Saturday, March 6, 2010

Lone Stars and Buckeyes

As you know, on Thursday, Kevin Fine, Judge of the 177th District Court in Harris County (that's Houston) Texas, ruled that Article 37.071 of the Texas Code of Criminal Procedure, the statute that sets out the procedures to be followed in the trial of capital cases, was unconstitutional.  If the ruling were to stand up, Texas would be unable to seek the death penalty for John Edward Green, Jr. who is charged with capital murder for the killing and robbery of Tina Vo.

They were back in court Friday.  The  state filed motions for reconsideration and to try the case under Article 37.071 as if the court had denied the motion to find 37.071 unconstitutional.  The judge said that he would rule on those motions Wednesday.

That's just the procedural folderol of the day.  We'll catch up on all that Wednesday when the judge rules.  What was far more interesting today (except perhaps to Mr. Green, the family of Ms. Vo, and maybe the various lawyers involved in the actual litigation), was the explanation Judge Fine gave of Thursday's ruling.   

Mark Bennett provides the transcript, and some careful analysis.  My focus is a little different.  Anyway, here's the transcript.  Some excerpts and comments below.

Green Fine Transcript 2                                                            

First, Judge Fine made clear that the holding was limited and narrow.
My holding with regard to the Defense motion is limited only to the due process claim that 37.071 has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons.
That's clear enough. What's interesting, though, is how he got there.
He found somewhere a direction from the Supreme Court that, as a trial judge, he is to be a "gatekeeper."
All I can do, as this issue has been raised, is go by what guidance there is; and the only guidance that I have found is that provided by the United States 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.
Clearly I have been charged with that duty.  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.  That that is that we execute innocent people.
Really, it's one hell of a claim.  And what follows from it is, perhaps even more impressive.  The people, he concludes, don't think the death penalty is worth that cost.
And because the Constitution protects us all, the question to be asked and answered in resolving this issue is whether we as a society -- we have to look at ourselves.  Are we willing to allow our sons, our daughters, our brothers, our sisters, our friends to be the sacrificial lams should they be wrongly accused of a capital offense and then be executed.
I don't think there is -- there may be some people out there that would say they're willing to let their son die so that the State of Texas can have a death penalty, but I think those persons would be few and far between.
I find that the greater majority of our society would not be so willing to allow the execution of their friends and family or to be the sacrificial lambs so that the State of Texas can have a death penalty.  I think that the changing and evolving standards of fairness and ordered liberty are such that in light of the fact that we have overwhelming evidence that we are, in fact, executing innocent persons, I don't believe that our evolving standards are at the point where we're willing to sacrifice even those that have criminal records and even those that come from the Fifth Ward or the Ninth Ward of New Orleans or the Fourth Ward or the Third Ward of Houston.
I think society has begun to take a look within itself, and I think the proper question to be asked is just that  Are we willing to let our own be the sacrificial lambs?  I don't think society is willing to do that.
It's terrific sentiment.  It's also, I suspect, terrifically naive.

Oh, I don't think there are many folks who'd be willing to sacrifice their own innocent children in order for Texas to have a death penalty.  But the odd abstract innocent person, someone else's child, sure.  Not mine, but yours.  After all, the polling data make clear that most people believe we execute innocent folks at least occasionally and most of those people support the death penalty. 

Still, every time a judge stands up and says, "enough," every time anyone does, that's a step.
Remember the old song:
One man's hands can't tear a prison down.
Two men's hands can't tear a prison down.
But if two and two and fifty make a million,
We'll see that day come round;
We'll see that day come round.


In 1988, Anthony Klann was murdered in Cleveland.  Ultimately three men were charged with the killing: Edward Espinoza, Michael Keenan, and Joe D'Ambrosio.  Espinoza testified against the others in exchange for a lesser sentence.  Keenan and D'Ambrosio were sentenced to die.  In March 2006, a U.S. District Court Judge Kathleen O'Malley in Cleveland ordered a new trial for D'Ambrosio based on evidence that the prosecutor had improperly concealed from the defense.  Had the defense had that evidence, O'Malley concluded, would have been less likely to convict him.  The 6th Circuit agreed.

The state's case, already perilously weak, suffered another crippling blow when Espinoza died.  Thursday, while Judge Fine was declaring the Texas death penalty procedures unconstitutional because they didn't do enough to ensure that the innocent would not be sentenced to die, Judge O'Malley was ruling that the State of Ohio could not retry D'Ambrosio.  Their own misconduct was just too great.

Friday, the Cuyahoga County Court of Common Pleas dismissed the charges against D'Ambrosio.

Then there's Lawrence Reynolds.  You'll remember that he was next up in the fall when Ohio failed to kill Romell Broom.   Governor Ted put the killing off until March.  It's here.  They're planning to murder him Tuesday morning.

We're making progress.  But we're not there yet.

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