Thursday, March 4, 2010

The Death Penalty Is Unconstitutional - At Least in Texas (Updated 2 times)

Credit to Paul Kennedy at The Defense Rests for being the first out of the box with this news from Brian Rogers at the Houston Chronicle.
A Houston judge this afternoon declared the death penalty unconstitutional in a pretrial hearing in response to a motion from defense lawyers.

In what might be the media understatement of the year, Rogers adds,
State District Judge Kevin Fine's ruling is unlikely to withstand appellate review.
More details when I get them.


According to the Texas Lawyer's TexParte Blog, Fine's ruling was made in the case of John Edward Green, Jr. who is charged with capital murder for the killing and robbery of Tina Vo in June 2008.  Green's lawyers, John Keirnan and Robert Loper convinced the judge that the Texas death penalty statute violates the Fifth Amendment right to due process.  Keirnan is quoted as saying that the point is that the death penalty can't be administered fairly in Texas.

For whatever it's worth, either Fine or the blog (or both) is off base in referencing the Fifth Amendment's due process protection since that only applies to the federal government, and Texas (despite its governor loving the U.S. so much that he might support secession from it) is not the federal government.  The Due Process protection that applies to the states is in the Fourteenth Amendment.


Mark Bennett points out in a comment that TexParte not only got the wrong Amendment, but also the wrong statute.  On his own blog Mark explains that Judge Fine didn't say the Texas death penalty was unconstitutional.  Rather, he said that the implementing procedures are unconstitutional.  That is, Texas can constitutionally sentence you to die and execute you if it can just find a way to go about doing it.  But since the procedures are inadequate to ensure accurate results . . . .

If the judge issued an opinion, I haven't seen it.  But here (again thanks to Mark) is the motion he granted.

1 comment:

  1. Tex Parte Blog, which interviewed Green's lawyer, got not only the amendment wrong (the motion requests relief under the 8th and 14th) but also the number of the statute.