The Presumption of Innocence in Harris County

 Posted on April 08,2010 in Uncategorized

But the issue of the defendant's innocence must be resolved at the guilt stage of trial, not by the trial judge at a pretrial hearing. Judge Fine has demonstrated his favoritism toward the defendant in this case by implicitly making that determination prior to trial.

And he reiterated his assumption that the defendant was innocent by noting that society is not "willing to let our own be the sacrificial lambs."

These are quotes from the State's Motion to Recuse Judge Kevin Fine from the John Edward Green case.

The defendant's innocence is not an "issue" to be resolved at the culpability stage of the trial. "Innocence" won't enter into it. And while you may argue that a guilty verdict is proof that a defendant is not factually innocent, we know that this is not so. Lots of factually innocent people are found guilty; some of them go to death row. In fact, the point of Judge Fine's inquiry (as I understand it) is to determine whether the process by which we convict people of capital murder and sentence them to death is accurate enough for us to rely on it.

I know that the presumption of innocence is a rule more honored in the breach than in the observance among the Harris County judiciary, and I know that the idea that judges shouldn't act like auxiliary prosecutors is a novelty to you-when all you know is judges who are biased toward you, a judge who is unbiased seems biased against you. But Judge Fine, in assuming that Mr. Green is innocent, is not demonstrating his favoritism toward the defendant; he's doing exactly what he's supposed to do.

And some people wonder why I don't think very highly of the prosecutorial profession.

"CJCLawyer," whose anonymous comment somehow snuck through, commented:

There is a difference between a person being presumed innocent and actual innocence. I think the motion refers to Fine presuming actual/factual innocence.

He or she is wrong. A person is legally innocent (in other words, "not guilty") until proven guilty; at the same time he is presumed factually innocent (in other words, "innocent"). As Rusty Hardin, ex-alpha-prosecutor and trial lawyer, says, the presumption of innocence "means he didn't do it until they prove he did."