Tuesday, December 7, 2010

The 177th's Death Penalty Hearing

The media (especially the Houston Chronicle) has been abuzz this week over the hearing going on in Judge Kevin Fine's court about the death penalty. Specifically, this morning, the Chronicle seems aghast that District Attorney Pat Lykos would order her appellate division (represented by Alan Curry) to remain silent during the hearing.

The Chronicle calls Lykos' move "bold".

I'll call it something else -- smart.

Yes, I know you are probably shocked that I agree with Pat Lykos on something, but let's look at what other choice does she really have in this matter at this point? The Harris County District Attorney's Office has registered their objection to the hearing taking place at all. They have put those objections in writing and Judge Fine has overruled them and is proceeding with the hearing anyway.

So, the move Lykos and Company are making is really the only one they can play now. They don't believe that the hearing has any legal value because it isn't something authorized by the Code of Criminal Procedure. Legally and respectfully, they aren't going to justify its existence by participating in it.

And, in this, I think they are taking the right tactic.

When I was in law school, I interviewed then-District Attorney Johnny Holmes about the Death Penalty. One of the many things he pointed out to me when I interviewed him that afternoon was that he would never participate in a Death Penalty debate, despite the fact that he was constantly bombarded with invitations to do so. The point that Mr. Holmes made to me was that the Death Penalty is something that is such a hot-button issue that it is deeply ingrained in the way a person thinks and feels. Much like issues of abortion or anything else that ties into a person's definition of religion and/or morality, one's feelings on the Death Penalty aren't going to get changed by a debate.

He was right, and the Lykos crew is treating the hearing in Judge Fine's court as a very public debate in a courtroom. What is the point in entering into it?

I like Judge Fine, and I think his heart is in the right place. I also think he has courage in his attack on the Death Penalty. It is certainly not going to be the most politically savvy move he has made on the bench.

But he knows that.

And he's proceeding anyway.

I find his principles admirable, even though I don't really agree with what he's doing.

I had a talk with Pat McCann last night over, um, coffee, about whether or not the hearing in the 177th would actually change anything. We disagreed over whether or not it would. Personally, I think the hearing will bring a lot of attention to the Death Penalty in Texas, but I don't think it will change anything directly.

But, I could be wrong about that. I have been before.

In the meantime, grab some popcorn and sit back and watch. It should be interesting.


dudleysharp said...

Judge Fine: The Ringmaster & the death penalty
Dudley Sharp, contact info below
12/6/2010 8:49:00 A.M.

Based upon the possibility of executing an innocent, Texas Judge Fine cannot, legitimately, find the Texas death penalty unconstitutional.

Should Judge Fine, wrongly, find the death penalty unconstitutional, he will be reversed upon appeal, just as Federal District Court Judge Jed Rakoff was reversed in the Quinones case (2002), when Judge Rakoff made the same ruling based upon the same finding.

It is settled law.

I suspect Judg Fine will ringmaster over a circus of anti death penalty presentations/testimonies, the prosecutor will present little to no rebuttal but will simply object over and over, again, understanding that the circus will play out.

Should Judge Fine rule the death penalty unconstitutional, he will have his moment in the anti death penalty sun - the media, as other anti death penalty folks, will praise Judge Fine's brilliance and, then, he will be reversed on appeal.

My hope is that the prosecution would make a point by point rebuttal to all the anti death penalty claims. However, I doubt they will. I suspect the prosecution knows that would be a waste of their time and money.

I suspect one of the following will occur:

If Judge Fine pays attention to the law, he will rule that death penalty constitutional and the current case , Green, will proceed. If Fine rules the death penalty unconstitutional, he will be reversed, then the Green case will proceed.

It should be noted that innocents are more protected with the death penalty. See below.

(NOTE: The DNA hair evidence in the Claude Jones case does not, remotely, even hint that Jones may be an innocent executed. The eyewitness testimony identifies Jones as the murderer, who did not, remotely, look like Jones' co defendant.)

REVIEW for fact checking


1) "The Death Penalty: More Protection for Innocents"

The false innocence claims by anti death penalty activists are legendary. Some examples:

2) "The Innocent Executed: Deception & Death Penalty Opponents"

3) EXONERATION has been given a new, highly distorted definition by anti death penalty activists. That new definition has nothing to do with actual innocence or the process of being cleared of wrongdoing, which is the real meaning of the word. The deception has been well and broadly exposed since 1999.

Just ask the anti death penalty folks: "How many are actually innocent and can you prove that any of those are actually innocent?".

The 130 (now 139) death row "innocents" scam

4) "Cameron Todd Willingham: Another Media Meltdown", A Collection of Articles

There is no evidence for innocence in this case.

5) "A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection", Lester Jackson Ph.D.,

Anonymous said...

I disagree with Pat's decision. From a legal, tactical standpoint, the decision potentially waives certain objections. But from a political standpoint, our office is letting the anti-death penalty people have free reign to make unrebutted statements, many of which are flat out false. And these statements will be reported nation wide, as has already happened in national publications such as the New York Times. When the public has misinformation presented to it as facts, we as the DA's office fails in its obligations to champion the truth.

