Published on Friday, March 12, 2010 by Huffington Post
Attorneys for the defendant in the case, John Edward Green Jr., who is charged with killing a woman in a robbery and shooting her sister, praised the decision as "the beginning of the end of the death penalty in
Under fire from politicians and the media, which highlighted the magistrate's unusual background --his history of drug use, his liberalism, his tattoos--Judge Fine backed off on Tuesday, rescinding his decision and scheduling a hearing. But the legal and ethical issues are hardly settled. Acting on a pre-trial defense motion, Judge Fine asserted that Texas's death penalty is unconstitutional not because it's cruel and unusual, the province of the Eighth Amendment, but because the state's judicial institutions fail to guarantee criminal defendants due process under law, as required by the Fourteenth Amendment.
A growing body of evidence suggests that Judge Fine is correct, that
Prompted by a string of scandals  involving judicially appointed roustabouts who slept through their clients' trials or showed up to court drunk, Texas passed the Fair Defense Act in 2001, increasing state funding for indigent defense. Yet in
Judicial review is supposed to guard against miscarriages of justice at trial, but
Texas's prosecutorial judiciary, more than the state's elevated crime rates or the harshness of its juries, keeps the 6:00 pm shift at The Walls in
The numbers make
Worse, Judge Fine contends that the state is failing to exonerate and is thus "executing innocent persons"--a fear borne out by extensive posthumous reviews of at least five capital cases. Most famously, in 2004 Governor Perry approved the execution of Cameron Todd Willingham  (one of my research subjects), despite overwhelming evidence that his conviction for homicide by arson was based on discredited fire science. Last fall, the State Forensic Science Commission was moving toward clearing Willingham, albeit after his death, but before hearings could be held, Perry replaced the commissioners, thereby quashing the inquiry.
Advocates of judicial restraint argue that
© 2010 Huffington Post
Robert Perkinson is the author of the forthcoming book, Texas Tough: The Rise of a Prison Empire (Metropolitan Books/Henry Holt, 2008).
URL to article: http://www.commondreams.org/view/2010/03/12-4
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs