STATE OF TEXAS

v.

JOHN EDWARD GREEN, JR.

NO. 1170853

§ IN 17ih DISTRICT COURT§§§§ HARRIS COUNTY, TEXAS

MOTION TO RECUSE

THE STATE OF TEXAS, by and through the District Attorney of Harris County,

Texas, asks Judge Kevin Fine to recuse himself in this death penalty case because Judge

Fine has clearly articulated beliefs and opinions that reveal his partiality and bias against

both the death penalty statute and the State's application of that statute in this case. Judge

Fine's refusal to follow well-settled case law has resulted in the delay of justice for the

victims and the victims' family in this case. This motion is based on the fact that:

• Judge Fine stated in two pretrial conferences, one of which was held on or aboutJanuary 13, 2010, that if there were a judge on the bench in the State of Texas whowould declare the death penalty unconstitutional, it was he.

• On March 4, 2010, Judge Fine took "judicial notice" on his own motion that morethan 200 inmates from the country's death rows "have been exonerated."

• Judge Fine also stated on that same date that "we have overwhelming evidence thatwe are, in fact, executing innocent persons."

• Judge Fine has continued to require the parties to participate in an April 27, 2010evidentiary hearing to determine whether an actually innocent capital murderdefendant has been executed in the state of Texas despite the fact that such an issueis completely irrelevant to whether Article 37.071 is constitutionpst it a~~othis defendant. l L -..Ii.. U

oren JacksonDiolricl Clerk

APR 01 2010

•

• In making his rulings on March 4 and 5, Judge Fine asserted his consideration ofextrajudicial information not related to John Green, including the Illinois moratoriumofthe death penalty and the Innocence Project.

• Judge Fine has consistently framed the issue from a personal perspective when hestated that he is not willing to stand by when an innocent family member, friend oracquaintance is executed.

I.

Relevant Facts

On March 4, 2010, the Honorable Kevin Fine, presiding judge of the 177th District

Court in Harris County, Texas, conducted a pretrial hearing on several motions filed by the

defense in this case. Judge Fine had twice previously stated that if there were any judge in

Texas who would be willing to hold the death penalty unconstitutional, that he was that

judge (Appendix G). One of the motions presented by the defense at that hearing was a

boilerplate motion to hold the death penalty sentencing statute, Article 37.071 1 of the Code

of Criminal Procedure, unconstitutional (Appendix B). Among the allegations in the

defense motion was the claim that more than 100 death row inmates had been exonerated.

At the hearing, Judge Fine stated:

Just for the record, my understanding - and I'll take judicial notice thatthere is an error - well, actually not an error, but on Page 2 of the motion,Paragraph 4, "More than 100 inmates from the country's death rows havebeen exonerated." That number has reached over 200 at this point.e]The Court also will note and take notice of the fact that the greater majority

I There was a typographical error in the motion, which referred to "Article 37.01." (Appendix B). But Article 37.01merely provides for the statutory defmition ofa "verdict." TEX. CODE CRIM. PROC. art. 37.01 (Vernon 2009). It isclear from the context of the motion that the defense was referring to Article 37.071.

2 Even by the most generous accounts through the Innocence Project website or the Death Penalty InformationCenter website, 200 people off death row is exaggerated. Additionally, the State contends that the term"exonerated" does not mean "actually innocent," so Judge Fine's number is irrelevant in the context of a possiblyinnocent person being executed

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of those exonerated have been cases where there was DNA evidence leftto test to show the defendant's innocence and we can't - we cannotconceivably revisit someone's innocence absent some form of evidence suchas DNA evidence. That calls into question even more so the execution ofinnocent people.

(RR. 3/4/2010 Hearing - 26-27) (emphasis added). Judge Fine asked defense

counsel for clarification on one issue and then proceeded to opine:

The Court notes that in Paragraph 3 of the motion Defense states, "It issettled law that the Fifth Amendment's broad guarantee of 'due process' mustbe interpreted in light of evolving standards of fairness and ordered liberty."Then you go on to discuss the exoneration of innocent individuals fromAmerica's death rows, which again I will take judicial notice that there havebeen more than 200 such individuals exonerated. However, thoseexonerations have been by and large limited to cases where there hasbeen DNA evidence which leaves those accused of capital offense wherethere is no DNA offense where they may, in fact, be innocent no redress.

So under this argument, I suppose as the gatekeeper of the law, I've gotto decide what our evolving standards of fairness and ordered liberty are. If ­if they are such that society believes it to be okay to execute innocent people,whether that be one or a thousand so that a state, specifically the State ofTexas, can have a death penalty so that those that might be deserving of thepenalty of death can actually be put to death, whether or not that - that trade­off would meet our current standards of fairness and ordered liberty. I'vetaken no polls. I haven't seen any - I've never read any articles, whether in anewspaper, legal journal, wherein people have been asked the question: Is itokay to execute innocent people so that we as a society can have a deathpenalty to execute guilty?

