The 177th's Death Penalty Hearing

The media (especially the Houston Chronicle) has been abuzz this week over the hearing going on in Judge Kevin Fine's court about the death penalty. Specifically, this morning, the Chronicle seems aghast that District Attorney Pat Lykos would order her appellate division (represented by Alan Curry) to remain silent during the hearing.

The Chronicle calls Lykos' move "bold".

I'll call it something else -- smart.

Yes, I know you are probably shocked that I agree with Pat Lykos on something, but let's look at what other choice does she really have in this matter at this point? The Harris County District Attorney's Office has registered their objection to the hearing taking place at all. They have put those objections in writing and Judge Fine has overruled them and is proceeding with the hearing anyway.

So, the move Lykos and Company are making is really the only one they can play now. They don't believe that the hearing has any legal value because it isn't something authorized by the Code of Criminal Procedure. Legally and respectfully, they aren't going to justify its existence by participating in it.

And, in this, I think they are taking the right tactic.

When I was in law school, I interviewed then-District Attorney Johnny Holmes about the Death Penalty. One of the many things he pointed out to me when I interviewed him that afternoon was that he would never participate in a Death Penalty debate, despite the fact that he was constantly bombarded with invitations to do so. The point that Mr. Holmes made to me was that the Death Penalty is something that is such a hot-button issue that it is deeply ingrained in the way a person thinks and feels. Much like issues of abortion or anything else that ties into a person's definition of religion and/or morality, one's feelings on the Death Penalty aren't going to get changed by a debate.

He was right, and the Lykos crew is treating the hearing in Judge Fine's court as a very public debate in a courtroom. What is the point in entering into it?

I like Judge Fine, and I think his heart is in the right place. I also think he has courage in his attack on the Death Penalty. It is certainly not going to be the most politically savvy move he has made on the bench.

But he knows that.

And he's proceeding anyway.

I find his principles admirable, even though I don't really agree with what he's doing.

I had a talk with Pat McCann last night over, um, coffee, about whether or not the hearing in the 177th would actually change anything. We disagreed over whether or not it would. Personally, I think the hearing will bring a lot of attention to the Death Penalty in Texas, but I don't think it will change anything directly.

But, I could be wrong about that. I have been before.

In the meantime, grab some popcorn and sit back and watch. It should be interesting.

I Can't Leave You Kids Alone for A Minute . . .

Good Lord, I go out of town for a week, and you guys let the damn Death Penalty get abolished?

Kind of.

Not really.

Only in the 177th until the ruling gets reversed.

Man, the Democratic Judicial candidates right now are going to be pissed . . .

Lisa Falkenberg's Column Today

I'm a little late on the draw on commenting on Lisa Falkenberg's column this morning about the actions of Judge Kevin Fine in a recent sexual assault trial.

I think it is a very good column and makes a very good point, and I say that despite the fact that I like Judge Fine, and Judge Fine has never been anything but kind to me (both as a lawyer and now as a Judge).

The problem is that sometimes when shifting into a new job position, one needs to learn that the role you used to play isn't the one you will be playing any longer. I can certainly sympathize, having shifted from a prosecutor to a defense attorney right around the same time that Judge Fine switched from defense attorney to Judge. Although I've been criticized for blogging like a prosecutor, I think that all of my clients would gladly tell you that once we're in the courtroom, I am able to put my past career entirely behind me.

I'm there to represent them wholeheartedly.

If I didn't do that, I would have a very short career as a defense attorney ahead of me.

In the trial case mentioned by Lisa in her column, it would appear that Judge Fine was having some difficulty in putting his past career as a member of the Defense Bar behind him.

And as Lisa aptly points out, he just can't do that.

It doesn't mean that Judge Fine is a bad person. I can attest that he is a very good person who is truly trying to make a difference in the Criminal Justice System. Unfortunately, it sometimes results in some unorthodox methods that lead to complications that should not be coming from the Bench.

In this case, a line was crossed, and major credit should go to prosecutor Ed McClees for standing up for the Complainant in his case. Lisa described it:

The question drew an objection from Prosecutor Ed McClees, who questioned the relevance in a tense exchange.

Objecting to a Judge (as opposed to Opposing Counsel) is a gutsy move, and not a lot of Prosecutors (or Defense Attorneys, for that matter) would have been brave enough to do so. A lawyer can quickly find himself in jail for objecting to a judge.

But Ed clearly understood the definition and parameters of his job, and he did the right thing despite potentially being held in contempt. In an Office that seems to rapidly be losing a lot of its Leadership, I think younger prosecutors can look to Ed as somebody who can lead them in the right direction and by example. It is very easy to stand up for something when you are surrounded by people. It's much more difficult to stand up alone at counsel table, which is exactly what Ed did.

Judge Fine was a very talented and brilliant Defense Attorney in the years he spent before becoming a Judge. I have no doubt that he has the potential to be a talented and brilliant Judge, as well. But I think he's going to have to let go of the past life to progress to the new one.

I have no doubt he would have passed along the same advice to me if I was still behaving like a prosecutor in his courtroom.

At least I hope he would.