Local judge rules death penalty unconstitutional

HOUSTON DA Pat Lykos says politics has no role in justice, but now some are questioning whether politics has crept in. What happened inside Judge Kevin Fine's court today quickly became the talk of the courthouse.

"All over the internet, list serve, phone calls going around," said defense attorney Kent Schaffer.

And all the attention not for what a jury did but for the judge did.

"We will not stand for it," said District Attorney Pat Lykos.

It was a pretrial motions hearing for capital murder defendant John Green who was accused of gunning down two sisters, one fatally, a year and a half ago in front of two children. Green's defense team filed a motion challenging the constitutionality of the death penalty. It's one they've filed before.

"With other defendants in other courts and other judges," said Robert K. Loper, Green's Attorney.

However, it has never been granted. Judge Fine is now their exception.

"Today, Kevin Fine has stood up and said the death penalty statute is broken and doesn't work anymore," said Casey Keirnan, Green's Attorney.

Even though it's the law in Texas, the judge declared the death penalty unconstitutional. It was a victory for those against capital punishment.

"I think he took an enlightened approach, took a very courageous approach," said Loper.

But it angers the district attorney.

"We're very disappointed and dismayed by this decision," Lykos said.

She believes it will only delay justice for the victim's family as prosecutors are forced to appeal.

"The issues raised in this motion have been litigated over and over again and they've been rejected by the appellate courts," said Lykos.

As a state district judge, Fine can do whatever he wants in his court. The only people he has to answer to are those who elected him. But with such a controversial ruling, his motive is being questioned.

"The courtroom of a judge isn't his fiefdom to decide what the law is. It's to follow the law and one would question whether he's following the law or legislating," said KTRK Legal Analyst Joel Androphy.

The DA says they'll be working to file the appropriate motions to appeal. While Green's defense team hopes the ruling will be upheld, few believe it actually will be. Harris County is infamous for being the death penalty capital of the world.

We did call Judge Fine for comment. The deputy in his court told us, "his statement is the record." The court record was not immediately available.

Because the judge who made the comments is a Democrat, Republicans are pouncing.

"This is why this is so unique and so surprising and really outrageous to the extent that the law is already settled in this area," said Jared Woodfill, Chairman of the Harris County Republican Party.

Judge Fine is up for re-election in November 2012.