A Houston judge [Kevin Fine, elected to office in 2008] on Thursday granted a pretrial motion declaring the death penalty unconstitutional, saying he believes innocent people have been executed.

Details.

Prediction: he has an opponent and loses in 2012.

quote:

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"It's safe to assume we execute innocent people." - District Judge Kevin Fine

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So it is safe to assume although there are zero verified instances of it actually happening.

On the other hand we don't have to assume that innocent people have died in prison. Perhaps Judge Fine would grant a motion declaring prison unconstitutional.

Maybe the innocence project will hire him when he gets beat in 2012.

After rapist convicted, Judge grills the victim

Do any of you have personal experience with Judge Fine?

This just goes right along with the myth in the other thread about college campus rapes--and how often rapists tell themselves the vic is into it and "wanted it". "most rapes happen with the man on top so the can have complete control." That might be the tv version, but that has not been the case in a lot of the cases I've seen, and I'm only a little over a year into felonies. I've seen some weird stuff, and some vics too frightened to physically fight, even if not physically held down.

Can't ya'll find some judges that will actually follow the law? I know it's not ya'lls fault but this Judge Fine is not so fine.

I read that article on how he treated a rape victim...Gees, great tact on his part. As said previously, 2012 he is definitely going to be out.

Shortly after his 2008 election:

The devil tattooed on Kevin Fine's upper arm holds a razor blade, a mirror and an eight ball symbolizing cocaine. His forearm sports a tattoo of Jesus holding up a man who has collapsed amid the waves of a massive storm.

Elected by Harris County voters as a state district judge this month, Fine said he'll draw from his experiences as a cocaine addict who has been clean and sober for 10 years when presiding over felony cases.

"Every time I was coming down, I felt like the devil was reaching into my soul, stealing my heart," he said of his days spent with drugs.

The crumpled man in Jesus' arms is a metaphor for the way he later faced his own skeletons and weathered the problems of addiction, said Fine, a criminal defense lawyer who will take the bench in January.

Fine believes he is qualified to help those who truly want to battle their own demons and says he'll be able to spot the phonies.

His right arm is covered from shoulder to wrist in a sleeve of tattoos that mark various periods of his life, including the times he battled drugs and alcohol.

"I'm probably the only district judge with this many tattoos," he said. "At least the only one we know about."

Fine, a Democrat, campaigned on his life experiences, saying they would make him a better judge than his rival, Republican incumbent Devon Anderson.

"She did a good job, but I'm more qualified in the hopelessness and futility of addiction," Fine said.

Anderson is one of four judges who preside over Harris County's "drug courts," which divert some drug offenders into treatment and counseling rather than put them behind bars.

Judges in the program volunteer for a once-a-week docket in drug court in addition to carrying on their regular duties.

The other drug court judges - Republicans Caprice Cosper, Brock Thomas and Mike Wilkinson - also lost on Election Night.

Fine said he plans to volunteer for the drug court after a year of learning the ropes as a new judge.

As administrative judge of criminal district courts, state District Judge Debbie Mantooth Stricklin will oversee the transition plan for the drug court after the loss of the four incumbents. The court's new judges will have to undergo several days of training, Stricklin said.

Fine's journey from addict to judge wasn't easy, and he was lucky he didn't end up behind bars, he said.

He started drinking and smoking marijuana in his teens, he said, graduating to harder drugs in college and continuing to abuse alcohol and cocaine as a practicing attorney.

"By the grace of God," he said, he never appeared in court or met with a client while he was high.

While working as a lawyer in Lubbock, a boss knocked on his door one day, told him that his co-workers knew he had a problem and said that he needed to get treatment.

Days later, he said, he watched the sun come up after a long night of booze and cocaine and felt like a vampire fearing the dawn.

"I was out of cocaine. I was out of money. And the four horsemen of addiction - terror, bewilderment, frustration and despair - were on their way.

"That's when the devil shows up," he said. "It's like he's holding my heart in his hand, laughing at me, saying, `I got you again!' "

He checked in at a treatment center, went through detox and six months of intense outpatient treatment, learning the tools he needed to stay away from drugs and alcohol.

In the years since, he said, he has cleaned up his life, serving on the board of the Texas Lawyers Assistance Program, a State Bar program that helps attorneys battling addiction and depression.

Now, he said he's well-suited as a judge to help others weather the storm.

"I ran," Fine said, "because I felt like I could help more people as a judge than I could one at a time as clients."

Apparently, Judge Fine is today "clarifying" his ruling yesterday. For details, click here.

After listening, I was more confused.

OMG. Thanks for the article JB. Another reason judges should not be elected!

The devil, mirror, and an 8 ball. What is going on in Houston?

Kevin Fine



Kevin Fine

quote:

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Another reason judges should not be elected!

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That's a joke, right? It seems to me that this is precisely a reason to be happy that judges are elected. An appointed guy could do this kind of stuff with impunity and never have to face the voters.

