State's Motion to Recuse Judge Fine from Death Penalty Case

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State's Motion to Recuse Judge Kevin Fine from John Green death penalty trial.

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STATE OF TEXASv.JOHN EDWARD GREEN, JR.NO. 1170853 IN 17ihDISTRICT COURT HARRIS COUNTY, TEXASMOTION TO RECUSETHE STATE OF TEXAS, by and through the District Attorney of Harris County,Texas, asks Judge Kevin Fine to recuse himself in this death penalty case because JudgeFine has clearly articulated beliefs and opinions that reveal his partiality and bias againstboth the death penalty statute and the State's application of that statute in this case. JudgeFine's refusal to follow well-settled case law has resulted in the delay of justice for thevictims and the victims' family in this case. This motion is based on the fact that: Judge Fine stated in two pretrial conferences, one of which was held on or aboutJanuary 13, 2010, that if there were a judge on the bench in the State of Texas whowould declare the death penalty unconstitutional, it was he. On March 4, 2010, Judge Fine took "judicial notice" on his own motion that morethan 200 inmates from the country's death rows "have been exonerated." Judge Fine also stated on that same date that "we have overwhelming evidence thatwe are, in fact, executing innocent persons." Judge Fine has continued to require the parties to participate in an April 27, 2010evidentiary hearing to determine whether an actually innocent capital murderdefendant has been executed in the state of Texas despite the fact that such an issueis completely irrelevant to whether Article 37.071 is constitutionpst it a ~ ~ othis defendant. l L -..Ii.. Uoren JacksonDiolricl ClerkAPR 01 2010 In making his rulings on March 4 and 5, Judge Fine asserted his consideration ofextrajudicial information not related to John Green, including the Illinois moratoriumofthe death penalty and the Innocence Project. Judge Fine has consistently framed the issue from a personal perspective when hestated that he is not willing to stand by when an innocent family member, friend oracquaintance is executed.I.Relevant FactsOn March 4, 2010, the Honorable Kevin Fine, presiding judge of the 177thDistrictCourt in Harris County, Texas, conducted a pretrial hearing on several motions filed by thedefense in this case. Judge Fine had twice previously stated that if there were any judge inTexas who would be willing to hold the death penalty unconstitutional, that he was thatjudge (Appendix G). One of the motions presented by the defense at that hearing was aboilerplate motion to hold the death penalty sentencing statute, Article 37.0711of the Codeof Criminal Procedure, unconstitutional (Appendix B). Among the allegations in thedefense motion was the claim that more than 100 death row inmates had been exonerated.At the hearing, Judge Fine stated:Just for the record, my understanding - and I'll take judicial notice thatthere is an error - well, actually not an error, but on Page 2 of the motion,Paragraph 4, "More than 100 inmates from the country's death rows havebeen exonerated." That number has reached over 200 at this point.e]The Court also will note and take notice of the fact that the greater majorityI There was a typographical error in the motion, which referred to "Article 37.01." (Appendix B). But Article 37.01merely provides for the statutory defmition ofa "verdict." TEX. CODE CRIM. PROC. art. 37.01 (Vernon 2009). It isclear from the context of the motion that the defense was referring to Article 37.071.2 Even by the most generous accounts through the Innocence Project website or the Death Penalty InformationCenter website, 200 people off death row is exaggerated. Additionally, the State contends that the term"exonerated" does not mean "actually innocent," so Judge Fine's number is irrelevant in the context of a possiblyinnocent person being executed2.'of those exonerated have been cases where there was DNA evidence leftto test to show the defendant's innocence and we can't - we cannotconceivably revisit someone's innocence absent some form of evidence suchas DNA evidence. That calls into question even more so the execution ofinnocent people.(RR. 3/4/2010 Hearing - 26-27) (emphasis added). Judge Fine asked defensecounsel for clarification on one issue and then proceeded to opine:The Court notes that in Paragraph 3 of the motion Defense states, "It issettled law that the Fifth Amendment's broad guarantee of 'due process' mustbe interpreted in light of evolving standards of fairness and ordered liberty."Then you go on to discuss the exoneration of innocent individuals fromAmerica's death rows, which again I will take judicial notice that there havebeen more than 200 such individuals exonerated. However, thoseexonerations have been by and large limited to cases where there hasbeen DNA evidence which leaves those accused of capital offense wherethere is no DNA offense where they may, in fact, be innocent no redress.So under this argument, I suppose as the gatekeeper of the law, I've gotto 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 ofTexas, can have a death penalty so that those that might be deserving of thepenalty 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. I'vetaken no polls. I haven't seen any - I've never read any articles, whether in anewspaper, legal journal, wherein people have been asked the question: Is itokay to execute innocent people so that we as a society can have a deathpenalty to execute guilty?From my standpoint, I am not willing to have my friends or afamily member or even an acquaintance who is innocent - I'm notwilling to have -let them be the sacrificial lamb to be executed so that wecan have a death penalty and execute those actually deserving of thedeath penalty. And I believe that because of the efforts of the InnocenceProject and Innocence Projects around the country and the attentiongiven to the moratorium on executions in the state of Illinois because ofthis very fact - and these are facts, not assumptions, that we do, in fact,have innocent people on death row that were to be executed who werefound to be innocent and that more than likely statistically there are atleast an equal number of inmates sitting on death row somewhere in this3country that do not have the DNA evidence available to demonstratetheir innocence. And I think that our country has become more aware, ourcitizenry has become more aware of the fact that there is a more than a chanceof executing innocent people.I don't think anyone, if asked, if they were willing to allow one oftheir family members, friends or acquaintance or co-workers to be thesacrificial lamb would agree that they were willing to do that. I wouldimagine even if I asked the prosecutors individually personally if they wouldbe willing to do that, their answers would probably be the same as mine,although I don't pretend to speak for them.With no other guidance from a higher court other than the guidancecharging the trial courts with the duty of being gatekeepers, this is probablythe 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 letinnocent people die so that the State of Texas can have a death penalty.Acting as gatekeeper and strictly as gatekeeper and having to make thatdecision, that's what I so find and I'm going to grant the defendant's motionand we'll let a higher court ofgreater wisdom make the ultimate decision.Hopefully that being the Supreme Court of the United States. So Motion toHold That Texas Code of Criminal Procedure Article 37.01 [sic]Unconstitutional is granted.(RR. 3/4/2010 Hearing - 28-31) (emphasis added). Later that day, Judge Fine attempted toclaritY his ruling. He stated:Because there are no guiding case law, I'm only guided by - other than lawthat requires - case law, United States Supreme Court case law that requiresthat I play the role of gatekeeper when it comes to what our society deems isfair and decent and as gatekeeper and my only guiding principle being thevery fact that we have had over 200 innocent people exonerated fromAmerica's death rows can only lead to the conclusion that we have, infact, executed innocent people.(RR. 3/4/2010 Hearing - 61) (emphasis added). Finally, Judge Fine stated that he believedthat no one would be willing to allow one of their loved ones, associates, friends, or co-workers to "suffer the death penalty" or to "be one of the innocent ones that suffers the4death penalty so that the State of Texas can have a death penalty," and he explicitly referredto "the media attention on the death penalty, the recent moratorium on the death penalty acouple of years out of Illinois and our changing ideas of fairness and decency" to rule that"in fact, the statute is unconstitutional." (RR. 3/4/2010 Hearing - 61).Judge Fine reconvened the hearing the following day, March 5, 2010. He stated thathis holding was based on the "due process claim that 37.071 has resulted in the execution ofinnocent people and/or has the potential to result in the execution of innocent people."Judge Fine continued:I repeat again that the vast majority of those cases involve DNAevidence. What of those cases that do not involve DNA evidence? To myknowledge, there has been only one retrial of a deceased individual who hasactually been executed. That trial took place in Travis County in JudgeCharlie Baird's court wherein it was found that the deceased was, in fact,innocent and thereafter executed by the State of Texas.elWhether it's one person or 10,000, I don't believe society is willing to,what is known as in literature, to remain under the cloak of the willingsuspension of disbelief. That's what we must engage in if we're going tosay we've never executed an innocent person in light of what theInnocence Project has uncovered and in light of what we now know ofthe value of eyewitness identification and in light of the fact that there arenumerous cases, whether a death case or not, where there is no DNAevidence to go back and test in order to exonerate the individual.This current awareness in our society necessitates the question ofwhether we as a society, knowing that we execute innocent persons, desire tocontinue to ignore that reality.Now, I say this with a bit of caution. It is perhaps easy to ignore thatreality when the individual sitting at the defense counsel comes from lower3 The State is unaware of any such proceeding; however, Judge Charlie Baird did conduct a proceeding whichpurported to detennine that a man who passed away in prison was innocent. That man had been convicted of sexualassault and not capital murder, and he was not executed by the State. See Steven Kreytak, Judge Issues FormalFindings in Cole Case, April 7, 2009, http://www.statesman.com/blogs/contentlshared-gen/blogs/austin/courtslentriesl 20091 04/07/baird_issues_fonnaUindings _austin_legal.5income neighborhoods, is a minority, or has a criminal history. I know thatseveral feel that, well, ifthey're not guilty ofthe capital murder, they're guiltyof something so it's okay. I don't think society is of that frame of mind anylonger.Our Constitution affords protections to all citizens, not just those sittingat counsel table accused of a crime, and I shudder to think and I do notbelieve our society takes a blind eye to themselves