Who Messed with Texas?
Miracles do happen. The Houston Chronicle reports that a state district judge has done the unthinkable: declared the death penalty unconstitutional. Texas – the capital of capital cases and executions – now finds itself channeling the likes of California and other “blue” states that have wrangled with the constitutionality of the death penalty and found it to be cruel and unusual.
Perhaps the the biggest import of the decision is that Judge Kevin Fine emphasized that one can assume that innocent people have been executed (an allusion to the Cameron Todd Willingham case, perhaps?). In his decision Judge Fine posed the rhetorical question: ”Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?…I don’t think society’s mindset is that way now.”
Predictably, the response from the Texas Attorney General was swift, labeling the decision as “an act of unabashed judicial activism.” Texas legal scholars and lawyers doubt the decision will withstand appellate review.
The case itself is unremarkable in the realm of death penalty cases. John Edward Green, Jr. alleged shot and killed a Houston woman and her sister in 2008. Despite Judge Fine’s reference to innocence, this case does not appear to be one where the defendant alleges he is actually innocent of the crime. Instead, Green’s lawyers argued that Texas law related to jury instructions in death cases violates the United States Constitution’s prohibition on cruel and unusual punishment.
The decision itself is groundbreaking, but soon will be buried under the Texas dirt once the appellate courts get a hold of it.
“Judge’s Clarification Puts Him in More Hot Water: Texas Death Penalty Ruled Unconstitutional” (1)
Dudley Sharp, contact info below
3/7/10
The judge clarifies that his decision is ” . . . limited only to the due process claim that 37.071 (2) has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons”. (1)
As such potential has existed since the beginning of executions, it is curious that the judge has made this ruling when (1) the probability of such an event occurring is now lower than at any other time in history, (2) the judge cannot point to a case whereby an innocent has been executed in the modern US death penalty era, post Gregg v Georgia, and (3) the judge can cite no precedent wherein perfection is required in the implementation of due process.
I agree with Judge Fine that judges should be gatekeepers. However, his claim that this is a case of “first impression”, with no precedent to rely upon, makes him the gatekeeper to Alice in Wonderland’s rabbit hole, wherein he welcomes us all. Some of us will refuse, as reality requires.
The judge states: “We execute innocent people. This is supported by the exoneration of individuals off of America’s death rows. I repeat, again, that the vast majority of those cases involve DNA evidence.”
After, again, not fact checking, the judge has repeated his earlier error, by again using the wrong 200 released number from the Innocence Project(3), which is in reference to cases IN THE ENTIRE PRISON SYSTEM – NOT JUST DEATH ROW – whereby prisoners were released because of DNA exclusion.
The real number is 251 (4), of which 9-10 represent inmates released from death row (5) , or 4% – hardly a vast majority.
In reality, the number of actual innocents released from death row is closer to 25 (6), of which the 9-10 DNA cases make up 40% of those so identified and released, also not a vast majority, and which represents about 0.3% of all those sent to death row, since Furman v Georgia.
Furthermore, evidence of releasing innocents from death row is only evidence of releasing innocents from death row. It is not evidence of executing innocents, for which Judge Fine offers not one case.
Well, predictably, he offers one.
Judge Fine “cites” a case from Travis County, with Judge Charley Baird presiding, whereby ” . . . the deceased was in fact innocent and, thereafter, executed by the state of Texas.”
This is the case of Tim Cole, who died in prison, innocent of the rape he was found guilt of and imprisoned for. This was not a death penalty case. Besides getting all of the facts wrong, Judge Fine appears to have made the case (for himself) that we can no longer incarcerate people because it denies their due process rights, because of the probability that actual innocents die in prior to due process causing their release.
Is Judge Fine this bad? Well, yes, he is.
I agree with Judge Fine that innocents have been executed, It doesn’t seem likely it has occurred in the modern era in the US. The death penalty offers greater protection for innocents than does its claimed alternative, life without parole (7). Given such a reality, possibly Judge Fine’s next ruling will be that all incarcerations violate due process, as well. There is, after all, always the potential that an actual innocent incarcerated will die, prior to them being discovered and released by due process.
There may even be the potential for Judge Fine to recognize the importance of both the facts and the law.
(1) Raw Video “Judge Fine’s clarification on Ruling”, ABCNews, Channel 13 TV, Houston,
http://abclocal.go.com/ktrk/video?id=7314442
(2) Texas Code of Criminal Procedure – Article 37.071. Procedure In Capital Case
http://law.onecle.com/texas/criminal-procedure/37.071.00.html
(3) “Judge Fine was injudicious and irresponsible”, Dudley Sharp, 3/5/10
(4) “Innocence Project Case Profiles”, The Innocence Project,
http://www.innocenceproject.org/know/
(5) “The Innocent and the Death Penalty”, Innocence Project,
http://www.innocenceproject.org/Content/1857.php
NOTE for fact checking. It appears that there are 9-10 inmates removed from death row because of DNA exclusion. An additional 7-8 were released from prison because of DNA exclusion, in cases where those inmates were once on death row. It appears 17 is a solid number for inmates released because of DNA exclusion, cases which were, at sometime, all on death row. NOTE ALSO that there may be some challenge to actual innocence in some of these cases.
