Friday, March 05, 2010

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”. 


dudleysharp said...

Judge Fine was injudicious and irresponsible.
Dudley Sharp, contact info below

On March 4th, District Court Judge Fine (Houston, Harris County, Texas) found the death penalty unconstitutional based upon innocents executed. It appears that he blindly accepted defense attorney claims without fact checking them.

Judge Fine states with " . . . more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed." (1) The 200 number is all but irrelevant to death row, but does represents an inaccurate counting of DNA freed cases, as per the Innocence Project, for the entire prison population, not just death row. I suspect the judge received that inaccurate number from defense counsel.

The 200 number is nearly irrelevant to death row. 9 inmates have been released from death row because of DNA exclusion.

It appears neither Judge Fine nor defense counsel fact checked.

There is no proof of an innocent executed in the US, at least since 1900.

In the modern death penalty era, possibly, 25 inmates have been released from death row based upon actual innocence. (2)

25 not 200.

That is about 0.3% of those sentenced to death since 1973. All were freed.

Likely, there is not a more accurate sanction when it comes to convicting the actually guilty and freeing the actually innocent.

Judge Fine's decision appears similar to the one made by New York Federal District Court Judge Jed Rakoff in the Quinones case, whereby Rakoff found the federal death penalty statute unconstitutional. I stated, then, that it was an idiotic decision which would quickly be overturned. It was. At least Rakoff fact checked.

I am sure Judge Fine is aware that the death penalty is included in both the 5th and 14th Amendments of the US Constitution and that both Texas State courts as well as the US Supreme Court have always upheld the death penalty as constitutional (3), regardless of challenge. In other words, this is simply a story of a judge going ego wild, wanting to put a personal stamp on a decision, without any care for the law or the constitution.

Judge Fine can speculate all he wants about the innocents that may have been executed. He should, however, look at the facts and the law, before rendering a decision.

Judge Fine also failed to notice that innocents are more protected with the death penalty than with the lesser sanction of life without parole. Judge Fine failed to notice a great deal. Or did he?

"The Death Penalty: More Protection for Innocents"

The 130 (now 139) death row "innocents" scam

"The Innocent Executed: Deception & Death Penalty Opponents"

Sincerely, Dudley Sharp
e-mail, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

(1) "Judge declares death penalty unconstitutional: Maverick jurist grants pretrial motion in Houston murder case", HOUSTON CHRONICLE, March 5, 2010

(2) Analysis upon request

(3) Some wrongly describe Furman v Georgia as finding the death penalty unconstitutional. It did not.

T. F. Stern said...

Dudleysharp, While I appreciate your interest in leaving a comment and the information on capital punishment; my purpose in writing the article had to do with the judges inability to uphold his sworn duty to follow the law.

As a matter of good manners and general respect, comments, as a rule should not exceed the length of the original author's post, such lengthy essays should be reserved for your own blogsite or other venue. Some might consider your comment spam.

gedda fan said...

I'm confused:- help! - not being a lawyer, but knowing something of constitutional law and our founding fathers, I bring to your attention the pamphlet
" Citizens Rule Book - subtitled a jury handbook- which emphasizes the checks and balances aspect of 'jury of peers' as a chance for citizens to "nullify" bad law by their findings- the pamphlet , from Whiten publishers, 1001 south st phoenix AZ. 85004 edited by Webster Adams, cites among others Patrick Henry, John jay- " The jury has the right to judge both the law and the fact in controversy Samuel Chase- "The jury has the right to determine both the law and the facts" Oliver Wendell Holmes- "The jury has the power to bring a verdict in the teeth[sic] of both law and fact", Harlan Stone - "The Law itself is on trial as much as the cause which is to be decided"
all laws which are repugnant to the constitution are null and void" 'marbury vs. madison'5 US (2 cranch) 137,174,176, (1803)
the Minneapolis Star Tribune 11/30/1984- "At the time of the adoption of the Constitution, the jury's role as defense against political oppression was 'unquestioned' in American jurisprudence.This nation survived until the 1850's, when prosecution under the Fugitive slave Act were largely unsuccessful because juries refused to convict"......
"As originally conceived juries were to be a kind of safety valve,a way to soften the bureaucratic rigidity of the judicial system by introducing the common sense of the community." Juries could find against bad law as well as guilt or innocence. It would seem your leading your peers in leaving the court , all being unable to carry out your oath 'to interpret the law as written ' may have sacrificed a higher obligation you have , to uphold the constitution of the United States and God's law, from which all just law flows.
When did all this change? Under who's authority ?

