The Presumption of Innocence in Harris County


But the issue of the defendant’s innocence must be resolved at the guilt stage of trial, not by the trial judge at a pretrial hearing. Judge Fine has demonstrated his favoritism toward the defendant in this case by implicitly making that determination prior to trial.

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.”

These are quotes from the State’s Motion to Recuse Judge Kevin Fine from the John Edward Green case.

The defendant’s innocence is not an “issue” to be resolved at the culpability stage of the trial. “Innocence” won’t enter into it. And while you may argue that a guilty verdict is proof that a defendant is not factually innocent, we know that this is not so. Lots of factually innocent people are found guilty; some of them go to death row. In fact, the point of Judge Fine’s inquiry (as I understand it) is to determine whether the process by which we convict people of capital murder and sentence them to death is accurate enough for us to rely on it.

I know that the presumption of innocence is a rule more honored in the breach than in the observance among the Harris County judiciary, and I know that the idea that judges shouldn’t act like auxiliary prosecutors is a novelty to you—when all you know is judges who are biased toward you, a judge who is unbiased seems biased against you. But Judge Fine, in assuming that Mr. Green is innocent, is not demonstrating his favoritism toward the defendant; he’s doing exactly what he’s supposed to do.

And some people wonder why I don’t think very highly of the prosecutorial profession.

“CJCLawyer,” whose anonymous comment somehow snuck through, commented:

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

He or she is wrong. A person is legally innocent (in other words, “not guilty”) until proven guilty; at the same time he is presumed factually innocent (in other words, “innocent”). As Rusty Hardin, ex-alpha-prosecutor and trial lawyer, says, the presumption of innocence “means he didn’t do it until they prove he did.”


14 responses to “The Presumption of Innocence in Harris County”

    • I don’t object to the State trying to recuse Judge Fine—that’s their job, nothing personal.

      Maybe you’re right. Maybe it is part of their job to try to make of the presumption of innocence a little sophistical joke.

      All the more reason for me not to think very highly of the prosecutorial profession.

  1. Personally, I like how Scotland handles this whole issue of criminal verdicts, If I may given a little leeway to cut and paste from the very “reputable” Wikipedia (Hey at least it’s a place to start): Not proven is a verdict available to a court in Scotland.

    Under Scots law, a criminal trial may end in one of three verdicts: one of conviction (“proven”) and two of acquittal (“not proven” and “not guilty”). Historically, the two verdicts available to Scots juries were that the case had been “proven” or “not proven”.

    As the “not guilty” verdict gained wide acceptance amongst Scots juries, Scots began to use “not guilty” in cases where the jury felt the “not proven” verdict did not adequately express the innocence of the defendant. Shrewd defense then further encouraged this interpretation in order to persuade juries unwilling to bring in a “not guilty” verdict that the “not proven” could be brought in as a lesser or “third verdict”.

    The result is the modern perception that the “not proven” verdict is an acquittal used when the judge or jury does not have enough evidence to convict but is not sufficiently convinced of the defendant’s innocence to bring in a “not guilty” verdict. Essentially, the judge or jury is unconvinced that the suspect is innocent, but has insufficient evidence to the contrary. Technically (though not in the perception of the public), there is no difference between “not proven” and “not guilty” and both are equivalent to the “Not Guilty” verdict of English Law and of other jurisdictions. In popular parlance, this verdict is sometimes jokingly referred to as “not guilty and don’t do it again”.

    Out of the country, the “not proven” verdict may be referred to as the Scottish Verdict, and in Scotland itself it may be referred to colloquially as the bastard verdict, which was a term coined by Sir Walter Scott, who was sheriff in the court of Selkirk.

  2. Mark, this may not be the appropriate place for this comment; but isn’t requiring actual (factual) innocence in Capital cases actually changing the burden of proof from “reasonable doubt” to beyond All Doubt?

    All goal should be to reduce wrongful convictions; but in my opinion it should bring th eprocess to a halt because of the possibility.

    And yes, I am a Republican: but I can not remember the last time I was scared of anything.

      • If you did it for executions -it would eventuallu spread to the whole system. There is always the possibility of actual innocence in the conviction process.

        The solution is to broaden the scope of review in the appellate process beyond “legal error”.

  3. 1. I’m not anonymous to you, Mark. We’ve emailed before. I just prefer to keep my name off of the world wide web. So if you don’t want to post my comment because of that, so be it.

    2. There is a difference between actual innocence and the presumption of innocence. Every defendant is PRESUMED innocent until proven guilty beyond a reasonable doubt. But let’s step back from the courtroom… is every single person charged with a crime ACTUALLY innocent? I’m going to go out on a limb and say no. I acknowledge that there are some that may be wrongly accused. By I also feel that some are rightly accused. But in a court of law, they are ALL presumed innocent until the State meets it’s burden.

    3. Because I believe that there have been and will probably continue to be some wrongly accused, I do not support the death penalty. Might a particular case and some compelling evidence change my opinion someday? I don’t know… I would certainly need proof beyond ALL doubt, and I don’t like the idea of taking another’s life regardless. Have you ever read A Death in Belmont by Sebastian Junger? I recommend it.

    4. All I meant by my comment was to speculate what the Motion meant by Judge Fine presuming the defendant innocent as grounds for recusal, because I’d like to think that it meant something other than the presumption of innocence provided by the Constitution. I meant nothing more by it, certainly not a glimpse on all prosecutors warped notions of constitutional rights and justice or whatever. But I noticed how quickly people jumped to that conclusion in the comments.

  4. “But if it did: what would be wrong with that?”

    Um. The fact that absolute certainty isn’t applicable to anything in this tier of existence?

  5. Whats wrong with potentially stopping the whole system because reasonable doubt isn’t beyond all doubt? Besides the obvious, that work stoppage means we are unemployed? It seems you are cutting the nose off to spite the face. Do innocent people get sent to death row? Yes. Have we greatly reduced this due to advances in Science as well as advances in lawyering to attack Junk science? I think we have.

    In the past, we have abused the Death sentence in Harris County. As much as I dislike Pat Lykos-she seems to be taking greater care as to which cases are brought forward as DP cases.

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