From my standpoint, I am not willing to have my friends or afamily member or even an acquaintance who is innocent - I'm notwilling to have -let them be the sacrificial lamb to be executed so that wecan have a death penalty and execute those actually deserving of thedeath penalty. And I believe that because of the efforts of the InnocenceProject and Innocence Projects around the country and the attentiongiven to the moratorium on executions in the state of Illinois because ofthis very fact - and these are facts, not assumptions, that we do, in fact,have innocent people on death row that were to be executed who werefound to be innocent and that more than likely statistically there are atleast an equal number of inmates sitting on death row somewhere in this

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country that do not have the DNA evidence available to demonstratetheir innocence. And I think that our country has become more aware, ourcitizenry has become more aware of the fact that there is a more than a chanceofexecuting innocent people.

I don't think anyone, if asked, if they were willing to allow one oftheir family members, friends or acquaintance or co-workers to be thesacrificial lamb would agree that they were willing to do that. I wouldimagine even if I asked the prosecutors individually personally if they wouldbe willing to do that, their answers would probably be the same as mine,although I don't pretend to speak for them.

With no other guidance from a higher court other than the guidancecharging the trial courts with the duty of being gatekeepers, this is probablythe most difficult decision I've had to make in my limited time on the Bench.But I am not prepared to say that our society, that our citizenry is willing to letinnocent people die so that the State ofTexas can have a death penalty.

Acting as gatekeeper and strictly as gatekeeper and having to make thatdecision, that's what I so find and I'm going to grant the defendant's motionand we'll let a higher court ofgreater wisdom make the ultimate decision.Hopefully that being the Supreme Court of the United States. So Motion toHold That Texas Code of Criminal Procedure Article 37.01 [sic]Unconstitutional is granted.

(RR. 3/4/2010 Hearing - 28-31) (emphasis added). Later that day, Judge Fine attempted to

claritY his ruling. He stated:

Because there are no guiding case law, I'm only guided by - other than lawthat requires - case law, United States Supreme Court case law that requiresthat I play the role of gatekeeper when it comes to what our society deems isfair and decent and as gatekeeper and my only guiding principle being thevery fact that we have had over 200 innocent people exonerated fromAmerica's death rows can only lead to the conclusion that we have, infact, executed innocent people.

(RR. 3/4/2010 Hearing - 61) (emphasis added). Finally, Judge Fine stated that he believed

that no one would be willing to allow one of their loved ones, associates, friends, or co-

workers to "suffer the death penalty" or to "be one of the innocent ones that suffers the

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death penalty so that the State ofTexas can have a death penalty," and he explicitly referred

to "the media attention on the death penalty, the recent moratorium on the death penalty a

couple of years out of Illinois and our changing ideas of fairness and decency" to rule that

"in fact, the statute is unconstitutional." (RR. 3/4/2010 Hearing - 61).

Judge Fine reconvened the hearing the following day, March 5, 2010. He stated that

his holding was based on the "due process claim that 37.071 has resulted in the execution of

innocent people and/or has the potential to result in the execution of innocent people."

Judge Fine continued:

I repeat again that the vast majority of those cases involve DNAevidence. What of those cases that do not involve DNA evidence? To myknowledge, there has been only one retrial of a deceased individual who hasactually been executed. That trial took place in Travis County in JudgeCharlie Baird's court wherein it was found that the deceased was, in fact,innocent and thereafter executed by the State ofTexas.el

Whether it's one person or 10,000, I don't believe society is willing to,what is known as in literature, to remain under the cloak of the willingsuspension of disbelief. That's what we must engage in if we're going tosay we've never executed an innocent person in light of what theInnocence Project has uncovered and in light of what we now know ofthe value of eyewitness identification and in light of the fact that there arenumerous cases, whether a death case or not, where there is no DNAevidence to go back and test in order to exonerate the individual.

This current awareness in our society necessitates the question ofwhether we as a society, knowing that we execute innocent persons, desire tocontinue to ignore that reality.

Now, I say this with a bit of caution. It is perhaps easy to ignore thatreality when the individual sitting at the defense counsel comes from lower

3 The State is unaware of any such proceeding; however, Judge Charlie Baird did conduct a proceeding whichpurported to detennine that a man who passed away in prison was innocent. That man had been convicted of sexualassault and not capital murder, and he was not executed by the State. See Steven Kreytak, Judge Issues FormalFindings in Cole Case, April 7, 2009, http://www.statesman.com/blogs/contentlshared-gen/blogs/austin/courtslentriesl 20091 04/07/baird_issues_fonnaUindingsJhtml?cxntfid~blogs_austin_legal.

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income neighborhoods, is a minority, or has a criminal history. I know thatseveral feel that, well, ifthey're not guilty ofthe capital murder, they're guiltyof something so it's okay. I don't think society is of that frame of mind anylonger.

Our Constitution affords protections to all citizens, not just those sittingat counsel table accused of a crime, and I shudder to think and I do notbelieve our society takes a blind eye to themselves as individuals and thoseclose to them and, therefore, condone the execution of innocent persons fromlow income, predominantly minority citizenry. I don't think society is willingto do that anymore. I don't think society is willing to engage in the willingsuspension of disbelief that we do not and could never execute an innocentperson.

And because the Constitution protects us all, the question to be askedand answered in resolving this issue is whether we as a society - we have tolook at ourselves. Are we willing to allow our sons, our daughters, ourbrothers, our sisters, our friends to be the sacrificial lambs should theybe wrongly accused of a capital offense and then be executed?

