Activist Judge Should Step Down

There’s a story out of Houston this morning by Carl Willis which starts off, “A Harris County judge declared the death penalty unconstitutional in a ruling during a pretrial hearing Thursday, KPRC Local 2 reported.” That’s not what Texas state law says, not what the appellate courts have upheld or how the Supreme Court has ruled; but Judge Kevin Fine made the ruling anyway.

I wanted to include a picture of Judge Kevin Fine; but my dictionary is an older addition and has yet to have the definition of Activist Judge included. If I had time I’d go through my collection of Mad Magazines, he’s got to be in one of those.

I’m not a lawyer so I’ll let others duke it out over the short comings of such an inept ruling by a sitting criminal court judge; however, there’s a great deal of similarity to being a juror.

I’ve been called to serve in that capacity on more than one occasion. Jurors, whether they are impaneled and actually sit through the entire process or released from their civic responsibility at one stage or another; are put under oath to follow the law as it is written in order to be fair both to the state and the accused.

One time my civic duty lottery ticket came up with 72 other prospective jurors; a chance to sit in on a rather nasty criminal case, aggravated sexual assault of a child. The introductory evidence supplied during the weeding out process included several points of law which had to be proven beyond a reasonable doubt in order for a finding of guilty to be established; sexual assault of a child, a weapon was used and that the incident happened within the jurisdiction of the court. The list was edited to save space.

Each lawyer asked plenty of questions as they went down the list of potential jurors to see how they might react during the actual trial; scratching those who would be clearly detrimental to their cause, either for the state or the defendant.

One question was asked which violated my sense of right and wrong, even though state law clearly included the parameters, I’ll paraphrase since it was a long time ago.

“If, upon finding the defendant guilty, you as a juror sitting in the punishment phase of this trial, were asked to consider a range of punishment to include everything from probation to life in prison; could you do that?”

Bear in mind the most basic elements which had to be proven beyond a reasonable doubt; that the defendant sexually assaulted a child and that a weapon was used during the commission of that crime.

I raised my hand, having considered the question as ludicrous, even though state law was written in such a way as to provide both extremes. In my mind the law had been written so badly as to include probation for such a heinous crime; no, I could not uphold the law in that case.

The prosecutor asked me to explain my reasons for not being able to follow such a stipulation of the law to the judge and in front of the entire box of potential jurors. Once the explanation had been given he asked if anyone else felt the same way. I’d never seen an entire jury dismissed as each one of them raised their hands, many of them shaking their heads in disbelief that probation could ever be considered with the knowledge that such a crime had been committed.

The only reason I brought that whole jury duty issue to light was because I’d raised my hand to the square and sworn, before God and everyone present, to follow the law as it was written. By so doing I was honor bound to remove myself from consideration by letting both the prosecutor and defense team mark me off the list, rather than proceed under a ‘flag of false colors’.

You might ask, “What’s a flag of false colors?” Think of when you watched an old pirate movie, where the bad guys flew the Union Jack right up until they were within firing range of their target. Some rope monkey scurried up, removed the Union Jack and replaced it with the Skull and Crossbones flag. “Oh no, Pirates”; but everyone thought they were okay until it was too late.

That’s your history lesson for today; tomorrow topic, Thermo Nuclear Dynamics and how to Keep Radical Islamic Terrorists from Smuggling an Atomic Bomb into a City Near You. I may need a little more time for that one as each of you will be required to pass through a full body scan.

I know lots of folks who would have kept quiet, let their personal feelings remain hidden, waited for a finding of guilty and hammered the rotten pervert to the fullest extent the law permitted. That kind of thing happens; but those who do so are ignoring their oath to honestly consider the other end of the spectrum which included probation, that’s a flag of false colors.

Judge Kevin Fine raised his hand to the square; he promised to uphold the laws as they have been written. He’s honor bound to remove himself from that position, not because he’s been dishonest about his feelings regarding a particular point of law, the death penalty, which he’s made perfectly clear; but because he, perhaps better than anyone, should understand the duties and responsibilities of following the laws as they have been written, not as he would like to see them written.

Judge Kevin Fine, in all likelihood, had this same opinion before he ran for office, before he asked his fellow citizens to elect him to that position. If that’s the case he ran under false colors and should be concerned for his eternal soul for having lied before God and his fellow citizens when he took his oath of office. In either case, an honorable man would step aside for the benefit of society and the laws which govern that society.

Edited: March 5, 2010

This article has been cross posted to The Moral Liberal , a publication whose banner reads, “Defending The Judeo-Christian Ethic, Limited Government, & The American Constitution”.