The Last Best Hope

They want him off the case.

That's Kevin Fine, Judge of the 177th District Court in Harris County, Texas, presiding over the capital murder trial State of Texas v. John Edward Green, Jr. The one who said that the procedures for imposing the death penalty in Texas are unconstitutional, clarified that decision, then rescinded it but scheduled a hearing on actual innocence for April 27.

Bennett is first out of the box with the news that on Thursday, Pat Lykos, the District Attorney for Harris County, filed a motion to recuse. She said the judge can't be fair because he believes innocent people have been executed and wants to hold a hearing on whether that's so. She said the judge can't be fair because he expresses dismay at the thought of executing someone who might be innocent but that the possibility, even the likelihood, is irrelevant as to whether the death penalty is constitutional. She said the judge can't be fair because higher courts have denied similar motions without hearings. She said the judge can't be fair because he's lying when he says that he believes the death penalty is constitutional. She said the judge can't be fair because he thinks Green is innocent or is presumed innocent or something. She said the judge can't be fair because he said he's the only judge in the state with the guts to actually declare the statute unconstitutional if he decides it is. And she said the judge can't be fair because some of his off-the-top-of-his-head statements misstate facts.

Mostly, she said that the judge can't be fair because that's the only way she can stop Judge Fine from holding a hearing on whether Texas has executed innocent people. And we know that Texas can't hold a hearing like that. Just ask Rick Perry.

The technical legal question is whether any of this, or all of it, is enough to lead a reasonable person to believe the judge is biased. The answer to that, pretty clearly, is no. But a clear answer to the technical legal question may not be of much moment in so contentious and politically charged an issue.

A couple of years ago, a trial judge in Ohio was planning to hold pre-trial hearings in a couple of death penalty cases regarding the constitutionality of Ohio's system of lethal injection. He appointed me to litigate the question. He ordered the state to turn over materials describing how it went about murdering people. The state filed a complaint with the Ohio Supreme Court arguing that the judge

1. Had no right to order discovery regarding Ohio's approach to lethal injection;
2. Had no right to appoint me to litigate the constitutionality of Ohio's approach to lethal injection;
3. Had no right to hold a hearing on the constitutionality of Ohio's approach to lethal injection; and
4. Had no right to issue a ruling on the constitutionality of Ohio's approach to lethal injection.

The judge fought the state and the court denied the state's request (without written opinion, so we don't actually know why). The hearing was quite a show. And the judge concluded, ultimately, that Ohio's approach to lethal injection was unconstitutional (a ruling the state promptly determined to ignore).

The thing is, you never know.

What you do know is that the hearing needs to occur. And that means a judge with the guts to do it.