I don't think there is - there may be some people out there that wouldsay they're willing to let their son die so that the State of Texas can have adeath penalty, but I think those persons would be few and far between.

I find that the greater majority of our society would not be so willing toallow the execution of their friends and family or to be the sacrificial lambs sothat the State ofTexas can have a death penalty. I think that the changing andevolving standards of fairness and ordered liberty are such that in light of thefact that we have overwhelming evidence that we are, in fact, executinginnocent persons, I don't believe that our evolving standards are at the pointwhere we're willing to sacrifice even those that have criminal records andeven those that come from the Fifth Ward or the Ninth Ward of NewOrleans[4] or the Fourth Ward or the Third Ward ofHouston.

I think society has begun to take a look within itself, and I think theproper question to be asked is just that. Are we willing to let our own be thesacrificial lambs? I don't think society is willing to do that.

(RR. 3/5/2010 Hearing - 8-11) (emphasis added). During the following week, on March 9,

2010, Judge Fine held a third hearing on the record regarding the same issue. Judge Fine

4 Prior to this March 5, 2010 statement, Judge Fine was aware through testimony at hearings that the defendant in thiscase, John Edward Green, was from the Ninth Ward ofNew Orleans. (Appendix G).

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rescinded his written order, set the case for an evidentiary hearing to be held on April 27,

20 I0, and ordered the parties to file briefs on the issues. In explaining his position, Judge

Fine stated: "I want to make that clear again. I'm not saying that the process of the selection

of death eligible cases is unconstitutional. What - what I'm leaning toward and what I've

previously ruled and now am setting aside is that society's ever evolving standards of

decency and fairness have changed such that - because we know, and we would be burying

our heads in the sand if we said we didn't, engaging in what I previously tagged as the

willing suspension of disbelief, in literature, that we execute innocent people." (RR.

3/9/2010 Hearing - 9).

On March 26, 2010, Judge Fine apparently became concerned that he might be

recused in this case, so he called another hearing in this case wherein he observed:

...my feeling is there's at least one document I feel like the State isgoing to file that's not listed in 28.01 that could be filed at any time, and thatis maybe supposition on my part, but I anticipate or would not be surprised ifthere was a Motion to Recuse me from the case. The case gets sent to MikeAnderson and then, of course, Anderson rules the way he rules and you guysare assigned a new court.

I think that's a strong possibility. That's why I want it made perfectlyclear for this record that I have no - and I have said before, I've got nothing ­no personal interest in the death penalty itself. I think it's constitutional. Ibelieve the death penalty to be constitutional. My question is - only goes tothe motion filed by the Defense, and that's it. That's the only issue. So itwould be up to the Defense to prove that we have, in fact, executed aninnocent person.

The law is clear that - and I will attempt to quote Herrera - "The law isclear that although it is a violation of the due process clause to execute aninnocent person, it is not a violation of due process clause for someone to besentenced to death based simply on a risk or the risk that a defendant mighttheoretically be innocent and executed."

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And then the case goes on to say, "The defendant in this case does notclaim to be innocent; therefore, has no claim at all."

So that's why I'm narrowing the issue. And I think I've said this before- correct me if I'm wrong - the narrow issue is has the State of Texasexecuted an innocent person; and, if so, does that violate - does that, in effect,create a violation of the due process clause simply by virtue of the statute.Does that make sense?

[Defense Counsel]: It not only makes sense, Judge, I still maintainthat's true; and I want a hearing on it.

The Court: All right. And as long as I'm the Judge, there will be ahearing.

(RR. 3/26/2010 Hearing - 11-12) (emphasis added). Currently, briefs are scheduled to be

submitted to the Court on April 12,2010 and an evidentiary hearing is scheduled for April

27,2010.

II.

Argument andAuthorities

Both the Texas and the United States Constitutions guarantee a party an impartial

and disinterested tribunal. Metzger v. Sebek, 892 S.W.2d 20, 37-38 (Tex. App.-Houston

[1st Dist.] 1994, writ denied). In both criminal and civil cases, motions to recuse a trial

judge are governed by rules 18a and 18b of the Texas Rules of Civil Procedure. Arnold v.

State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993).

At least ten days before the date set for trial or another hearing, any party may file a

motion stating grounds why the judge before whom the case is pending should not sit in the

case. TEx. R. CIv. P. 18a. This right extends to the State of Texas in criminal cases.

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Arnold, 853 S.W.2d at 544. And Texas law is clear that, when faced with a motion to

recuse, a judge has only two options: grant the motion to recuse, or refer the motion to

another judge for a ruling. See TEx. R. CIV. P. 18a(c); In re Norman, 191 S.W.3d 858, 860­

62 (Tex. App.-Houston [14th Dist.] 2006, orig. proceeding).

A judge shall be recused if, among other reasons, the judge's "impartiality might

reasonably be questioned" or the judge "has a personal bias or prejudice concerning the

subject matter or a party." TEx. R. CIV. P. 18b(2). As the Court of Criminal Appeals has

explained, "A trial judge ruling on a motion alleging bias as a ground for disqualification

must decide whether the movant has provided facts sufficient to establish that a reasonable

man, knowing all the circumstances involved, would harbor doubts as to the impartiality of

the trial judge." Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992) (citations

omitted); see also Wesbrookv. State, 29 S.W.3d 103,121 (Tex. Crim. App. 2000); Rosas v.