This is not a "debate," but is instead a court hearing. We don't get to decide that we don't want to play ball. We have a Texas constitutional obligation to advocate the State's position, and we are ignoring that obligation because Pat feels that she is right on her initial objections. But what happens if there is another Dem sweep, and our appellate court make-up changes? We have then waived our objections. Even though the judge and the anti-death penalty people are politicising the death penalty, the DA's office has an obligation to advocate. And we're ignoring that responsibility.

Anonymous said...

I'm loath to agree with Lykos on anything, but standing mute is the way to go to assure any ruling by Fine that the DP is unconstitutional CANNOT be affirmed on appeal. This is a farce of an hearing and the only reason it's being held is for publicity, so if the media would just ignore morons like Fine, they'd be relatively harmless.

BLACK INK said...

Murray, I respectfully disagree.

The DA should take a stand: either fully participate in the hearing or don't show up.

The fact that any prosecutor is present gives the proceeding credibility.

Lykos' silent treatment gives the impression that the DAs office now has serious reservations about seeking the death penalty.
If any one should appreciate that perception is more important than reality it is Lykos.

Perhaps after Christmas there will be no ADAs left willing and able to try a death capital and this is an easy out for Lykos.

Murray Newman said...

I agree with you, Black Ink, but my understanding was that they were not going to show up for the hearing, but Judge Fine ordered them to be there. I think that they are trying to remain respectful of the Court, generally, but are basically being held against their will.

I feel sorry for Alan Curry.

I just think that under the circumstances that they are doing the right thing. I'm surprised that they have Alan there, though. If they really wanted to send a message, they should have sent a brand new Misdemeanor # 3.

BLACK INK said...

If Pat Lykos was a true leader who felt strongly on the issue; she would not have made a fool out of one of her senior ADAs in this manner.

Lykos could have easily called Judge Fine out on this circus by electing to take the lead personally and challenge him to hold a sitting DA in contempt for a purely political pursuit.
But that would have taken courage of conviction.....not a Lykos strong point.

Anonymous said...

(NOTE: The DNA hair evidence in the Claude Jones case does not, remotely, even hint that Jones may be an innocent executed. The eyewitness testimony identifies Jones as the murderer, who did not, remotely, look like Jones' co defendant.)

And we are all aware of the infallibility of eyewitness testimony. Where are Keith Pickett's dogs when you need them? I think Texas has some real issues with it's criminal justice system, and the death penalty is by far the most glaring example.

In the 29 years I've practiced criminal defense, I've seen hundreds of clients convicted (or plead out), despite my best efforts, for crimes that they probably didn't commit. That means that both an innocent person may be in jail and the actual perpetrator may be breaking into YOUR car or YOUR home. That is horrible public policy and an incredible waste of taxpayer dollars. While the courtroom of a District Court judge might not be the appropriate forum for a discussion of the death penalty, the discussion needs to take place.

I have been victimized by violent crime. I would be horrified if the police arrested an innocent person for robbing me at gunpoint, and then that innocent person was prosecuted and incarcerated. Just because the cops think he did it, and because he matches the general description is not good enough.

In Dudley Sharp's world, I would have been summarily executed last week after getting my speeding ticket.

Anonymous said...

Black Ink -

Well stated. This is nothing more than a politcal circus in the criminal courthouse. Judge Fine is using the proverbial "bully pulpit" to tray and prove a point and that is NOT what the electorate voted him to the bench to do. The law is well settled on the Texas Death Penalty. Judge Fine is wasting his time and will be reversed on appeal. He know this and he is simply trying to get a reason to rule the way he wants to.

I agree with Murray that the DA is doing the right thing by trying not to legitimize the antics of a judge who is off his rocker. Judge Fine needs to go get drunk, do a few lines and head to the tattoo parlour where he is among his type.

By ordering the State to participate, he is creating an open door for the appeals court to make him look like a sterile burro!

dudleysharp said...

I would have much preferred the prosecution rebut all of the claims of the clownfest, because it will otherwise only result in a worlwide media event promoting anti death penalty nonsense.

But, that is what we will get - Bring in the clowns!

dudleysharp said...


The eyewitness testimony was 100% accurate.

It was a description of the body type and the clothes, both of which matched Jones, exactly, not his co defendants.


Jones had eleven prior convictions in Texas for crimes including murder, armed robbery, assault, and burglary.

He served 6 years of a 9-year prison sentence from 1959 to 1963 and three years of a 5-year sentence from 1963 to 1965.

In 1976, he was convicted of murder, robbery, and assault in Kansas and received a life sentence.

While in Kansas prison, Jones killed another inmate. He was paroled in 1984.

dudleysharp said...

Now, Curry can do something productive.

The Texas Court of Criminal Appeals granted a stay Tuesday in a Houston hearing on the constitutionality of the death penalty in Texas.

The Court of Criminal Appeals said all parties will have 15 days to respond to the stay by drafting legal briefs with their stated opinions.

Anonymous said...

Those who say that standing moot is the best way to ensure the State wins on appeal, please state the legal basis for your opinion. I'm just a simple minded government lawyer, but it sounds like objections outside of the 19 initially lodged would be waived.

dudleysharp said...


that is precisely the risk that I was concerned about but am not sure if my concern was valid.

