Harris County Judge Declares Death Penalty Unconstitutional; We're Guessing There Will Be An Appeal (Updated)

Updated with reaction from DA Pat Lykos, AG Greg Abbott and a nervous Texas Democratic Party.

State District Court Judge Kevin Fine may be the only judge in Harris County with tattoos running up and down his forearms, and he is certainly the only one to declare the Texas death penalty statute unconstitutional.

Fine was hearing motions Thursday from accused killer John Green's attorneys, and unpredictably granted a motion asking the court to declare the death penalty unconstitutional. Green is suspected of shooting a woman in 2008 and could be executed if found guilty.

"In every capital murder case," Green's attorney, Casey Kiernan, tells Hair Balls, "lawyers always ask the court to rule that the death penalty is unconstitutional. And this time the judge did it. I don't know that this has ever happened before in Harris County. It may be the bravest decision I've ever seen a judge make in more than 30 years as a defense lawyer."

This is not the first time Fine, a recovering drug addict who was elected to the bench as a Democrat in 2008, has made waves.

Last year, he was accused of telling an alleged rape victim in his court that he didn't believe she was raped because she was "on top" during the act.

Criminal defense attorney and legal analyst Brian Wice says he has known Fine for many years, going back to when Fine was a law clerk. He says Fine came to the bench after working as a defense attorney and not as a prosecutor.

"You couldn't fine a nicer guy," says Wice, "or someone who cares more deeply about what he does. I've been told that he finds, like many judges, the sentencing part of his job the most distasteful. Of the 21 criminal district court judges down there, if you had said to me who is the most likely among them to find the death penalty unconstitutional, I'm thinking I would have to tell you it was Kevin Fine."

Kiernan says the next move belongs to the prosecution. DA Pat Lykos will have to decide whether to appeal Fine's ruling. Phone calls to the DA's office have so far gone unreturned. Kiernan says he plans on meeting with prosecutors tomorrow to plot out the next steps.

Though it is doubtful that Fine's ruling would pass muster upon appeal, Kiernan is hopeful.

"What the judge is saying is that the system is broken in the state of Texas," says Kiernan. "And he really made a point of saying that more than 200 people have been exonerated. We won a big battle here today."

Updated: DA Pat Lykos has issued her statement.

Words are inadequate to describe the Office's disappointment and dismay with this ruling; sadly it will delay justice for the victims and their families. The Texas Court of Criminal Appeals and other appellate courts have consistently rejected the same issues raised in the Green case.

The decision of whether to seek the death penalty is a solemn and profound responsibility. After a deliberative and thoughtful process this Office reached the conclusion to prosecute Mr. Green for the horrific capital murder he committed and to ask the jury to assess the death penalty. We respectfully, but vigorously disagree with the trial judge's ruling, as it has no basis in law or in fact. We will pursue all remedies.

And Attorney General Greg Abbott weighs in:

In an act of unabashed judicial activism, a state district judge ignored longstanding U.S. Supreme Court precedent and improperly granted John Edward Green's request that the court declare the death penalty unconstitutional. The Attorney General's Office has already offered to provide help and legal resources to the Harris County District Attorney's Office--which is handling the Green prosecution--and will take appropriate measures to defend Texas' capital punishment law. We regret that the court's legally baseless order unnecessarily delays justice and closure for the victim's family--including her two children, who witnessed their mother's brutal murder.

The Texas Democratic Party apparently wasn't too pleased by people pointing out that Fine's a Democrat: "This decision applies specifically to this particular case and does not waive the death penalty in Texas," TDP chair Boyd Richie said in a release. "Democrats believe that individuals who commit violent crimes and are found guilty in a fair trial should be punished harshly. We strongly support justice for victims and their families and believe in upholding their rights in court."

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Chris Vogel
Contact: Chris Vogel