Your comments , however, make me better understand how a Kansas jury could so quickly convict the righteous hero Scott Roeder, who stopped the baby killer Tiller in a most effective way.
I look to your response-

David said...

*heh* Sounds like a judge who needs to be brought before the court of Dr. Tarr and Mr Fether.

Matt said...

I respect the right of Texas to have a set of laws which I find to be immoral and dangerous. But Texas law must defer to the U.S. Constitution.

Jim said...

I agree with you, T.F.
Also a judge is to decide if a law and the procedures are constituional. I think this has pretty well been decided in our state, he should follow precedent.
How about the dumb judge up north who put the lady in jail? She was on jury duty and couldn't find a way to take care of the kids that one day. So she brought them.
My bigger question is, who watched the kids while she was in jail. I think he should be in jail with her. He has a bad record, mostly against women.
I've been missing Lucy on her blog. Tell her hello for me. I scanned your blog for any bad news and from all that I could tell she is alive and well.
But she left us without saying goodbye!

T. F. Stern said...

Gedda fan

Your comments are on target, at least to my point of view. Jurors have more room to express a variance in the written law than do judges for that matter; however, when asked a very specific question regarding how you would deal with such poorly written laws, an honest answer is still required. The judge is restrained from legislating from the bench; that is not part of the job. If a judge is uncomfortable with a specific case he may remove himself for any number of reasons, to include personal feelings which might sway his judgment.

Thanks for the nuts and bolts detailed information regarding jurors. Many folks are unaware of this and may find it helpful.

T. F. Stern said...


Texas has plenty of laws, that’s for sure; as for them being dangerous and immoral we might have to say we agree to disagree. Those which have been found to be unconstitutional are removed, as in any other state; not sure where you are going with that line. Thanks for extending the tread of comments.

T. F. Stern said...


Tar and feathers may be a bit strong; just show him the door. Fine was one of the (D) judges who was elected that last go around as voters showed their disgust for the way the (R) party in general was mucking up things. The straight (D) pull of the handle, or as is now the case, push of the button on a computer screen, tossed out many qualified (R) judges and replaced them with less than qualified (D) judges. This is the price we pay for having (D)’s and (R)’s and an uneducated citizenry willing to vote for hope and change at any cost without knowing what that hope and change involves.


…and I should note that these responses may appear out of order; my having addressed those which hit my attention first rather than when they were recorded.

That says a lot about the reasoning power of some judges; lock the kids up in juvy hall, toss the dog in the pound, haul the car off and get on with this case.

Lucy’s off doing her Ham radio thing along with her church callings. I don’t see her blogging much of late; but she lives on Facebook.

Thanks to both of you for stopping by with a comment.

MK said...

Judges are not paid for their opinions, doesn't mean they shouldn't have any, but their job is not to wiffle-waffle around with what they think should happen, but to interpret the law that's given to them. Which is something these leftie judges have tremendous difficulty doing.

Starsplash said...

I don't know. It is not unprecedented for a judge to declare laws unconstitutional. I believe that judges are actually supposed to hold the governments feet to the fire to make sure that the government does not purposely or mistakenly misinterpret the Constitution. The judges are the buffers.

I really believe that too many people hear or think they hear voices in their head they ascribe as real. Blue collar wise- they are nuts. Too many unfounded unproven rumors are spread by these nuts and too many of these nuts have worked there way into positions of power and authority in our government and we are suffering from these nouget nuts making accusations and judgements.

Sorry.......I am P.O. at those false prophet nuts.