Don't the states that appoint judges (assuming there are any) have retention elections for them? Anyone want to chime in on how an appointment system works?

Houston judge backs off ruling that death penalty unconstitutional

By BRIAN ROGERS
HOUSTON CHRONICLE

March 9, 2010, 12:51PM

A Houston judge who ruled last week that the proceedings surrounding the Texas death penalty are unconstitutional rescinded his ruling this morning to schedule a hearing for lawyers on both sides to submit arguments on the issue.

State District Judge Kevin Fine said, in effect, he was holding his ruling in abeyance until April 12, when prosecutors and defense lawyers for capital murder John Green can submit briefs. A hearing was scheduled for April 27.

[snip]

"For the first time in the state of Texas, or anywhere, we're going to have a hearing about whether innocent people get executed," said defense attorney Casey Keirnan. "What I keep saying is, it's the beginning of the end of the death penalty in Texas."

The full article

I listened to the first half of the 12 minute video linked above where he was giving a rambling explanation limiting his previous ruling...

Judge Fine mistakenly believes that Travis County District Judge Charlie Baird did a posthumous exoneration for an innocent guy who was executed. Well if you punch "posthumous exoneration baird" into a google search you find a bunch of links and they all say Tim Cole died in prison where he was serving time for rape.

Last I checked we don't execute for rape so it seems Judge Fine is misinformed.

But now extending the "Fine logic" out to meet the actual truth: if an innocent person died in prison then the only logical thing to do is abolish prison.

Defense lawyers for John Edward Green said in a Harris County courtroom this morning that Texas has executed two innocent defendants and the procedures surrounding the death penalty in Texas are unconstitutional. "He is at risk of being wrongfully convicted, wrongfully sentenced and wrongfully executed," said defense lawyer Richard Burr. [Really? I guess that really doesn't say much for the confidence the defendant should have in his legal representation.]

Details.

For a related Time Magazine article, click here.

Some help for Judge Fine:

ORDER

I. INTRODUCTION

This matter is before the Court on Defendant Kevin Watson's Motion to Bar Death Penalty Prosecution because the Death Penalty Provisions of 18 U.S.C. �� 3591 through 3598 are Unconstitutional because they Violate Procedural and Substantive Due Process with Incorporated Brief (Doc. #192). Oral argument was heard on August 21, 2007.

Defendant's motion is DENIED.

II. CONSTITUTIONAL PROTECTIONS

When a person is first charged with a crime, he is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Other constitutional provisions are in [*2] place to ensure against the risk that an innocent person will be convicted. See, e.g., Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988) (right to confront adverse 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 effective assistance of counsel); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968) (right to jury trial); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (prosecution must disclose exculpatory evidence); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (right to assistance of counsel); In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955) (right to a "fair trial in a fair tribunal"). In capital cases, the United States Supreme Court requires additional protections because of the penalty at stake. See, e.g., Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980) (jury must be given option of convicting the defendant of a lesser offense).

These constitutional safeguards make it more difficult for the Government to rebut and overturn the presumption of innocence. Yet, "[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person." Patterson v. New York, 432 U.S 197, 208, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).

III. [*3] ARGUMENTS AND ANALYSIS

The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


In support of his motion, Defendant Watson ("Watson") relies on United States v. Quinones, 196 F. Supp. 2d 416 (S.D.N.Y. 2002) and United States v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y. 2002), opinions of Judge Jed S. Rakoff. Watson acknowledges that the United States Court of Appeals for the Second Circuit reversed Judge Rakoff's decision, United States v. Quinones, 313 F.3d 49 (2nd Cir. 2002). Nevertheless, he adopts Judge Rakoff's arguments and reasoning. Watson argues that the Federal Death Penalty Act ("FDPA") violates [*4] his substantive due process rights under the Fifth Amendment because there is an undue risk that innocent people will be executed. Watson argues that his procedural due process rights under the Fifth Amendment are violated because the FDPA deprives innocent people of an opportunity to prove their innocence.

The Supreme Court teaches district courts to apply the same test when reviewing substantive and procedural due process challenges to criminal laws. See, e.g., Medina v. California, 505 U.S. 437, 445, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992) (holding that a criminal procedure does not violate due process unless "it offends some principle of justice so rooted in the traditions and consciousness of our people as to be ranked as fundamental"); Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997) (applying the same test to a substantive due process claim).

Judge Rakoff issued a preliminary order on April 25, 2002, announcing his tentative decision to find the FDPA unconstitutional based on evidence indicating that innocent people are wrongfully convicted under the FDPA. Quinones, 196 F. Supp. 2d at 420. On July 1, 2002, Judge Rakoff confirmed his initial view of the FDPA and declared it unconstitutional. Quinones, 205 F. Supp. 2d at 257. [*5] Judge Rakoff stated:
It is . . . fully foreseeable that in enforcing the death penalty a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence. It follows that implementation of the Federal Death Penalty Act not only deprives innocent people of a significant opportunity to prove their innocence, and thereby violates procedural due process, but also creates an undue risk of executing innocent people, and thereby violates substantive due process.
Id.

