Motion to Recuse in John Edward Green Case

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.


8 responses to “Motion to Recuse in John Edward Green Case”

  1. Finally, Mark, the State agrees with you. Did you notice on page 11 of the recusal, the State cited an acknowledged that the State has NO RIGHT to due process!

    I’m with you on not only the “state has no rights” portion but also that Lykos would comment that Judge Fine is presumming innocence – I guess our Constitution is different from hers….

    • I did notice that! Now that we’ve educated the State that it has no right to due process, it’s time to start explaining that presumption of innocence thing.

  2. From page 15: “And he reiterated his assumption that the defendant was innocent by noting that society is not ‘willing to let our own be the sacrificial lambs.’” (They even got so close to saying “presumption of innocence” right there in their own motion…)

    A very wise professor of mine once said that there are only three types of people who become prosecutors: (1) the ones who really want a lot of trial experience, (2) the ones who really aren’t good enough to get a job anywhere else, and (3) the ones who really think they’re doing the work of sweet little baby Jesus.

    I wonder which category the people who wrote this motion fall under?

  3. There is a difference between a person being presumed innocent and actual innocence. I think the motion refers to Fine presuming actual/factual innocence.

    • Maybe I’m confused about how the presumption of innocence should work then. Can you explain the difference?

  4. So wrote that motion? In the past, Durfee dealt with all things recusal – but I would wager significant $ he didn’t write that.

  5. What Cjclawyer really means is that the Defendant is entitled to be presumed innocent, but not for anyone to presume he is really innocent. In other words, he is entitled to the poresumption of innocence, but not to have that presumption taken seriously. “Sure, I presume he’s innocent, nudge nudge, nod, nod, wink, wink, know what I mean, know what I mean…”

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