State, 76 S.W.3d 771, 775 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (applying the

reasonable person/due process standard).

Partiality, bias, and prejudice are antithetical to due process, which requires that a

judge be neutral and detached. Abdygapparova v. State, 243 S.W.3d 191,208 (Tex. App.­

San Antonio 2008, pet. refd); Gagnon v. Scarpelli, 411 U.S. 778, 786 (1983). "Partiality"

refers to favoritism that is "wrongful or inappropriate." Litelcy v. United States, 510 U.S.

540, 552 (1994). "Bias" and "prejudice" have been construed to "connote a favorable or

unfavorable disposition or opinion that is somehow wrongful or inappropriate, either

because it is undeserved ... or because it is excessive in degree." Id., 510 U.S. at 552. The

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inquiry into whether recusal is appropriate centers on objective criteria using a "reasonable

person" standard. Abdygapparova, 243 S.W.3d at 198.

"To require recusal, a judge's bias must be extrajudicial and not based upon in-court

rulings." Grider v. Boston Co., 773 S.W.2d 338, 346 (Tex. App.-Dallas 1989, writ denied)

(citing United States v. Grinnell Corp., 384 U.S. 563,583 (1966». Opinions formed by the

judge on the basis of facts introduced or events occurring during proceedings do not

constitute a basis for a recusal motion unless they display a deep-seated favoritism or

antagonism that would make fair judgment impossible. Ludlow v. DeBerry, 959 S.W.2d

265, 271 (Tex. App.-Houston [14th Dist.] 1997, no pet.) (citing Liteky v. United States,

510 U.S. 540 (1994»; see also Kniatt v. State, 239 S.W.3d 910, 920 (Tex. App.-Waco

2007, no pet.).

A movant need not prove that a judge is actually partial or biased to merit recusal;

rather, it is the "appearance" that matters. Liteky, 510 U.S. at 558. Indeed, due process

requires recusal when "there is a serious risk of actual bias - based on objective and

reasonable perceptions." Caperton v. A.T. Massey Coal Co. Inc., 129 S.Ct. 2252, 2263

(2009).

A trial court denies a defendant due process when it arbitrarily, without any evidence

before it, refuses to consider a portion of the permissible range of punishment. Ex parte

Brown, 158 S.W.3d 449,456 (Tex. Crim. App. 2005); McClenan v. State, 661 S.W.2d 108,

110 (Tex. Crim. App. 1983), overruled on other grounds by De Leon v. Aguilar, 127

S.W.3d 1, 5-6 (Tex. Crim. App. 2004); Cole v. State, 931 S.W.2d 578, 579-80 (Tex. App.­

Dallas 1995, pet. refd). For example, one court of appeals held that a trial judge should

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have been recused when, in response to questioning regarding whether the judge would

accept a plea bargain of deferred adjudication, the judge said, "No, and if the jury gives her

probation, I'll give her jail time." Norton v. State, 755 S.W.2d 522, 523-24 (Tex. App.­

Houston [1st Dist.] 1988), pet. rej'd, 771 S.W.2d 560 (Tex. Crim. App. 1989). Another

court of appeals held that a trial court denied the defendant due process by failing to

consider the entire punishment range when it told the defendant at a deferred adjudication

hearing that it would impose a 20-year sentence if probation was revoked and then imposed

that sentence once probation was revoked. Jefferson v. State, 803 S.W.2d 470, 471-73 (Tex.

App.-Dallas 1991, pet. refd). In the present case, Judge Fine has demonstrated his

antagonism toward the full punishment range, specifically the range of punishment that

includes the death penalty.

Unlike criminal defendants, the State is not entitled to due process. See Collier v.

Poe, 732 S.W.2d 332, 344 (Tex. Crim. App. 1987). Nevertheless, the legislature has made

clear that it "shall be the primary duty of all prosecuting attorneys...not to convict, but to

see that justice is done." TEx. CODE CRIM. PROc. art. 2.01 (Vernon 2009). And in that

capacity, "the Government, as a litigant, has a legitimate interest in seeing that cases in

which it believes a conviction is warranted are tried before a tribunal which the Constitution

regards as most likely to produce a fair result." Singer v. United States, 380 U.S. 24, 36

(1965); Ex ReI. Turner v. McDonald, 676 S.W.2d 371, 374 (Tex. Crim. App. 1984).

Therefore, the State has been provided with mechanisms to assure a fair trial. "This

recognition of the Government's interest as a litigant has an analogy in...rules, which

permit the Government to challenge jurors peremptorily." !d. Rules regarding recusal of a

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judge for partiality, bias, or prejudice fall into this same category of mechanisms to assure a

fair trial.

Jury selection was scheduled to begin in this case on March 31, 2010. Judge Fine's

actions have left in doubt the State's ability to proceed with the prosecution of a death

penalty case, in which a woman was shot and killed in front of her family (Appendix H).

