STATE OF TEXAS

v.
JOHN EDWARD GREEN, JR.
NO. 1170853
§ IN 17i
h
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 about
January 13, 2010, that if there were a judge on the bench in the State of Texas who
would declare the death penalty unconstitutional, it was he.
• On March 4, 2010, Judge Fine took "judicial notice" on his own motion that more
than 200 inmates from the country's death rows "have been exonerated."
• Judge Fine also stated on that same date that "we have overwhelming evidence that
we are, in fact, executing innocent persons."
• Judge Fine has continued to require the parties to participate in an April 27, 2010
evidentiary hearing to determine whether an actually innocent capital murder
defendant has been executed in the state of Texas despite the fact that such an issue
is completely irrelevant to whether Article 37.071 is constitutionpst it a ~ ~ o
this defendant. l L -..Ii.. U
oren Jackson
Diolricl Clerk
APR 01 2010

• In making his rulings on March 4 and 5, Judge Fine asserted his consideration of
extrajudicial information not related to John Green, including the Illinois moratorium
ofthe death penalty and the Innocence Project.
• Judge Fine has consistently framed the issue from a personal perspective when he
stated that he is not willing to stand by when an innocent family member, friend or
acquaintance is executed.
I.
Relevant Facts
On March 4, 2010, the Honorable Kevin Fine, presiding judge of the 177
th
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 that
there 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 have
been 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 37.01
merely provides for the statutory defmition ofa "verdict." TEX. CODE CRIM. PROC. art. 37.01 (Vernon 2009). It is
clear 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 Information
Center 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 possibly
innocent person being executed
2
.'
of those exonerated have been cases where there was DNA evidence left
to test to show the defendant's innocence and we can't - we cannot
conceivably revisit someone's innocence absent some form of evidence such
as DNA evidence. That calls into question even more so the execution of
innocent 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 is
settled law that the Fifth Amendment's broad guarantee of 'due process' must
be interpreted in light of evolving standards of fairness and ordered liberty."
Then you go on to discuss the exoneration of innocent individuals from
America's death rows, which again I will take judicial notice that there have
been more than 200 such individuals exonerated. However, those
exonerations have been by and large limited to cases where there has
been DNA evidence which leaves those accused of capital offense where
there 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 got
to 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 of
Texas, can have a death penalty so that those that might be deserving of the
penalty of death can actually be put to death, whether or not that - that trade-
off would meet our current standards of fairness and ordered liberty. I've
taken no polls. I haven't seen any - I've never read any articles, whether in a
newspaper, legal journal, wherein people have been asked the question: Is it
okay to execute innocent people so that we as a society can have a death
penalty to execute guilty?
From my standpoint, I am not willing to have my friends or a
family member or even an acquaintance who is innocent - I'm not
willing to have -let them be the sacrificial lamb to be executed so that we
can have a death penalty and execute those actually deserving of the
death penalty. And I believe that because of the efforts of the Innocence
Project and Innocence Projects around the country and the attention
given to the moratorium on executions in the state of Illinois because of
this 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 were
found to be innocent and that more than likely statistically there are at
least an equal number of inmates sitting on death row somewhere in this
3

country that do not have the DNA evidence available to demonstrate
their innocence. And I think that our country has become more aware, our
citizenry has become more aware of the fact that there is a more than a chance
of executing innocent people.
I don't think anyone, if asked, if they were willing to allow one of
their family members, friends or acquaintance or co-workers to be the
sacrificial lamb would agree that they were willing to do that. I would
imagine even if I asked the prosecutors individually personally if they would
be 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 guidance
charging the trial courts with the duty of being gatekeepers, this is probably
the 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 let
innocent people die so that the State of Texas can have a death penalty.
Acting as gatekeeper and strictly as gatekeeper and having to make that
decision, that's what I so find and I'm going to grant the defendant's motion
and we'll let a higher court ofgreater wisdom make the ultimate decision.
Hopefully that being the Supreme Court of the United States. So Motion to
Hold 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 law
that requires - case law, United States Supreme Court case law that requires
that I play the role of gatekeeper when it comes to what our society deems is
fair and decent and as gatekeeper and my only guiding principle being the
very fact that we have had over 200 innocent people exonerated from
America's death rows can only lead to the conclusion that we have, in
fact, 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
4

