HOUSTON — A Texas judge criticized for declaring the death penalty unconstitutional took back his controversial ruling Tuesday but scheduled a hearing for next month to hear evidence on the issue.
State District Judge Kevin Fine said he wants more information before making a final decision about whether the state's death penalty statute allows for the possible execution of an innocent person. Fine is a judge in Harris County, which sends more inmates to death row than any other county in the nation.
During a court hearing Tuesday, Fine rescinded the ruling he made last week in granting a pretrial motion in the capital murder case of John Edward Green Jr., accused of fatally shooting a Houston woman and wounding her sister during a June 2008 robbery.
Green's attorneys argued Texas' death penalty statute violates their client's right to due process of law under the 5th Amendment because hundreds of innocent people nationwide have been convicted, sent to death row and later exonerated.
Fine took back his ruling but asked Harris County prosecutors and defense attorneys to submit motions on the due process issue by April 12. Fine will then have an evidentiary hearing April 27, when testimony on whether innocent people have been executed in Texas is set to be presented.
Casey Keirnan, one of Green's defense attorneys, said the case is "headed in the exact direction we want it to go."
"This is the very first legal proceeding where a court is going to look into the issue as to whether or not we have executed innocent people in Texas," Keirnan said. "It's now taken on a life I've never dreamed it would. It's so amazing to me."
Keirnan said he and co-counsel Robert Loper still are determining whom they might call to testify at next month's hearing. But he said it might include officials connected to the case of Cameron Todd Willingham, whose 2004 execution for the deaths of his three daughters in a 1991 house fire near Corsicana is now being questioned.
Prosecutor Kari Allen was pleased Fine rescinded his order.
"However, it is unfortunate that we will not be able to proceed more quickly with the actual trial of the case," she said.
Tuesday's decision will delay the trial, which had been set to begin with jury selection at the end of this month.
"We believe that the law in this area is well-settled, and we are confident that a review of the state's brief will clarify that the death penalty can be fairly and properly sought in the state of Texas," said Chief Appellate Prosecutor Alan Curry.
Fine, a Democrat who is heavily tattooed and says he's a recovering alcoholic and former cocaine user, declined to comment Tuesday on why he took back his ruling.
But he previously said there was no precedent to guide him in resolving the due process issue raised by Green's defense attorneys.
Fine said in his decision last week that it is safe to assume innocent people have been executed.
Texas Attorney General Greg Abbott last week called Fine's ruling one of "unabashed judicial activism." Gov. Rick Perry also slammed it, saying he supports the death penalty as do the majority of people in Texas.
Fine said he is not legislating from the bench.
Last year, the state executed 24 people, including six cases from Harris County. Three people have been executed so far this year, none from Harris County. A fourth inmate, from Bexar County, is set for execution Thursday.
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