Family and friends have hoped and expected that justice would be served by the defendant

being put to trial and, if convicted, assessed the appropriate punishment by a jury. Judge

Fine's desire to litigate the propriety of the imposition of the death penalty in other cases is

wrong and improper. Judge Fine's insistence upon such a hearing concerning the validity of

convictions in other cases reveals a deep-seated favoritism or antagonism that would make

fair judgment impossible in this Defendant's case.

In the present case, unless Judge Fine is recused from the case, the State of Texas,

the victim, and the victim's family will be deprived of a fair trial in violation of Texas Rule

of Civil Procedure l8b for the following reasons:

A. Judge Fine's impartiality might reasonably be questioned.

The inquiry the court must make under Rule l8b(2)(a) is whether a reasonable

member of the public, knowing all the circumstances involved, would harbor doubts as to

the impartiality of Judge Fine with respect to the death penalty. TEx. R. CIY. P. 18b(2)(a);

Kemp, 846 S.W.2d at 305. And Judge Fine has repeatedly displayed his prejudice against

the death penalty. See Brian Rogers, Judge Declares Death Penalty Unconstitutional,

March 5, 2010, http://www.chron.com/disp/story.mpl/metropolitan/6897252.htrnl; Brian

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Rogers, Judge Clarifies Ruling Criticizing Death Penalty, March 5, 2010,

http://www.chron.com/disp/story.mpl/metropolitan/6899748.htrnl.

When Judge Fine became aware that the defense filed motions to declare aspects of

the Texas death penalty statute unconstitutional, he alerted defense counsel of his

willingness to consider such action. Judge Fine specifically inquired whether any of the

motions were novel or if one or more implicated areas ofthe law that were in a state of flux.

Judge Fine told the parties that if there were a judge on the bench in Texas who was willing

to hold the death penalty unconstitutional, Judge Fine was that judge (Appendix G). On

another occasion, Judge Fine stated that he was not going to be the judge to let the issue of

the theoretical execution ofan innocent person go by on his watch (Appendix G).

During the pretrial hearing on March 4, 2010, Judge Fine addressed many of the

pretrial motions, including the defendant's motion to declare Article 37.071

unconstitutional. Judge Fine sua sponte took 'Judicial notice" that more than 200 inmates

from the country's death rows "have been exonerated," but judicial notice is not the

equivalent of personal knowledge, and judicial notice may not be taken of matters not

known generally. See Watkins v. State, 245 S.W.3d 444, 456 (Tex. Crim. App. 2008)

(holding that article in which statistics and data were used to question racial neutrality

achieved by jury empanelment methods was not shown to have been indisputable as to

warrant judicial notice); see also Emerson v. State, 880 S.W.2d 759, 774 (Tex. Crim. App.

1994) (Baird, J., dissenting) ('Judicial notice is not the equivalent of personal knowledge

and judicial notice may not be taken of matters not known generally known...We have held

where a court is authorized to take judicial cognizance of matters, it is held that this power

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must be exercised with caution, and care must be taken that the requisite notoriety exists,

and every reasonable doubt upon the subject should be promptly resolved in the negative.")

In Paredes v. State, 129 S.W.3d 530,532 (Tex. Crim. App. 2004), the defendant was

convicted of capital murder and sentenced to death. On appeal, the appellant claimed that

the death penalty statute was unconstitutional because "the risk of executing innocent

persons and the long delays in uncovering evidence of innocence, often only possible with

the benefit of newly developed scientific techniques such as DNA testing, compels a

conclusion that our death-penalty statute violates due process." Id., 129 S.W.3d at 540. The

appellant referred to reports, case studies, and court cases documenting the exoneration of

actually innocent death row inmates. !d. But the Court of Criminal Appeals rejected that

claim, holding that the "risk that another person who may be innocent will be executed does

not violate appellant's due process rights." !d.

In the present case, Judge Fine has preordained the defendant's innocence by stating,

"I am not prepared to say that our society, that our citizenry is willing to let innocent people

die so that the State of Texas can have a death penalty." (RR. 3/4/2010 Hearing - 28-31).

Such an argument would be irrelevant in the present case unless Judge Fine had already

concluded that the defendant was innocent. See Paredes, 129 S.W.3d at 532. Additionally,

on March 5, 2010, Judge Fine made comments regarding our society sacrificing persons

from the "Ninth Ward of New Orleans." (RR. 3/5/2010 Hearing - 11). That statement

appears to be a specific reference aimed at John Edward Green, Jr., because there was

evidence in the record prior to March 5 that the defendant was from the Ninth Ward ofNew

Orleans. But the issue of the defendant's innocence must be resolved at the guilt stage of

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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

reasonable people, knowing all the circumstances would harbor doubts on Judge Fine's

impartiality. Kemp, 846 S.W.2d at 305.

During the March 5, 2010 hearing, Judge Fine once again demonstrated his partiality

and bias when he noted the retrial "in Travis County in Judge Charlie Baird's court" of

someone who had allegedly been executed.5 Judge Fine also referred to the willing

suspension of disbelief based on what "the Innocence Project has uncovered and in light of

what we now know of the value of eyewitness identification." (RR. 3/5/2010 Hearing - 8-

II). Judge Fine stated that "we have overwhelming evidence that we are, in fact, executing

innocent persons." 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." (RR. 3/5/2010

Hearing - 8-11).