death penalty so that the State of Texas 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 DNA
evidence. What of those cases that do not involve DNA evidence? To my
knowledge, there has been only one retrial of a deceased individual who has
actually been executed. That trial took place in Travis County in Judge
Charlie Baird's court wherein it was found that the deceased was, in fact,
innocent and thereafter executed by the State of Texas.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 willing
suspension of disbelief. That's what we must engage in if we're going to
say we've never executed an innocent person in light of what the
Innocence Project has uncovered and in light of what we now know of
the value of eyewitness identification and in light of the fact that there are
numerous cases, whether a death case or not, where there is no DNA
evidence to go back and test in order to exonerate the individual.
This current awareness in our society necessitates the question of
whether we as a society, knowing that we execute innocent persons, desire to
continue to ignore that reality.
Now, I say this with a bit of caution. It is perhaps easy to ignore that
reality 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 which
purported to detennine that a man who passed away in prison was innocent. That man had been convicted of sexual
assault and not capital murder, and he was not executed by the State. See Steven Kreytak, Judge Issues Formal
Findings in Cole Case, April 7, 2009, http://www.statesman.com/blogs/contentlshared-gen/blogs/austin/courtsl
entriesl 20091 04/07/baird_issues_fonnaUindings _austin_legal.
5

income neighborhoods, is a minority, or has a criminal history. I know that
several feel that, well, ifthey're not guilty ofthe capital murder, they're guilty
of something so it's okay. I don't think society is of that frame of mind any
longer.
Our Constitution affords protections to all citizens, not just those sitting
at counsel table accused of a crime, and I shudder to think and I do not
believe our society takes a blind eye to themselves as individuals and those
close to them and, therefore, condone the execution of innocent persons from
low income, predominantly minority citizenry. I don't think society is willing
to do that anymore. I don't think society is willing to engage in the willing
suspension of disbelief that we do not and could never execute an innocent
person.
And because the Constitution protects us all, the question to be asked
and answered in resolving this issue is whether we as a society - we have to
look at ourselves. Are we willing to allow our sons, our daughters, our
brothers, our sisters, our friends to be the sacrificial lambs should they
be wrongly accused of a capital offense and then be executed?
I don't think there is - there may be some people out there that would
say they're willing to let their son die so that the State of Texas can have a
death 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 to
allow the execution of their friends and family or to be the sacrificial lambs so
that the State of Texas can have a death penalty. I think that the changing and
evolving standards of fairness and ordered liberty are such that in light of the
fact that we have overwhelming evidence that we are, in fact, executing
innocent persons, I don't believe that our evolving standards are at the point
where we're willing to sacrifice even those that have criminal records and
even those that come from the Fifth Ward or the Ninth Ward of New
Orleans[4] or the Fourth Ward or the Third Ward ofHouston.
I think society has begun to take a look within itself, and I think the
proper question to be asked is just that. Are we willing to let our own be the
sacrificial 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 this
case, John Edward Green, was from the Ninth Ward ofNew Orleans. (Appendix G).
6
rescinded his written order, set the case for an evidentiary hearing to be held on April 27,
20I0, 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 ofthe 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 is
going to file that's not listed in 28.01 that could be filed at any time, and that
is maybe supposition on my part, but I anticipate or would not be surprised if
there was a Motion to Recuse me from the case. The case gets sent to Mike
Anderson and then, of course, Anderson rules the way he rules and you guys
are assigned a new court.
I think that's a strong possibility. That's why I want it made perfectly
clear 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. I
believe the death penalty to be constitutional. My question is - only goes to
the motion filed by the Defense, and that's it. That's the only issue. So it
would be up to the Defense to prove that we have, in fact, executed an
innocent person.
The law is clear that - and I will attempt to quote Herrera - "The law is
clear that although it is a violation of the due process clause to execute an