as individuals and thoseclose to them and, therefore, condone the execution of innocent persons fromlow income, predominantly minority citizenry. I don't think society is willingto do that anymore. I don't think society is willing to engage in the willingsuspension of disbelief that we do not and could never execute an innocentperson.And because the Constitution protects us all, the question to be askedand answered in resolving this issue is whether we as a society - we have tolook at ourselves. Are we willing to allow our sons, our daughters, ourbrothers, our sisters, our friends to be the sacrificial lambs should theybe wrongly accused of a capital offense and then be executed?I don't think there is - there may be some people out there that wouldsay they're willing to let their son die so that the State of Texas can have adeath penalty, but I think those persons would be few and far between.I find that the greater majority of our society would not be so willing toallow the execution of their friends and family or to be the sacrificial lambs sothat the State of Texas can have a death penalty. I think that the changing andevolving standards of fairness and ordered liberty are such that in light of thefact that we have overwhelming evidence that we are, in fact, executinginnocent persons, I don't believe that our evolving standards are at the pointwhere we're willing to sacrifice even those that have criminal records andeven those that come from the Fifth Ward or the Ninth Ward of NewOrleans[4] or the Fourth Ward or the Third Ward ofHouston.I think society has begun to take a look within itself, and I think theproper question to be asked is just that. Are we willing to let our own be thesacrificial lambs? I don't think society is willing to do that.(RR. 3/5/2010 Hearing - 8-11) (emphasis added). During the following week, on March 9,2010, Judge Fine held a third hearing on the record regarding the same issue. Judge Fine4 Prior to this March 5, 2010 statement, Judge Fine was aware through testimony at hearings that the defendant in thiscase, John Edward Green, was from the Ninth Ward ofNew Orleans. (Appendix G).6rescinded his written order, set the case for an evidentiary hearing to be held on April 27,20I0, and ordered the parties to file briefs on the issues. In explaining his position, JudgeFine stated: "I want to make that clear again. I'm not saying that the process ofthe selectionof death eligible cases is unconstitutional. What - what I'm leaning toward and what I'vepreviously ruled and now am setting aside is that society's ever evolving standards ofdecency and fairness have changed such that - because we know, and we would be buryingour heads in the sand if we said we didn't, engaging in what I previously tagged as thewilling suspension of disbelief, in literature, that we execute innocent people." (RR.3/9/2010 Hearing - 9).On March 26, 2010, Judge Fine apparently became concerned that he might berecused in this case, so he called another hearing in this case wherein he observed:...my feeling is there's at least one document I feel like the State isgoing to file that's not listed in 28.01 that could be filed at any time, and thatis maybe supposition on my part, but I anticipate or would not be surprised ifthere was a Motion to Recuse me from the case. The case gets sent to MikeAnderson and then, of course, Anderson rules the way he rules and you guysare assigned a new court.I think that's a strong possibility. That's why I want it made perfectlyclear for this record that I have no - and I have said before, I've got nothing -no personal interest in the death penalty itself. I think it's constitutional. Ibelieve the death penalty to be constitutional. My question is - only goes tothe motion filed by the Defense, and that's it. That's the only issue. So itwould be up to the Defense to prove that we have, in fact, executed aninnocent person.The law is clear that - and I will attempt to quote Herrera - "The law isclear that although it is a violation of the due process clause to execute aninnocent person, it is not a violation of due process clause for someone to besentenced to death based simply on a risk or the risk that a defendant mighttheoretically be innocent and executed."7And then the case goes on to say, "The defendant in this case does notclaim to be innocent; therefore, has no claim at all."So that's why I'm narrowing the issue. And I think I've said this before- correct me if I'm wrong - the narrow issue is has the State of Texasexecuted an innocent person; and, if so, does that violate - does that, in effect,create a violation of the due process clause simply by virtue of the statute.Does that make sense?[Defense Counsel]: It not only makes sense, Judge, I still maintainthat's true; and I want a hearing on it.The Court: All right. And as long as I'm the Judge, there will be ahearing.(RR. 3/26/2010 Hearing - 11-12) (emphasis added). Currently, briefs are scheduled to besubmitted to the Court on April 12,2010 and an evidentiary hearing is scheduled for April27,2010.II.Argument andAuthoritiesBoth the Texas and the United States Constitutions guarantee a party an impartialand disinterested tribunal. Metzger v. Sebek, 892 S.W.2d 20, 37-38 (Tex. App.-Houston[1st Dist.] 1994, writ denied). In both criminal and civil cases, motions to recuse a trialjudge are governed by rules 18a and 18b of the Texas Rules of Civil Procedure. Arnold v.State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993).At least ten days before the date set for trial or another hearing, any party may file amotion stating grounds why the judge before whom the case is pending should not sit in thecase. TEx. R. CIv. P. 18a. This right extends to the State of Texas in criminal cases.8Arnold, 853 S.W.2d at 544. And Texas law is clear that, when faced with a motion torecuse, a judge has only two options: grant the motion to recuse, or refer the motion toanother judge for a ruling. See TEx. R. CIV. P. 18a(c); In re Norman, 191 S.W.3d 858, 860-62 (Tex. App.