Motion to Recuse in John Edward Green Case

 Posted on April 01, 2010 in Uncategorized

The State has moved to recuse Judge Kevin Fine from the Green case. You saw it first here:

State's Motion to Recuse Judge Fine from Death Penalty Case

I haven't analyzed the motion closely (and, truth be told, I probably won't unless someone wants to pay me to), but one part of the argument seems to be that because the Texas Court of Criminal Appeals and the U.S. Supreme Court have in the past (without the benefit of evidence that might be developed in this case) held that the Texas death penalty scheme passes constitutional muster, trial courts are forever barred from even inquiring into the constitutionality of the scheme. That part couldn't possibly be right.

The trial court is the court in the best position to develop the evidence that the appellate courts might need in ruling on the validity of the death penalty. It's what trial courts do. To take one particular example, if there were proof that a (factually) innocent person had been executed, that might well affect the views of the Court of Criminal Appeals and the U.S. Supreme Court. But no court has ever taken the initiative to delve into the question of how many-or even whether-innocents have been executed. The counterargument is that, if Mr. Green is not (factually) innocent, it doesn't matter whether other people who were innocent got executed. The counter-counter argument is that, if innocent people have (after being subjected to the same process as Mr. Green) been executed, we can't trust the process to give us a reliable result in Mr. Green's case.

Also, the State takes Judge Fine to task for presuming Mr. Green innocent. Which, with all due respect to Pat Lykos, who signed the motion, and to my friends who actually wrote it, is a really boneheaded thing to put down on paper.

I think the State is wrong, but Judge Fine should not resist the recusal. It's unbecoming, and I think it smacks of impropriety, for a judge to fight to stay on a case. I've been critical before of judges doing so.

Mr. Green's lawyers should fight that fight, though, because if there is a judge on the bench in Texas who is willing to hold the death penalty unconstitutional, it's Judge Fine.