(6) The 130 (now 139) death row “innocents” scam
http://homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx
(7) “The Death Penalty: More Protection for Innocents”
http://homicidesurvivors.com/2009/07/05/the-death-penalty-more-protection-for-innocents.aspx
Some additional references
“The Innocent Executed: Deception & Death Penalty Opponents”
http://homicidesurvivors.com/2009/10/08/the-innocent-executed-deception–death-penalty-opponents–draft.aspx
“A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection”, Lester Jackson Ph.D.,
http://www.tcsdaily.com/article.aspx?id=102909A
“Cameron Todd Willingham: Another Media Meltdown”, A Collection of Articles
http://homicidesurvivors.com/categories/Cameron%20Todd%20Willingham.aspx
Sincerely, Dudley Sharp
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Judge Fine is my hero!
http://www.facebook.com/?ref=home#!/group.php?gid=10150105835735244&ref=mf
Catch British TV From Abroad: http://www.vpn-privacy.org/index.php?main_page=index&cPath=10
“Judge’s Clarification Puts Him in More Hot Water: Texas Death Penalty Ruled Unconstitutional” (1)
Dudley Sharp, contact info below
3/7/10
The judge clarifies that his decision is ” . . . limited only to the due process claim that 37.071 (2) has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons”. (1)
As such potential has existed since the beginning of executions, it is curious that the judge has made this ruling when (1) the probability of such an event occurring is now lower than at any other time in history, (2) the judge cannot point to a case whereby an innocent has been executed in the modern US death penalty era, post Gregg v Georgia, and (3) the judge can cite no precedent wherein perfection is required in the implementation of due process.
I agree with Judge Fine that judges should be gatekeepers. However, his claim that this is a case of “first impression”, with no precedent to rely upon, makes him the gatekeeper to Alice in Wonderland’s rabbit hole, wherein he welcomes us all. Some of us will refuse, as reality requires.
The judge states: “We execute innocent people. This is supported by the exoneration of individuals off of America’s death rows. I repeat, again, that the vast majority of those cases involve DNA evidence.”
After, again, not fact checking, the judge has repeated his earlier error, by again using the wrong 200 released number from the Innocence Project(3), which is in reference to cases IN THE ENTIRE PRISON SYSTEM – NOT JUST DEATH ROW – whereby prisoners were released because of DNA exclusion.
The real number is 251 (4), of which 9-10 represent inmates released from death row (5) , or 4% – hardly a vast majority.
In reality, the number of actual innocents released from death row is closer to 25 (6), of which the 9-10 DNA cases make up 40% of those so identified and released, also not a vast majority, and which represents about 0.3% of all those sent to death row, since Furman v Georgia.
Furthermore, evidence of releasing innocents from death row is only evidence of releasing innocents from death row. It is not evidence of executing innocents, for which Judge Fine offers not one case.
Well, predictably, he offers one.
Judge Fine “cites” a case from Travis County, with Judge Charley Baird presiding, whereby ” . . . the deceased was in fact innocent and, thereafter, executed by the state of Texas.”
This is the case of Tim Cole, who died in prison, innocent of the rape he was found guilt of and imprisoned for. This was not a death penalty case. Besides getting all of the facts wrong, Judge Fine appears to have made the case (for himself) that we can no longer incarcerate people because it denies their due process rights, because of the probability that actual innocents die in prior to due process causing their release.
Is Judge Fine this bad? Well, yes, he is.
I agree with Judge Fine that innocents have been executed, It doesn’t seem likely it has occurred in the modern era in the US. The death penalty offers greater protection for innocents than does its claimed alternative, life without parole (7). Given such a reality, possibly Judge Fine’s next ruling will be that all incarcerations violate due process, as well. There is, after all, always the potential that an actual innocent incarcerated will die, prior to them being discovered and released by due process.
There may even be the potential for Judge Fine to recognize the importance of both the facts and the law.
(1) Raw Video “Judge Fine’s clarification on Ruling”, ABCNews, Channel 13 TV, Houston,
http://abclocal.go.com/ktrk/video?id=7314442
(2) Texas Code of Criminal Procedure – Article 37.071. Procedure In Capital Case
http://law.onecle.com/texas/criminal-procedure/37.071.00.html
(3) “Judge Fine was injudicious and irresponsible”, Dudley Sharp, 3/5/10
(4) “Innocence Project Case Profiles”, The Innocence Project,
http://www.innocenceproject.org/know/
(5) “The Innocent and the Death Penalty”, Innocence Project,
http://www.innocenceproject.org/Content/1857.php
NOTE for fact checking. It appears that there are 9-10 inmates removed from death row because of DNA exclusion. An additional 7-8 were released from prison because of DNA exclusion, in cases where those inmates were once on death row. It appears 17 is a solid number for inmates released because of DNA exclusion, cases which were, at sometime, all on death row. NOTE ALSO that there may be some challenge to actual innocence in some of these cases.
(6) The 130 (now 139) death row “innocents” scam
http://homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx
(7) “The Death Penalty: More Protection for Innocents”
http://homicidesurvivors.com/2009/07/05/the-death-penalty-more-protection-for-innocents.aspx
Some additional references
“The Innocent Executed: Deception & Death Penalty Opponents”
http://homicidesurvivors.com/2009/10/08/the-innocent-executed-deception–death-penalty-opponents–draft.aspx
“A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection”, Lester Jackson Ph.D.,
http://www.tcsdaily.com/article.aspx?id=102909A
“Cameron Todd Willingham: Another Media Meltdown”, A Collection of Articles
http://homicidesurvivors.com/categories/Cameron%20Todd%20Willingham.aspx
Sincerely, Dudley Sharp
e-mail sharpjfa@aol.com, 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.