-Houston [14th Dist.] 2006, orig. proceeding).A judge shall be recused if, among other reasons, the judge's "impartiality mightreasonably be questioned" or the judge "has a personal bias or prejudice concerning thesubject matter or a party." TEx. R. CIV. P. 18b(2). As the Court of Criminal Appeals hasexplained, "A trial judge ruling on a motion alleging bias as a ground for disqualificationmust decide whether the movant has provided facts sufficient to establish that a reasonableman, knowing all the circumstances involved, would harbor doubts as to the impartiality ofthe trial judge." Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992) (citationsomitted); see also Wesbrookv. State, 29 S.W.3d 103,121 (Tex. Crim. App. 2000); Rosas v.State, 76 S.W.3d 771, 775 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (applying thereasonable person/due process standard).Partiality, bias, and prejudice are antithetical to due process, which requires that ajudge be neutral and detached. Abdygapparova v. State, 243 S.W.3d 191,208 (Tex. App.-San Antonio 2008, pet. refd); Gagnon v. Scarpelli, 411 U.S. 778, 786 (1983). "Partiality"refers to favoritism that is "wrongful or inappropriate." Litelcy v. United States, 510 U.S.540, 552 (1994). "Bias" and "prejudice" have been construed to "connote a favorable orunfavorable disposition or opinion that is somehow wrongful or inappropriate, eitherbecause it is undeserved ... or because it is excessive in degree." Id., 510 U.S. at 552. The9inquiry into whether recusal is appropriate centers on objective criteria using a "reasonableperson" standard. Abdygapparova, 243 S.W.3d at 198."To require recusal, a judge's bias must be extrajudicial and not based upon in-courtrulings." Grider v. Boston Co., 773 S.W.2d 338, 346 (Tex. App.-Dallas 1989, writ denied)(citing United States v. Grinnell Corp., 384 U.S. 563,583 (1966. Opinions formed by thejudge on the basis of facts introduced or events occurring during proceedings do notconstitute a basis for a recusal motion unless they display a deep-seated favoritism orantagonism that would make fair judgment impossible. Ludlow v. DeBerry, 959 S.W.2d265, 271 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (citing Liteky v. United States,510 U.S. 540 (1994; see also Kniatt v. State, 239 S.W.3d 910, 920 (Tex. App.-Waco2007, no pet.).A movant need not prove that a judge is actually partial or biased to merit recusal;rather, it is the "appearance" that matters. Liteky, 510 U.S. at 558. Indeed, due processrequires recusal when "there is a serious risk of actual bias - based on objective andreasonable perceptions." Caperton v. A.T. Massey Coal Co. Inc., 129 S.Ct. 2252, 2263(2009).A trial court denies a defendant due process when it arbitrarily, without any evidencebefore it, refuses to consider a portion of the permissible range of punishment. Ex parteBrown, 158 S.W.3d 449,456 (Tex. Crim. App. 2005); McClenan v. State, 661 S.W.2d 108,110 (Tex. Crim. App. 1983), overruled on other grounds by De Leon v. Aguilar, 127S.W.3d 1, 5-6 (Tex. Crim. App. 2004); Cole v. State, 931 S.W.2d 578, 579-80 (Tex. App.-Dallas 1995, pet. refd). For example, one court of appeals held that a trial judge should10have been recused when, in response to questioning regarding whether the judge wouldaccept a plea bargain of deferred adjudication, the judge said, "No, and if the jury gives herprobation, I'll give her jail time." Norton v. State, 755 S.W.2d 522, 523-24 (Tex. App.-Houston [1st Dist.] 1988), pet. rej'd, 771 S.W.2d 560 (Tex. Crim. App. 1989). Anothercourt of appeals held that a trial court denied the defendant due process by failing toconsider the entire punishment range when it told the defendant at a deferred adjudicationhearing that it would impose a 20-year sentence if probation was revoked and then imposedthat sentence once probation was revoked. Jefferson v. State, 803 S.W.2d 470, 471-73 (Tex.App.-Dallas 1991, pet. refd). In the present case, Judge Fine has demonstrated hisantagonism toward the full punishment range, specifically the range of punishment thatincludes the death penalty.Unlike criminal defendants, the State is not entitled to due process. See Collier v.Poe, 732 S.W.2d 332, 344 (Tex. Crim. App. 1987). Nevertheless, the legislature has madeclear that it "shall be the primary duty of all prosecuting attorneys... not to convict, but tosee that justice is done." TEx. CODE CRIM. PROc. art. 2.01 (Vernon 2009). And in thatcapacity, "the Government, as a litigant, has a legitimate interest in seeing that cases inwhich it believes a conviction is warranted are tried before a tribunal which the Constitutionregards as most likely to produce a fair result." Singer v. United States, 380 U.S. 24, 36(1965); Ex ReI. Turner v. McDonald, 676 S.W.2d 371, 374 (Tex. Crim. App. 1984).Therefore, the State has been provided with mechanisms to assure a fair trial. "Thisrecognition of the Government's interest as a litigant has an analogy in...rules, whichpermit the Government to challenge jurors peremptorily." !d. Rules regarding recusal of a11judge for partiality, bias, or prejudice fall into this same category of mechanisms to assure afair trial.Jury selection was scheduled to begin in this case on March 31, 2010. Judge Fine'sactions have left in doubt