HOUSTON – A Texas judge in the county that sends more inmates to death row than any other in the nation is apparently taking a stand.
Saying he could assume that innocent people have been executed, state District Judge Kevin Fine ruled in a pre-trial motion in a capital murder case on Thursday that the death penalty was unconstitutional and found himself on Friday 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 during a court hearing Friday.
"To say that I am ignoring precedent or legislating from the bench I think is slightly overreaching," he said.
Fine 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 during a robbery in front of their home in June 2008.
Attorneys for John Edward Green Jr. argued Texas' death penalty statute is unconstitutional because it violates their client's right to due process of law under the 5th Amendment since hundreds of innocent people around the country have been convicted and sent to death row and later exonerated.
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 mindset is that way now."
On Friday, Fine said he was only focusing on the due process issue the motion brought up and the only guidance on that issue 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."
At a news conference Friday, Harris County District Attorney Pat Lykos said the defense team's legal arguments are not new and have been previously ruled upon by state and federal courts.
"The Texas death penalty statute is constitutional. We have had executions this year with due process raised," she said. "I see this as unnecessarily delaying justice."
But Casey Keirnan, one of Green's defense attorneys, disagreed with Lykos, saying the due process arguments he and co-counsel Robert Loper argued are new within the context of recent exonerations.
"I predict today is the beginning of the end of the death penalty in Texas," he said. "It has to start somewhere. For Kevin Fine to say not on my watch is one of the bravest things for a jurist to do."
Lykos described Keirnan's comments on the end of the death penalty as "hyperbole."
Fine was expected on Wednesday to rule on prosecutors' motions to have him reconsider his decision or to still proceed with the trial as a death penalty case.
If Fine rejects those motions, prosecutors are expected to take their case to the Texas Court of Criminal Appeals in Austin. It was unclear how long that appeals process could take but any appeal will likely delay the trial, which had been set to begin with jury selection on March 31, prosecutors said.
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.
Perry also slammed Fine's ruling, saying he supports the death penalty as do the majority of people in Texas. Last year, the state executed 24 people, including six cases from Harris County. Three people have been executed so far this year, none from Harris County.
"This is a clear violation of public trust and I fully support the Harris County District Attorney's decision to pursue all remedies," Perry said.