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