the State's ability to proceed with the prosecution of a deathpenalty case, in which a woman was shot and killed in front of her family (Appendix H).Family and friends have hoped and expected that justice would be served by the defendantbeing put to trial and, if convicted, assessed the appropriate punishment by a jury. JudgeFine's desire to litigate the propriety of the imposition of the death penalty in other cases iswrong and improper. Judge Fine's insistence upon such a hearing concerning the validity ofconvictions in other cases reveals a deep-seated favoritism or antagonism that would makefair judgment impossible in this Defendant's case.In the present case, unless Judge Fine is recused from the case, the State of Texas,the victim, and the victim's family will be deprived of a fair trial in violation of Texas Ruleof Civil Procedure l8b for the following reasons:A. Judge Fine's impartiality might reasonably be questioned.The inquiry the court must make under Rule l8b(2)(a) is whether a reasonablemember of the public, knowing all the circumstances involved, would harbor doubts as tothe impartiality of Judge Fine with respect to the death penalty. TEx. R. CIY. P. 18b(2)(a);Kemp, 846 S.W.2d at 305. And Judge Fine has repeatedly displayed his prejudice againstthe death penalty. See Brian Rogers, Judge Declares Death Penalty Unconstitutional,March 5, 2010, http://www.chron.com/disp/story.mpl/metropolitan/6897252.htrnl; Brian12Rogers, Judge Clarifies Ruling Criticizing Death Penalty, March 5, 2010,http://www.chron.com/disp/story.mpl/metropolitan/6899748.htrnl.When Judge Fine became aware that the defense filed motions to declare aspects ofthe Texas death penalty statute unconstitutional, he alerted defense counsel of hiswillingness to consider such action. Judge Fine specifically inquired whether any of themotions were novel or if one or more implicated areas ofthe law that were in a state of flux.Judge Fine told the parties that if there were a judge on the bench in Texas who was willingto hold the death penalty unconstitutional, Judge Fine was that judge (Appendix G). Onanother occasion, Judge Fine stated that he was not going to be the judge to let the issue ofthe theoretical execution of an innocent person go by on his watch (Appendix G).During the pretrial hearing on March 4, 2010, Judge Fine addressed many of thepretrial motions, including the defendant's motion to declare Article 37.071unconstitutional. Judge Fine sua sponte took 'Judicial notice" that more than 200 inmatesfrom the country's death rows "have been exonerated," but judicial notice is not theequivalent of personal knowledge, and judicial notice may not be taken of matters notknown generally. See Watkins v. State, 245 S.W.3d 444, 456 (Tex. Crim. App. 2008)(holding that article in which statistics and data were used to question racial neutralityachieved by jury empanelment methods was not shown to have been indisputable as towarrant judicial notice); see also Emerson v. State, 880 S.W.2d 759, 774 (Tex. Crim. App.1994) (Baird, J., dissenting) ('Judicial notice is not the equivalent of personal knowledgeand judicial notice may not be taken of matters not known generally known... We have heldwhere a court is authorized to take judicial cognizance of matters, it is held that this power13must be exercised with caution, and care must be taken that the requisite notoriety exists,and every reasonable doubt upon the subject should be promptly resolved in the negative.")In Paredes v. State, 129 S.W.3d 530,532 (Tex. Crim. App. 2004), the defendant wasconvicted of capital murder and sentenced to death. On appeal, the appellant claimed thatthe death penalty statute was unconstitutional because "the risk of executing innocentpersons and the long delays in uncovering evidence of innocence, often only possible withthe benefit of newly developed scientific techniques such as DNA testing, compels aconclusion that our death-penalty statute violates due process." Id., 129 S.W.3d at 540. Theappellant referred to reports, case studies, and court cases documenting the exoneration ofactually innocent death row inmates. !d. But the Court of Criminal Appeals rejected thatclaim, holding that the "risk that another person who may be innocent will be executed doesnot violate appellant's due process rights." !d.In the present case, Judge Fine has preordained the defendant's innocence by stating,"I am not prepared to say that our society, that our citizenry is willing to let innocent peopledie so that the State of Texas can have a death penalty." (RR. 3/4/2010 Hearing - 28-31).Such an argument would be irrelevant in the present case unless Judge Fine had alreadyconcluded that the defendant was innocent. See Paredes, 129 S.W.3d at 532. Additionally,on March 5, 2010, Judge Fine made comments regarding our society sacrificing personsfrom the "Ninth Ward of New Orleans." (RR. 3/5/2010 Hearing - 11). That statementappears to be a specific reference aimed at John Edward Green, Jr., because there wasevidence in the record prior to March 5 that the defendant was from the Ninth Ward of NewOrleans. But the issue of the defendant's innocence must be resolved at the guilt stage of14trial, not by the trial judge at a pretrial hearing. Judge Fine has demonstrated his favoritismtoward the defendant in this case by implicitly making that determination prior to trial. Andreasonable people, knowing all the circumstances would harbor doubts on Judge Fine'simpartiality. Kemp, 846 S.W.2d at 305.During the March 5, 2010 hearing, Judge Fine once again demonstrated his partialityand bias when he noted the retrial "in Travis County in Judge Charlie