innocent person, it is not a violation of due process clause for someone to be
sentenced to death based simply on a risk or the risk that a defendant might
theoretically be innocent and executed."
7
And then the case goes on to say, "The defendant in this case does not
claim 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 Texas
executed 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 maintain
that's true; and I want a hearing on it.
The Court: All right. And as long as I'm the Judge, there will be a
hearing.
(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.
8
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
9
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
10
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
11
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
12
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 of an 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
13
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 of New
Orleans. But the issue of the defendant's innocence must be resolved at the guilt stage of
14
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, 20I0, 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 conduct
a proceeding which purported to detennine that a man who passed away in prison was innocent. That man had been
convicted of sexual assault and not capital murder, and he was not executed by the State. See Steven Kreytak, Judge
Issues Formal Findings in Cole Cose, April 7, 2009, http://www.statesman.com!blogs/content/shared-
gen/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. 3/26/20I 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 cases
pending in Harris County, Texas. See TEX. CODE CRIM. PROC. art. 4.05 (Vernon 2009). Judge Fine does not have
original 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.
16
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 opinions
7
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 for
publication) ("In his fIrst point of error, Stroman asserts that Article 37.071 is unconstitutional because the death
penalty violates evolving standards of decency. SpecifIcally, he asserts that developing evidence regarding the
number of innocent individuals on death row across the nation shows that the death penalty as it is currently
administered is flawed and amounts to cruel and unusual punishment. Both we and the Supreme Court of the United
States have held that the Texas death penalty scheme passes constitutional muster. Additionally, the defendant must
show that the statute operates unconstitutionally as to him in his situation. This he has not done. That it may operate
unconstitutionally as to others is not sufficient. Stroman's fIrst point of error 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 of
innocence, and may insist that his guilt be established beyond a reasonable
doubt. 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 ensuring
against 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 confront
adverse 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 effective
assistance of counsel); In re Winship, supra (prosecution must prove guilt
beyond 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, 373
U.S. 83 (1963)] (prosecution must disclose exculpatory evidence); Gideon
v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (right to
assistance 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. The
motion asserts among olber things lbat lbe State of Texas fails to bar execution of juveniles. (Appendix B). But
juvenile executions were found to violate the Eighth Amendment in 2005, five years before lbe hearing in the
present case. See Roper v. Simmons, 543 U.S. 551 (2005). This motion has clearly been presented to olber trial
court 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 of his 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. LYKOS
District Attorney
Harris County, Texas
120I Franklin, 6th Floor
Houston, Texas 77002
(713) 755-5800
State Bar of Texas 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 Attorney
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002
(713) 755-5800
State Bar ofTexas No. 24002071
SWORN TO AND SUBSCRiBED before me on this the 1st day ofApril, 2010.
ALICIATREVINO
Notary Public
STATE OF TEXAS
Commission Exp. 03.(J8·2013
NOTARY PUBLIC
in and for Harris County, Texas
24
STATE OF TEXAS
V.
JOHN EDWARD GREEN, JR.
NO. 1170853
§ IN 177
th
DISTRICT COURT
§
§
§
§ HARRIS COUNTY, TEXAS
NOTICE
MOVANT FOR RECUSAL
EXPECTS 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 of such motion.
RESPECTFULLY SUBMITTED this 1
st
day of April, 2010.
~ ~ ; ~
Assistant District Attorney
Harris County, Texas
1201 Franklin, 6th Floor
Houston, Texas 77002
(713) 755-5800
State Bar of Texas No. 24002071
2S
STATE OF TEXAS
v.
JOHN EDWARD GREEN, JR.
NO. 1170853
§ IN 17i
h
DISTRICT COURT
§
§
§
§ HARRIS COUNTY, TEXAS
ORDER
The State's motion to recuse is GRANTED.
Signed this day of , 2010.
JUDGE PRESIDING
177
th
District Court
Harris County, Texas
26