Despite his earlier rulings and pronouncements, Judge Fine backtracked on March

26, 20 I0, and repeatedly stated, "I believe the death penalty to be constitutional." (RR.

3/26/20I0 Hearing - 11). But those recent affirmations are not credible in light of all the

statements made previously by Judge Fine. The statements on March 26, 2010 were made

with an eye toward avoiding recusal, which was explicitly mentioned by the judge prior to

, As stated previously in footnote 3, the State is unaware of any such proceeding, although Judge Baird did conducta proceeding which purported to detennine that a man who passed away in prison was innocent. That man had beenconvicted of sexual assault and not capital murder, and he was not executed by the State. See Steven Kreytak, JudgeIssues Formal Findings in Cole Cose, April 7, 2009, http://www.statesman.com!blogs/content/shared­gen/blogs/austin/courtsl entries! 2009/04/07!baird_issues_fonnal_findings_i.htrnl?cxntfid=blogs_austin_legal.

IS

claiming for the fIrst time in such a manner that he believed that the death penalty was

constitutional (RR. 3/26/2010 Hearing-ll-12).

While Judge Fine attempted to clarity many of his previous comments concerning

the validity of the Texas death penalty, he has continued to require the parties to participate

in an April 27, 2010, evidentiary hearing on the Defendant's motion to hold the Texas death

penalty statute to be unconstitutional. Judge Fine has consistently stated his intention that,

at that evidentiary hearing, evidence will be presented that an actually innocent capital

murder defendant has been executed by the State of Texas.6 At all times, Judge Fine has

made it clear that he is requiring that this evidentiary hearing be held prior to a jury's

determination of John Green's guilt or innocence. Indeed, Judge Fine concluded the most

recent hearing by stating that the hearing on whether an innocent person had been executed

would take place as long as Judge Fine was the judge in the case (RR. 3/26/20 I 0 Hearing -

12).

There are few published OpInIOnS discussing granted recusal motions because

granted recusal motions are not subject to review; appellate opinions discuss only recusal

motions that were denied and, often, in little detail. See ROBERT P. SCHUWERK & LILLIAN

B. HARDWICK, 48A TEXAS PRACTICE: HANDBOOK OF TEXAS LAWYER AND JUDICIAL

ETHICS § 40:4 (Supp. 2010) see also TEx. R. elV. P. 18a(t) ("If the motion is granted, the

order shall not be reviewable, and the presiding judge shall assign another judge to sit in the

case."). Nevertheless, there is at least one published case dealing with recusal in the context

6 As a Criminal District Court judge, Judge Fine's jurisdiction is limited to original jurisdiction in criminal casespending in Harris County, Texas. See TEX. CODE CRIM. PROC. art. 4.05 (Vernon 2009). Judge Fine does not haveoriginal jurisdiction over cases that arise outside of Harris County, and does not have appellate jurisdiction.Therefore, Judge Fine has no jurisdiction to relitigate the actual innocence of such parties.

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ofthe death penalty. In Chastain v. State, 667 S.W.2d 791,796 (Tex. App.-Houston [14th

Dist.] 1983, pet. refd), the appellant filed a motion to recuse the trial judge after the judge

went on a television talk show and stated that "in order for the death penalty to be an

effective deterrent, it should be invoked more often." The motion to recuse was denied, and

the appellant appealed. The court of appeals aflirmed, noting that the trial judge made no

statements which indicated that he believed that appellant should receive the death penalty

or that he would encourage the jury to impose such a penalty. The court of appeals stated

that it is presumed that a judge will base his judgment upon the facts as they are developed

at the trial. Id Despite the similar topic, Chastain is not applicable to the present case.

In the present case, Judge Fine has eviscerated any presumption that he would base

his judgment on the facts developed at trial when he repeatedly took judicial notice of facts

that were not in evidence. Moreover, while the statement of the trial judge in Chastain

related to the purpose of the death penalty, it was not made from the bench and did not

conflict with any settled binding precedent. On the other hand, Judge Fine's

pronouncements conflicted with Paredes and numerous other opinions7 that are binding

authority over Judge Fine in this case. Therefore, Judge Fine has demonstrated his partiality

in this case and must be recused.

7 See, e.g., Stroman v. State, No. 74354, 2003 WL 22721137 at *1 (Tex. Crim. App. 2003) (not designated forpublication) ("In his fIrst point of error, Stroman asserts that Article 37.071 is unconstitutional because the deathpenalty violates evolving standards of decency. SpecifIcally, he asserts that developing evidence regarding thenumber of innocent individuals on death row across the nation shows that the death penalty as it is currentlyadministered is flawed and amounts to cruel and unusual punishment. Both we and the Supreme Court of the UnitedStates have held that the Texas death penalty scheme passes constitutional muster. Additionally, the defendant mustshow that the statute operates unconstitutionally as to him in his situation. This he has not done. That it may operateunconstitutionally as to others is not sufficient. Stroman's fIrst point oferror is overruled.") (footuotes omitted)