Baird's court" ofsomeone who had allegedly been executed.5Judge Fine also referred to the willingsuspension of disbelief based on what "the Innocence Project has uncovered and in light ofwhat we now know of the value of eyewitness identification." (RR. 3/5/2010 Hearing - 8-II). Judge Fine stated that "we have overwhelming evidence that we are, in fact, executinginnocent persons." And he reiterated his assumption that the defendant was innocent bynoting that society is not "willing to let our own be the sacrificial lambs." (RR. 3/5/2010Hearing - 8-11).Despite his earlier rulings and pronouncements, Judge Fine backtracked on March26, 20I0, and repeatedly stated, "I believe the death penalty to be constitutional." (RR.3/26/20I0 Hearing - 11). But those recent affirmations are not credible in light of all thestatements made previously by Judge Fine. The statements on March 26, 2010 were madewith an eye toward avoiding recusal, which was explicitly mentioned by the judge prior to, As stated previously in footnote 3, the State is unaware of any such proceeding, although Judge Baird did conducta proceeding which purported to detennine that a man who passed away in prison was innocent. That man had beenconvicted of sexual assault and not capital murder, and he was not executed by the State. See Steven Kreytak, JudgeIssues Formal Findings in Cole Cose, April 7, 2009, http://www.statesman.com!blogs/content/shared-gen/blogs/austin/courtsl entries! 2009/04/07!baird_issues_fonnal_findings_i.htrnl?cxntfid=blogs_austin_legal.ISclaiming for the fIrst time in such a manner that he believed that the death penalty wasconstitutional (RR. 3/26/2010 Hearing-ll-12).While Judge Fine attempted to clarity many of his previous comments concerningthe validity of the Texas death penalty, he has continued to require the parties to participatein an April 27, 2010, evidentiary hearing on the Defendant's motion to hold the Texas deathpenalty statute to be unconstitutional. Judge Fine has consistently stated his intention that,at that evidentiary hearing, evidence will be presented that an actually innocent capitalmurder defendant has been executed by the State of Texas.6At all times, Judge Fine hasmade it clear that he is requiring that this evidentiary hearing be held prior to a jury'sdetermination of John Green's guilt or innocence. Indeed, Judge Fine concluded the mostrecent hearing by stating that the hearing on whether an innocent person had been executedwould take place as long as Judge Fine was the judge in the case (RR. 3/26/20I 0 Hearing -12).There are few published OpInIOnS discussing granted recusal motions becausegranted recusal motions are not subject to review; appellate opinions discuss only recusalmotions that were denied and, often, in little detail. See ROBERT P. SCHUWERK & LILLIANB. HARDWICK, 48A TEXAS PRACTICE: HANDBOOK OF TEXAS LAWYER AND JUDICIALETHICS 40:4 (Supp. 2010) see also TEx. R. elV. P. 18a(t) ("If the motion is granted, theorder shall not be reviewable, and the presiding judge shall assign another judge to sit in thecase."). Nevertheless, there is at least one published case dealing with recusal in the context6 As a Criminal District Court judge, Judge Fine's jurisdiction is limited to original jurisdiction in criminal casespending in Harris County, Texas. See TEX. CODE CRIM. PROC. art. 4.05 (Vernon 2009). Judge Fine does not haveoriginal jurisdiction over cases that arise outside of Harris County, and does not have appellate jurisdiction.Therefore, Judge Fine has no jurisdiction to relitigate the actual innocence of such parties.16ofthe death penalty. In Chastain v. State, 667 S.W.2d 791,796 (Tex. App.-Houston [14thDist.] 1983, pet. refd), the appellant filed a motion to recuse the trial judge after the judgewent on a television talk show and stated that "in order for the death penalty to be aneffective deterrent, it should be invoked more often." The motion to recuse was denied, andthe appellant appealed. The court of appeals aflirmed, noting that the trial judge made nostatements which indicated that he believed that appellant should receive the death penaltyor that he would encourage the jury to impose such a penalty. The court of appeals statedthat it is presumed that a judge will base his judgment upon the facts as they are developedat the trial. Id Despite the similar topic, Chastain is not applicable to the present case.In the present case, Judge Fine has eviscerated any presumption that he would basehis judgment on the facts developed at trial when he repeatedly took judicial notice of factsthat were not in evidence. Moreover, while the statement of the trial judge in Chastainrelated to the purpose of the death penalty, it was not made from the bench and did notconflict with any settled binding precedent. On the other hand, Judge Fine'spronouncements conflicted with Paredes and numerous other opinions7that are bindingauthority over Judge Fine in this case. Therefore, Judge Fine has demonstrated his partialityin this case and must be recused.7 See, e.g., Stroman v. State, No. 74354, 2003 WL 22721137 at *1 (Tex. Crim. App. 2003) (not designated forpublication) ("In his fIrst point of error, Stroman asserts that Article 37.071 is unconstitutional because the deathpenalty violates evolving standards of decency. SpecifIcally, he asserts that developing evidence regarding thenumber of innocent individuals on death row across the nation shows that the death penalty as it is currentlyadministered is flawed and amounts to cruel and unusual punishment. Both we and the Supreme Court of the UnitedStates have held that the Texas death penalty scheme passes constitutional