that it’s his job (subject to appellate review) to decide what society’s standards are; that innocents have been will be executed; and that society is no longer, in light of increased knowledge of the danger that innocents will be convicted, willing to take that risk.

As I noted yesterday, the State has no statutory authority to appeal the judge’s ruling from yesterday. They need to set up something to make the ruling appealable. There might be two ways to do this. The first is to turn the judge’s ruling into an order that dismisses the indictment or some portion of the indictment; that order would be appealable under Article 44.01 of the Texas Code of Criminal Procedure.

Green State Motion Proceed to Trial

The second way to get appellate review is to get a mandamusable order. I hadn’t read the mandamus cases from the Texas Court of Criminal Appeals until today, but the court has expanded “ministerial duties” the traditional subject of mandamus, to include “judicial action that ignores clear, binding precedent from a court of superior jurisdiction.” State ex rel Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994). In its Motion to Proceed to Trial the State is trying to get Judge Fine to do something—to refuse to proceed under Article 37.071—that ignores clear, binding precedent. Here Kari Allen’s assertion that the State could find no cases on point militates against mandamus.

Green State Motion Reconsider

The State’s Motion to Reconsider suggests that Judge Fine’s ruling was predicated on inaccurate information—that Quinones is not the law even in the 2nd Circuit, that only about ten death row dwellers have been exonerated by DNA evidence (pick your statistic—the Death Penalty Information Center says that at least 48 people “have been released from prison after serving time on death row since 1930 with significant evidence of their innocence”), and that it hasn’t been proven that any innocent person has been executed. And that’s all there is to that.

Of course, most people sent to prison or death row aren’t lucky enough to have DNA evidence available to exonerate them. They aren’t any less likely to have been wrongly convicted, but nobody is likely ever to prove it. As long as Rick Perry and John Bradley keep obstructing the review of evidence in Cameron Todd Willingham’s case, Willingham, at least, won’t be proven to have been wrongfully executed.

Today Judge Fine conducted a hearing at which he clarified yesterday’s order. I lucked into the hearing—I didn’t have anything on my docket this morning, but I went down to the courthouse to pick up some subpoenas and ran into a news cameraman who was headed to the 177th for Judge Fine to clarify his ruling. I didn’t have my laptop and Mifi with me, so I couldn’t blog from there, but I was able to observe the hearing and get the State’s motions and the second transcript hot off Linda Hacker’s printer.

Green Fine Transcript 2

Those who were hoping that Judge Fine would say, “The Houston Chronicle got it right; I’m holding that the death penalty is unconstitutional” (cough, cough, Brian) were disappointed. Judge Fine’s clarification was this:

My holding with regard to the Defense motion is limited only to the due process claim that 37.071 has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons.

Here, thanks to Channel 13 News, is the video of Judge Fine’s clarification of his holding today:

Judge Fine asks both sides to provide any authority to guide him in resolving the issue.

All I can do, as this issue has been raised, is go by what guidance there is; and the only guidance that I have found is that provided by the United States Supreme Court that places a duty on trial courts to act as gatekeepers in interpreting the due process claim in light of evolving standards of fairness and ordered liberty.
Clearly I have been charged with that duty. So I am now charged with interpreting such evolving standards and I’m called upon to assess the current state of our society’s standards of fairness and ordered liberty in light of what we as a society now know. And that is that we execute innocent people. This is supported by the exoneration of individuals off of America’s death rows.

I don’t see where that language—”fairness and ordered liberty”—came from, nor can I find the Supreme Court’s mandate that trial courts act as gatekeepers in interpreting due process claims. The latter, at least, makes sense—the question of societal mores is more appropriately developed by trial court judges than by the out-of-touch scholars in Washington, DC.

Beginning at page 9, Judge Fine cites “one retrial of a deceased individual who has actually been executed.”

That trial took place in Travis County in Judge Charlie Baird’s court wherein it was found that the deceased was, in fact, innocent and thereafter executed by the State of Texas.

As he was with his death-row exoneration statistics, Judge Fine is wrong. The exoneration hearing in Judge Baird’s court involved Tim Cole, who died of complications from asthma in prison in 1999. He was not on death row; he was serving time for rape.

Nevertheless, it is true that we must engage in willing suspension of disbelief in order to continue to say that we have never executed an innocent person “in light of what we now know of the value of eyewitness identification.”

Alluding to the poor and minorities who are most often the accused in death penalty cases, Fine says at page 10:

I know that some feel that, well, if they’re not guilty of the capital murder, they’re guilty of something so it’s okay. I don’t think society is of that frame of mind any longer.

Again and again Judge Fine tries to relate the problem to our friends and family—to make the problem our problem, rather than the problem exclusively of the poor. “Are we willing to let our own be the sacrificial lambs? I don’t think society is willing to do that.”

Finally, with a sneer to Chuck Rosenthal, Judge Fine expresses his trust that the Pat Lykos District Attorney’s Office does not take death penalty cases lightly:

I can’t speak for times past, and I won’t go there, but certainly this District Attorney’s Office, there’s no question in my mind does not take these things lightly —do not take these things lightly, and that’s why I have overruled the Defense—the Defense’s motion in regards to any argument that the decision-making process is arbitrary, capricious or in any way a violation of the Constitution.

I would like to believe that Judge Fine is right about where society is, but I can’t. The troglodytes are running the show. They demand positive proof that innocents have been executed; they obstruct efforts to develop such proof; they won’t acknowledge the danger that their loved ones might be wrongly executed; and other people’s loved ones don’t matter to them.

Even the greatest fans of the criminal justice system cite an estimated .027% wrongful felony conviction rate. That means that for every 3,702 factually guilty people we execute, we’ll execute one innocent. Those are unacceptable odds to me, and probably much better than the real odds—the true error range is probably between .8% and 8%, which means that at least one out of every 125 people we execute will have been factually innocent.

I’m not convinced that the parties in this case have developed enough of a record for an appellate review of Judge Fine’s ruling. I’d like to see a hearing at which the defense could present its evidence suggesting that innocents had (and therefore will) be executed, and the state could present its evidence suggesting that nobody factually innocent had been or could be executed. Then the appellate courts would have some actual evidence to consider, rather than just conjecture.

The appellate courts are not set up to hold  hearings and develop evidence on the question of how likely innocents are to be executed, and how willing the people of Texas are to accept that likelihood. This case, with a judge who is principled enough to risk ending his political career over the constitutionality of Article 37.071, may be society’s only opportunity for a long time to test in a full-blown adversary proceeding the assertions of those on both sides of the death penalty debate. However it comes out, we’ll know that it’s been fully litigated.

Judge Fine can put his ruling on hold and order such a hearing, and he should.