17

B. Judge Fine has a personal bias or prejudice against the death penalty.

In order to support a recusal under Rule 18b(2)(b), a judge's bias must be

extrajudicial and not based upon in-court rulings. Grider, 773 S.W.2d at 346. And as stated

previously, Judge Fine exclusively considered and discussed extrajudicial sources in the

present case. Judge Fine took 'Judicial notice" that more than 200 inmates from the

country's death rows "have been exonerated." (RR. 3/4/2010 Hearing - 26-27). He also

noted without any citation to authority that those alleged exonerations were limited to DNA

cases (RR. 3/4/2010 Hearing - 26-27). Judge Fine referred to a proceeding in Judge Charlie

Baird's court, which allegedly resolved that an innocent person had been executed. Judge

Fine also referred to what the Innocence Project has "uncovered," without the introduction

of any evidence in the case (RR. 3/5/20I0 Hearing - 8-11). Judge Fine stated that there is

"overwhelming evidence that we are, in fact, executing innocent persons." He reiterated his

anticipation that the defendant was innocent by noting that society is not "willing to let our

own be the sacrificial lambs." (RR. 3/5/2010 Hearing - 8-11). It appears that Judge Fine

made this determination based on his assumptions.

While Judge Fine has shown a willingness to recognize sources that were not

presented to him by either party, he has refused to acknowledge binding authority that

would foreclose the defendant's claim in the present case. The defendant's motion to

declare Article 37.071 of the Texas Code of Criminal Procedure to be unconstitutional is

18

not unique.8 It is clearly taken from-if not a verbatim recitation of-previous motions

that have been filed in death penalty cases for quite some time. Trial courts have

routinely denied these motions, and reviewing courts have repeatedly upheld the trial

courts' rulings on such motions. Judge Fine was not confronted with an issue of first

impression.

In a death penalty case arising out of the state of Texas, the United States Supreme

Court has noted that the defendant is provided numerous protections:

A person when first charged with a crime is entitled to a presumption ofinnocence, and may insist that his guilt be established beyond a reasonabledoubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368(1970). Other constitutional provisions also have the effect of ensuringagainst the risk of convicting an innocent person. See, e.g., Coy v. Iowa,487 U.S. 1012, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988) (right to confrontadverse witnesses); Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L.Ed. 2d 798 (1988) (right to compulsory process); Strickland v. Washington,466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (right to effectiveassistance of counsel); In re Winship, supra (prosecution must prove guiltbeyond a reasonable doubt); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct.1444,20 L. Ed. 2d 491 (1968) (right to jury trial); [Brady v. Maryland, 373U.S. 83 (1963)] (prosecution must disclose exculpatory evidence); Gideonv. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (right toassistance of counsel); In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623,625,99 L. Ed. 942 (1955) (right to "fair trial in a fair tribunal").

Herrera v. Collins, 506 U.S. 390, 399-400 (1993). The Eighth Amendment also requires

increased reliability of the process by which capital punishment may be imposed.

Herrera, 506 U.S. at 405 (citing McKoy v. North Carolina, 494 U.S. 433 (1990) (holding

that the unanimity requirement impermissibly limits jurors' consideration of mitigating

• The motion filed by lbe defense is so obviously pro forma lbat it has not been updated to reflect current law. Themotion asserts among olber things lbat lbe State of Texas fails to bar execution of juveniles. (Appendix B). Butjuvenile executions were found to violate the Eighth Amendment in 2005, five years before lbe hearing in thepresent case. See Roper v. Simmons, 543 U.S. 551 (2005). This motion has clearly been presented to olber trialcourt judges and examined on appeal and lbere is nothing novel.

19

evidence); Eddings v. Oklahoma, 455 U.S. 104 (1982) (stating that the jury must be

allowed to consider all of a capital defendant's mitigating character evidence); Lockett v.

Ohio, 438 U.S. 586 (1978) (plurality opinion) (same». All of these protections have

been, and will be, implemented in John Edward Green, Jr.'s case and in every other

capital murder case in Harris County.

In Herrera, the United States Supreme Court reaffirmed that "[d]ue process does

not require that every conceivable step be taken, at whatever cost, to eliminate the

possibility of convicting an innocent person." Herrera, 506 U.S. at 400 (emphasis

added) (quoting Patterson v. New York, 432 U.S. 197 (1977». "To conclude otherwise

would all but paralyze our system for enforcement of the criminal law." Herrera, 506

U.S. at 400. Similarly, the Texas Court of Criminal Appeals has often been confronted

with claims in death penalty cases that Texas' death penalty scheme is unconstitutional

"because it leads the State to execute an unacceptable number of innocent defendants,"

and that "the constitutionality of the death penalty must be determined and redetermined

by the courts in keeping with evolving standards of decency and current knowledge about

its operation." The court has consistently rejected such claims, absent an ability by the

capital murder defendant to show that his own rights have been violated. See, e.g.,

Scheanette, 144 S.W.3d at 505-06; Paredes, 129 S.W.2d at 540.

A federal court of appeals has stated that whether contemporary values dictated

that the death penalty was unconstitutional was for the United States Supreme Court to

decide. The court stated that "the Eighth Amendment does not authorize this court to

overrule Supreme Court precedent "even where subsequent decisions or factual

20

•

developments may appear to have significantly undermined the rationale for [an] earlier

holding." United States v. Mitchell, 502 F.3d 931, 982 (9th Cir. 2007) (summarily

rejecting defendant's claim that federal death penalty was unconstitutional because it no

longer comported with evolving standards of decency, and resulted in the execution of

innocent people) (quoting Roper v. Simmons, 543 U.S. 551, 594 (O'Connor, J.,

dissenting)).