On appeal, the Second Circuit stated that historical practice shows "[t]he majority of states as well as the federal government have provided for capital punishment for over two hundred years." Quinones, 313 F.3d at 62. Despite this lengthy history, there remains a raging debate over whether the death penalty is constitutional in light of the risk of executing innocent defendants. United States v. Sampson, 486 F.3d 13, 27 (1st Cir. 2007).

The proposition that the death penalty is unconstitutional because of the risk of executing an innocent person has been presented to the Supreme Court on numerous occasions. Repeatedly, the Court declined to hold the death penalty unconstitutional [*6] per se for over two centuries. Id. In In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 (1890), the Court held that punishment of death by electrocution does not violate the Due Process Clause of the Fourteenth Amendment which, like the Due Process Clause of the Fifth Amendment, "requires that no different or higher punishment shall be imposed upon one than is imposed upon all for like offenses." Id. at 449. In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), all nine Justices found that application of a particular state death penalty statute was so arbitrary that it violated the Eighth Amendment. Despite this, only two Justices were willing to declare the death penalty a per se violation of the Constitution. Further, only Justice Thurgood Marshall believed that the possibility of executing an innocent person was sufficient on its own to render the death penalty unconstitutional. Quinones, 313 F.3d at 65 (citing Furman, 408 U.S. at 305, 358-59, 364).

Most recently, in Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), the Supreme Court held that the death penalty is not per se unconstitutional at the same time it recognized that innocent individuals might be executed under the inherent fallibility of any system of justice. [*7] Id. at 416-20.

"[T]he mere possibility that an actually innocent person may be convicted cannot be the constitutional touchstone for a due process violation." United States v. Montgomery, 2007 U.S. Dist. LEXIS 24156, 2007 WL 1031282 *7 (W.D. Mo. Apr. 12, 2007). "[I]f the well-settled law on this issue is to change, that is a change that only the Supreme Court or Congress is authorized to make." Quinones, 313 F.3d. at 69.

Congress enacted the FDPA against the backdrop of repeated assertions that innocent people have been executed. Id. at 64. Further, the Supreme Court has historically declined to adopt the argument that capital punishment violates due process. Given the congressional enactment and Supreme Court precedent, this Court must find that the FDPA does not violate the Due Process Clause of the Fifth Amendment. The right to a continued opportunity for exoneration throughout the course of one's natural life is not "rooted in the . . . conscience of our people." See id. at 64-65.

Watson offers a case in which the Government dismissed murder charges based on new forensic tests. 1 He requests this Court to grant him an opportunity to offer evidence of erroneous incidents of federal death penalty prosecutions. [*8] The Court denies this request. There is no demonstration that any innocent defendant has been sentenced to the death penalty under the FDPA. See United States v. Church, 217 F. Supp. 2d 700, 702 (W.D. Va. Aug. 19, 2002) ("The federal experience with death penalty cases certainly does not support an argument that the federal court system is likely to convict the truly innocent.").

FOOTNOTES

1 In the case of Darrell D. Rice, the investigation of a double homicide was nearly eight years old. Rice was the primary suspect for six and a half years and indicted for two years. Weeks before the scheduled trial, the Government dismissed the murder charges because new forensic tests indicated that Rice was not the perpetrator.


The FDPA has extensive procedural protections which this Court will honor in the prosecution of Mr. Watson and his co-defendants, to ensure the death penalty -- if selected -- is done so only after full procedural and substantive due process has been afforded to them.

IV. CONCLUSION

The Court DENIES Watson's motion.

IT IS ORDERED.

s/ Victoria A. Roberts

United States District Judge

Dated: August 23, 2007

"After now having stated our objections to this hearing, the state wants permission to observe" and not participate, Alan Curry, chief of the appellate division of the DA's office, told Fine this morning as the hearing in State of Texas v. John E. Green began.

Based on the case contained in the above post, Curry is right to decline to be a part of the dog and pony show.

The trial court drew a distinction between a Fifth Amendment due process claim and an Eighth Amendment cruel and unusual punishment claim. That is the theory currently being urged by the defense. I cannot comment on the matter, but I would be interested in what others think about this distinction.

quote:

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Originally posted by JB:
"After now having stated our objections to this hearing, the state wants permission to observe" and not participate, Alan Curry, chief of the appellate division of the DA's office, told Fine this morning as the hearing in State of Texas v. John E. Green began.

Based on the case contained in the above post, Curry is right to decline to be a part of the dog and pony show.

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+1

Relying on the 8th Amendment is even weaker. The 8th Amendment focuses on reviewing the punishment and whether it is cruel and unusual, not on whether the defendant received a fair trial or is innocent.

Standing to make that argument depends even more on the defendant having been actually convicted and sentenced. Not on holding a theoretical hearing on whether it is possible for a defendant to be convicted when innocent.

This is so ludicrous. This Judge, who is not so Fine, has taken the bait -- hook, line and sinker.