muster. Additionally, the defendant mustshow that the statute operates unconstitutionally as to him in his situation. This he has not done. That it may operateunconstitutionally as to others is not sufficient. Stroman's fIrst point of error is overruled.") (footuotes omitted)17B. Judge Fine has a personal bias or prejudice against the death penalty.In order to support a recusal under Rule 18b(2)(b), a judge's bias must beextrajudicial and not based upon in-court rulings. Grider, 773 S.W.2d at 346. And as statedpreviously, Judge Fine exclusively considered and discussed extrajudicial sources in thepresent case. Judge Fine took 'Judicial notice" that more than 200 inmates from thecountry's death rows "have been exonerated." (RR. 3/4/2010 Hearing - 26-27). He alsonoted without any citation to authority that those alleged exonerations were limited to DNAcases (RR. 3/4/2010 Hearing - 26-27). Judge Fine referred to a proceeding in Judge CharlieBaird's court, which allegedly resolved that an innocent person had been executed. JudgeFine also referred to what the Innocence Project has "uncovered," without the introductionof any evidence in the case (RR. 3/5/20I0 Hearing - 8-11). Judge Fine stated that there is"overwhelming evidence that we are, in fact, executing innocent persons." He reiterated hisanticipation that the defendant was innocent by noting that society is not "willing to let ourown be the sacrificial lambs." (RR. 3/5/2010 Hearing - 8-11). It appears that Judge Finemade this determination based on his assumptions.While Judge Fine has shown a willingness to recognize sources that were notpresented to him by either party, he has refused to acknowledge binding authority thatwould foreclose the defendant's claim in the present case. The defendant's motion todeclare Article 37.071 of the Texas Code of Criminal Procedure to be unconstitutional is18not unique.8It is clearly taken from-if not a verbatim recitation of-previous motionsthat have been filed in death penalty cases for quite some time. Trial courts haveroutinely denied these motions, and reviewing courts have repeatedly upheld the trialcourts' rulings on such motions. Judge Fine was not confronted with an issue of firstimpression.In a death penalty case arising out of the state of Texas, the United States SupremeCourt has noted that the defendant is provided numerous protections:A person when first charged with a crime is entitled to a presumption ofinnocence, and may insist that his guilt be established beyond a reasonabledoubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368(1970). Other constitutional provisions also have the effect of ensuringagainst the risk of convicting an innocent person. See, e.g., Coy v. Iowa,487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988) (right to confrontadverse witnesses); Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L.Ed. 2d 798 (1988) (right to compulsory process); Strickland v. Washington,466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (right to effectiveassistance of counsel); In re Winship, supra (prosecution must prove guiltbeyond a reasonable doubt); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct.1444,20 L. Ed. 2d 491 (1968) (right to jury trial); [Brady v. Maryland, 373U.S. 83 (1963)] (prosecution must disclose exculpatory evidence); Gideonv. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (right toassistance of counsel); In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623,625,99 L. Ed. 942 (1955) (right to "fair trial in a fair tribunal").Herrera v. Collins, 506 U.S. 390, 399-400 (1993). The Eighth Amendment also requiresincreased reliability of the process by which capital punishment may be imposed.Herrera, 506 U.S. at 405 (citing McKoy v. North Carolina, 494 U.S. 433 (1990) (holdingthat the unanimity requirement impermissibly limits jurors' consideration of mitigating The motion filed by lbe defense is so obviously pro forma lbat it has not been updated to reflect current law. Themotion asserts among olber things lbat lbe State of Texas fails to bar execution of juveniles. (Appendix B). Butjuvenile executions were found to violate the Eighth Amendment in 2005, five years before lbe hearing in thepresent case. See Roper v. Simmons, 543 U.S. 551 (2005). This motion has clearly been presented to olber trialcourt judges and examined on appeal and lbere is nothing novel.19evidence); Eddings v. Oklahoma, 455 U.S. 104 (1982) (stating that the jury must beallowed to consider all of a capital defendant's mitigating character evidence); Lockett v.Ohio, 438 U.S. 586 (1978) (plurality opinion) (same. All of these protections havebeen, and will be, implemented in John Edward Green, Jr.'s case and in every othercapital murder case in Harris County.In Herrera, the United States Supreme Court reaffirmed that "[d]ue process doesnot require that every conceivable step be taken, at whatever cost, to eliminate thepossibility of convicting an innocent person." Herrera, 506 U.S. at 400 (emphasisadded) (quoting Patterson v. New York, 432 U.S. 197 (1977. "To conclude otherwisewould all but paralyze our system for enforcement of the criminal law." Herrera, 506U.S. at 400. Similarly, the Texas Court of Criminal Appeals has often been confrontedwith claims in death penalty cases that Texas' death penalty scheme is unconstitutional"because it leads the State to execute an unacceptable number of innocent defendants,"and that "the constitutionality of the death penalty must be determined and redeterminedby the courts in keeping with evolving standards of decency and current knowledge aboutits operation." The court has consistently rejected