Houston judge declares death penalty unconstitutional

HOUSTON (AP) - A state district judge in Houston has granted a pretrial motion declaring the death penalty unconstitutional, a decision that the Texas attorney general called "an act of unabashed judicial activism."

The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty is unconstitutional for their client, John Edward Green Jr., the Houston Chronicle reported Thursday.

State District Judge Kevin Fine said in his ruling that it is safe to assume innocent people have been executed.

"Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?" he said. "I don't think society's mindset is that way now."

The decision is unlikely to withstand appellate review, said Sandra Guerra Thompson, professor at the University of Houston Law Center.

Texas Attorney General Greg Abbott offered to help the district attorney appeal Fine's decision, which Abbott said ignored U.S. Supreme Court precedent.

"We regret that the court's legally baseless order unnecessarily delays justice and closure for the victim's family including her two children, who witnessed their mother's brutal murder," Abbott said.

Green, 23, is accused of fatally shooting a Houston woman and wounding her sister on June 16, 2008.

Gov. Rick Perry joined Abbott and District Attorney Patricia Lykos in slamming Fine's ruling.

"Like the vast majority of Texans, I support the death penalty as a fitting and constitutional punishment for the most heinous crimes," Perry said. "This is a clear violation of public trust and I fully support the Harris County District Attorney's decision to pursue all remedies."

Green's lawyers had argued the law providing for the procedures surrounding instructions to a jury in the Texas Code of Criminal Procedure violate the Eighth and 14th Amendments to the U.S. Constitution prohibiting cruel and unusual punishment and guaranteeing the right of due process.

If Fine's ruling were upheld, it effectively would take away the option of the death penalty in Green's case.

"It's pretty traditional in these cases to file as many motions as you can and try to find something the judge finds approaches unconstitutionality," said Loper, the defense attorney.

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Information from: Houston Chronicle,

http://www.houstonchronicle.com

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