A Texas judge in the county that sends more inmates to death row than any other in the nation has declared the death penalty unconstitutional.
State District Judge Kevin Fine made the ruling Thursday in a pre-trial motion in a capital murder case, saying he could assume that innocent people have been executed. He is now facing a torrent of criticism from a string of high-profile Texans including Gov. Rick Perry.
Fine, a Democrat who is heavily tattooed and says he is a recovering alcoholic and former cocaine user, answered some of the criticism on Friday during a court hearing. He denied accusations that he was legislating from the bench and said there was no precedent to guide him in resolving the issues raised by defense attorneys in a case involving a man accused of fatally shooting a Houston woman and wounding her sister in June 2008.
The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty is unconstitutional for their client, John Edward Green Jr.
Fine said in his ruling Thursday that it is safe to assume innocent people have been executed.
"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?" he said. "I don't think society's mind-set is that way now."
The decision is almost certain to be overturned by appellate courts in Texas, the country's most active death penalty state.
Texas Attorney General Greg Abbott, who called Fine's ruling one of "unabashed judicial activism," offered to help the district attorney appeal Fine's decision, which Abbott said ignored U.S. Supreme Court precedent.
"We regret that the court's legally baseless order unnecessarily delays justice and closure for the victim's family including her two children, who witnessed their mother's brutal murder," said Abbott, a Republican.
Fine responded from the bench on Friday.
"To say that I am ignoring precedent or legislating from the bench I think is slightly overreaching," he said.
He said the only guidance he has on the issues raised is what has been provided by the U.S. Supreme Court "that places a duty on trial courts to act as gatekeepers in interpreting the due process claim in light of evolving standards of fairness and ordered liberty."
"So I am now charged with interpreting such evolving standards and I'm called upon to assess the current state of our society's standards of fairness and ordered liberty in light of what we as a society now know. And that is that we execute innocent people. This is supported by the exoneration of individuals off of America's death rows," he said.
Gov. Rick Perry joined Abbott and Harris County District Attorney Patricia Lykos in slamming Fine's ruling.
"Like the vast majority of Texans, I support the death penalty as a fitting and constitutional punishment for the most heinous crimes," Perry said. "This is a clear violation of public trust and I fully support the Harris County District Attorney's decision to pursue all remedies."
Green's lawyers had argued the law providing for the procedures surrounding instructions to a jury in the Texas Code of Criminal Procedure violate the Eighth and 14th Amendments to the U.S. Constitution prohibiting cruel and unusual punishment and guaranteeing the right of due process.
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