The United States Supreme Court and the Texas Court of Criminal Appeals have

held that the Texas death penalty scheme passes constitutional muster. See generally

Jurek v. Texas, 428 U.S. 262, 269 (1976); Conner v. State, 67 S.W.3d 192,202-03 (Tex.

Crim. App. 2001). These two courts of last resort have continued to uphold the

constitutionality of the Texas death penalty statute. Judge Fine has been presented with

all of this authority. He nevertheless persists in making comments that show that he

cannot be fair concerning the death penalty. And he persists in his requirement of an

evidentiary hearing, in which the validity of other death penalty verdicts be relitigated.

Presumably Judge Fine will then hold sway over whether an often-used and often­

reviewed Texas statute is facially unconstitutional or unconstitutional in broad

application after that same statute has been repeatedly upheld by the Texas Court of

Criminal Appeals and the United States Supreme court, notwithstanding that Judge Fine

will not consider whether the statute is constitutional as applied to John Edward Green,

Jr.. Accordingly, Judge Fine should recuse himself from proceeding further in this case

21

C. Public policy requires that Judge Fine be recused.

The integrity of a court is called into question when a judge is partial, biased, or

prejudiced or creates a reasonable perception of such. "Public policy demands that a judge

act with absolute impartiality." CNA Ins. Co. v. Scheffey, 828 S.W.2d 785, 792 (Tex. App.­

Texarkana 1992, writ denied). "Judicial decisions rendered under circumstances that

suggest bias, prejudice or favoritism undermine the integrity of the courts, breed skepticism

and mistrust, and thwart the principles on which the judicial system is based." Id.

Judge Fine has demonstrated bias and partiality in the face of clear and binding

authority that the Texas death penalty sentencing statute is constitutional. As stated

previously, he has repeatedly made statements and rulings without any basis in the record to

find that the death penalty is unconstitutional, he has encouraged defense counsel to file

motions seeking such a ruling, and he has so ruled. He cannot preside over a death penalty

case in an impartial and unbiased manner. Public policy requires his recusal.

Judge Fine has manifested his sincere and firmly held conviction that Article 37.071

is unconstitutional because ofhis belief that an innocent person has been executed in Texas.

Public policy requires that this case be presided over by a judge who is impartial and can

follow Texas law in an unbiased manner. Therefore, public policy and Texas law require

the recusal of Judge Fine in this case.

22

v.

Service has been accomplished by hand-delivering a true and correct copy of this

instrument to counsel for the Defendant on the date of filing with the clerk ofthis Court.

THEREFORE, the State respectfully requests that the Judge of this Court recuse

himself and that he request that the Presiding Judge of this administrative judicial district

assign another judge to this case, or in the alternative, that he refer this motion to the

Presiding Judge of this administrative district for a hearing on this motion.

RESPECTFULLY SUBMITTED this I't day ofApril, 2010.

PATRICIAR. LYKOSDistrict AttorneyHarris County, Texas120 I Franklin, 6th FloorHouston, Texas 77002(713) 755-5800State Bar ofTexas No. 12716000

23

Pursuant to the verification requirement of TEX. R. ClY. P. 18a(a), all allegations and

statements in the foregoing Motion to Recuse are true and correct to the best of my

knowledge and belief.

~~~~Assistant District AttorneyHarris County, Texas1201 Franklin, 6th FloorHouston, Texas 77002(713) 755-5800State Bar ofTexas No. 24002071

SWORN TO AND SUBSCRiBED before me on this the 1st day ofApril, 2010.

ALICIA TREVINONotary Public

STATE OF TEXAS

Commission Exp. 03.(J8·2013NOTARY PUBLICin and for Harris County, Texas

24

STATE OF TEXAS

V.

JOHN EDWARD GREEN, JR.

NO. 1170853

§ IN 177th DISTRICT COURT§§§§ HARRIS COUNTY, TEXAS

NOTICE

MOVANT FOR RECUSALEXPECTS THE MOTION TO RECUSE TO BE PRESENTED TO

THE JUDGE THREE DAYS AFTER THE FILING OF SUCH MOTION

Pursuant to the notice requirement ofTEX. R. CIV. P. 18a(b), Movant hereby gives

notice that Movant expects the Motion to Recuse in this case to be presented to the judge

three days after the filing ofsuch motion.

RESPECTFULLY SUBMITTED this 1st day of April, 2010.

~~;~Assistant District AttorneyHarris County, Texas1201 Franklin, 6th FloorHouston, Texas 77002(713) 755-5800State Bar ofTexas No. 24002071

2S

STATE OF TEXAS

v.

JOHN EDWARD GREEN, JR.

NO. 1170853

§ IN 17ih DISTRICT COURT§§§§ HARRIS COUNTY, TEXAS

ORDER

The State's motion to recuse is GRANTED.

Signed this day of , 2010.

JUDGE PRESIDING177th District CourtHarris County, Texas

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