Friday, Fine clarified that he declared the procedures Texas has in place to carry out the death penalty unconstitutional, a legal parsing even to the prosecutors trying the case.
The Houston Chronicle clings doggedly to the false proposition that Kevin Fine “declared the death penalty unconstitutional Thursday.” On Friday Judge Fine clarified why he was declaring the procedures unconstitutional, not that he was declaring the procedures unconstitutional:
I do, however, want to clarify because this was a multi-point motion, I want to clarify my ruling on the motion and I want to also have — give the State and the Defense an opportunity to present any authority that they may have come up with since my ruling yesterday afternoon until today or this morning.
. . . .
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.
The Chronicle may think it has some inside information suggesting that what the judge meant to do was to declare the death penalty unconstitutional, but court orders are word magic, and a judge doesn’t do any more or less than his orders say. It was clear from Thursday’s transcript and order (once you figured out that “37.01” meant “37.071”) that the procedures, and not the penalty, were unconstitutional in the judge’s view.
The difference may not be apparent to the Chronicle’s lay readers, but it ought to be clear to a reporter with a law degree, and it’s a newspaper’s responsibility, abdicated in this case, to try to educate its readers rather than make up sensational news.
Which brings us to “parsing.” At some point in the last nine years to parse became a pejorative (along with nuance and empathy). But parsing—examining the text minutely, word-by-word and comma-by-comma—is how we understand, apply, and counter word magic. Lawyers parse. Statutes, opinions, and orders are written to be parsed. We don’t just look for the gist of the matter and act on that; it’s a poor lawyer that does. Judges and appellate courts know this. The prosecutor knows it too; I will bet lunch that “legal parsing” was a phrase suggested by the Chronicle and not rejected by Bill: “Would you call this legal parsing?” “Yeah, sure, whatever. As a practical matter . . .”
In the course of my career so far I’ve seen the quality of legal reporting in the Houston Chronicle improve. The problems with Texas’s death penalty procedures are real, and are worthy of discussion even to people who in principle favor the death penalty.
The Chronicle’s coverage of Judge Fine’s ruling disserves and disappoints.