such claims, absent an ability by thecapital murder defendant to show that his own rights have been violated. See, e.g.,Scheanette, 144 S.W.3d at 505-06; Paredes, 129 S.W.2d at 540.A federal court of appeals has stated that whether contemporary values dictatedthat the death penalty was unconstitutional was for the United States Supreme Court todecide. The court stated that "the Eighth Amendment does not authorize this court tooverrule Supreme Court precedent "even where subsequent decisions or factual20developments may appear to have significantly undermined the rationale for [an] earlierholding." United States v. Mitchell, 502 F.3d 931, 982 (9th Cir. 2007) (summarilyrejecting defendant's claim that federal death penalty was unconstitutional because it nolonger comported with evolving standards of decency, and resulted in the execution ofinnocent people) (quoting Roper v. Simmons, 543 U.S. 551, 594 (O'Connor, J.,dissenting)).The United States Supreme Court and the Texas Court of Criminal Appeals haveheld that the Texas death penalty scheme passes constitutional muster. See generallyJurek v. Texas, 428 U.S. 262, 269 (1976); Conner v. State, 67 S.W.3d 192,202-03 (Tex.Crim. App. 2001). These two courts of last resort have continued to uphold theconstitutionality of the Texas death penalty statute. Judge Fine has been presented withall of this authority. He nevertheless persists in making comments that show that hecannot be fair concerning the death penalty. And he persists in his requirement of anevidentiary hearing, in which the validity of other death penalty verdicts be relitigated.Presumably Judge Fine will then hold sway over whether an often-used and often-reviewed Texas statute is facially unconstitutional or unconstitutional in broadapplication after that same statute has been repeatedly upheld by the Texas Court ofCriminal Appeals and the United States Supreme court, notwithstanding that Judge Finewill not consider whether the statute is constitutional as applied to John Edward Green,Jr.. Accordingly, Judge Fine should recuse himself from proceeding further in this case21C. Public policy requires that Judge Fine be recused.The integrity of a court is called into question when a judge is partial, biased, orprejudiced or creates a reasonable perception of such. "Public policy demands that a judgeact with absolute impartiality." CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 792 (Tex. App.-Texarkana 1992, writ denied). "Judicial decisions rendered under circumstances thatsuggest bias, prejudice or favoritism undermine the integrity of the courts, breed skepticismand mistrust, and thwart the principles on which the judicial system is based." Id.Judge Fine has demonstrated bias and partiality in the face of clear and bindingauthority that the Texas death penalty sentencing statute is constitutional. As statedpreviously, he has repeatedly made statements and rulings without any basis in the record tofind that the death penalty is unconstitutional, he has encouraged defense counsel to filemotions seeking such a ruling, and he has so ruled. He cannot preside over a death penaltycase in an impartial and unbiased manner. Public policy requires his recusal.Judge Fine has manifested his sincere and firmly held conviction that Article 37.071is unconstitutional because of his belief that an innocent person has been executed in Texas.Public policy requires that this case be presided over by a judge who is impartial and canfollow Texas law in an unbiased manner. Therefore, public policy and Texas law requirethe recusal of Judge Fine in this case.22v.Service has been accomplished by hand-delivering a true and correct copy of thisinstrument to counsel for the Defendant on the date of filing with the clerk ofthis Court.THEREFORE, the State respectfully requests that the Judge of this Court recusehimself and that he request that the Presiding Judge of this administrative judicial districtassign another judge to this case, or in the alternative, that he refer this motion to thePresiding Judge of this administrative district for a hearing on this motion.RESPECTFULLY SUBMITTED this I't day ofApril, 2010.PATRICIAR. LYKOSDistrict AttorneyHarris County, Texas120I Franklin, 6th FloorHouston, Texas 77002(713) 755-5800State Bar of Texas No. 1271600023Pursuant to the verification requirement of TEX. R. ClY. P. 18a(a), all allegations andstatements in the foregoing Motion to Recuse are true and correct to the best of myknowledge and belief.~ ~ ~ ~Assistant District AttorneyHarris County, Texas1201 Franklin, 6th FloorHouston, Texas 77002(713) 755-5800State Bar ofTexas No. 24002071SWORN TO AND SUBSCRiBED before me on this the 1st day ofApril, 2010.ALICIATREVINONotary PublicSTATE OF TEXASCommission Exp. 03.(J82013NOTARY PUBLICin and for Harris County, Texas24STATE OF TEXASV.JOHN EDWARD GREEN, JR.NO. 1170853 IN 177thDISTRICT COURT HARRIS COUNTY, TEXASNOTICEMOVANT FOR RECUSALEXPECTS THE MOTION TO RECUSE TO BE PRESENTED TOTHE JUDGE THREE DAYS AFTER THE FILING OF SUCH MOTIONPursuant to the notice requirement ofTEX. R. CIV. P. 18a(b), Movant hereby givesnotice that Movant expects the Motion to Recuse in this case to be presented to the judgethree days after the filing of such motion.RESPECTFULLY SUBMITTED this 1stday of April, 2010.~ ~ ; ~Assistant District AttorneyHarris County, Texas1201 Franklin, 6th FloorHouston, Texas 77002(713) 755-5800State Bar of Texas No. 240020712SSTATE OF TEXASv.JOHN EDWARD GREEN, JR.NO. 1170853 IN 17ihDISTRICT COURT HARRIS COUNTY, TEXASORDERThe State's motion to recuse is GRANTED.Signed this day of , 2010.JUDGE PRESIDING177thDistrict CourtHarris County, Texas26