Any comments from anyone?

Anonymous said...

The reason Lykos didn't show up in the courtroom for the hearing is that she isn't sure WHERE the courtroom is. She's never tried a criminal lawsuit as a prosecutor.

Is it not incredible that she was elected as the District Attorney and after two years, has still never prosecuted a single case?

Why? Because she doesn't know how. Scary...

Anonymous said...

Bottom Line: Serious Issue, wrong timing - jumping the gun - (no pun intended) and more than anything else - sad to say but, Judge Kevin "is NOT" Fine.

He has his own demons to battle and he has let others talk him into thinking he is actually doing the "right thing". Almost reminds me of Judge Sandlin (sp)in the Anna Nicole case. 15 minutes of fame will be over and he will (nothing personal - seriously) NOT be re-elected in 2 years. Kevin is a very nice person with a good heart and I don't see him grandstanding here as much as just being plain wrong and doing a Don Quixote.

dudleysharp said...

It would be nice if Fine would combine a little mind with his heart. Are you saying he doesn't know precisely what he is doing?

I think he is doing just what Charlie Baird was doing. He wants to go out with a great anti death penalty splash and worldwide media adoration. Baird's retiring and Fine knows he won't be reelected.

A release I sent out last March.

Judge Fine gets caught with his pants down
Dudley Sharp

Judge Fine is not truly backing off or rescinding his finding that the Texas death penalty statute is unconstitutional. It is a tactical withdrawal to cover his ass.

I suspect it won't matter what happens in the April 27th hearing. Judge Fine will repeat his original finding.

Judge Fine realized that he looked like a fool and/or an idiot because he was wrong on the facts and the law in his first two episodes. (1)

The judge, now, says ". . . he still wants more information on whether the state’s death penalty statute is unconstitutional because it allows for the possible execution of an innocent person."

Thus, the hearing.

To repeat, Judge Fine there is no law or opinion that finds that due process must be infallible. Since the first incarcerations and the first executions, man has always known that there was always the "possibility" of actual innocents being imprisoned and/or executed and that, in both cases, due process may not reveal that actual innocence prior to their deaths, or ever.

In other words, the judge has already made up his mind that due process must be infallible and no matter what occurs in the hearing, he has already decided to support his original ruling, not matter how fallible his understanding of the facts and the law.

That is also why Judge Fine is also in error in saying that he is not challenging the constitutionality of the death penalty, but instead that the statute is unconstitutional. No judge, what you are doing, as if you don't know it, is challenging the constitutionality of due process that is not perfect.

The April hearing will welcome in a bunch of anti death penalty legal specialists, that will try to cover his rear.

(Current NOTE: The April hearing is the one occurring, now)

It matters not a wit what the state/prosecution side will say to contradict the anti death penalty cabal, inclusive of the judge.

Judge Fine will repeat his original finding and then he will be overturned. He just wants the show, first.

The kings new clothes.

1) a) "Judge Fine was injudicious and irresponsible", Dudley Sharp, 3/5/10 and
b) "Judge's Clarification Puts Him in More Hot Water: Texas Death Penalty Ruled Unconstitutional", Dudley Sharp, 3/7/10

Anonymous said...

I don't know, if they stand on their objections that it's not proper according to the CCP, and do not participate, then they waive ALL substantive objections--because they didn't make any. And to preserve error, you have to object in the first place, which they won't do, and get an adverse ruling, which they won't do. So if the procedure is upheld, they're stuck with Fine's ruling.

And I can see the procedure being acceptable from an equitable standpoint--remember, courts are not solely creatures of statute. That's the primary difference between procedural and substantive due process, even.

At the very least, they could have done what the Navarro County DA did in the Willingham case and try to have the trial court enjoined from engaging in an improper procedure.

I don't like the way we implement the death penalty, or the way Texas courts in general seem stacked against the Defendants. But I am pro-death penalty, so I'd like to have the best procedures possible to make sure we get the right guy.

It's unfortunate that the debate takes place with this particular shit bag, but we defend everyone, lest they come after us next. Our civil liberties are endangered by the DA's in our various counties far more than they ever will be by some Muslim extremist across the world.


Anonymous said...

"Our civil liberties are endangered by the DA's in our various counties far more than they ever will be by some Muslim extremist across the world."

I have yet to see anyone from a DA's Office crash an airplane into a building or get on a plane with PETN in their shoes.

You're the one that's full of shit.

Anonymous said...

I have yet to see anyone from a DA's Office crash an airplane into a building or get on a plane with PETN in their shoes.

A red herring and a scare tactic, all in one. Your life must be so simple.

Ever been shot at or bombed by a Muslim? I haven't (not in the US, anyway). Ever been accused of a crime you didn't commit? I have.

Historically, our executive branch of government (that includes DA's and cops, which I left off earlier) has killed more people and does more harm to us on a daily basis than Muslim extremists ever have.

We are our own worst enemy on over reacting to terrorism, and on failing to make sure the best possible practices, procedures, and science are used in our courtrooms, where we aim to lock up our own citizens.