HOUSTON -- A Texas judge who declared during a capital
murder case that the death penalty is unconstitutional but later
rescinded his ruling has refused a request by prosecutors to remove
himself from the case.

The Harris County District Attorney's Office has asked to have
state District Judge Kevin Fine removed from the case, accusing him
of being biased against capital punishment, said Donna Hawkins, a
spokeswoman for the office. District Judge Olen Underwood, who
presides over the judicial region that includes Harris County, will
set a hearing on the request, she said.

Vickie Long, Fine's court coordinator, said Friday the judge
would not be commenting on the district attorney's request.

Fine, in ruling last month the Texas death penalty statute is
unconstitutional, said it is safe to assume innocent people have
been executed. He also questioned whether society, considering the
recent history of death row inmate exonerations, can continue to
ignore this reality.

The judge later rescinded his ruling, which he made in granting
a pretrial motion in a capital murder case. But he then scheduled a
hearing for the end of this month to hear evidence on the issue.
That hearing is now on hold.

Fine's ruling was lauded by anti-death penalty groups and
criticized by many elected officials, including Gov. Rick Perry.

Fine, a Democrat, is a judge in Harris County, which sends more
inmates to death row than any other county in the nation. Texas has
carried out more executions than any other U.S. state.

There is strong support in Texas for the death penalty. But the
state's use of it has recently come under fire from death penalty
opponents who claim Texas already has used shaky evidence to
execute at least one innocent man, convicted arson murderer Cameron
Todd Willingham in 2004. Perry was criticized after replacing in
October three members of a state panel investigating allegations of
misconduct and negligence in forensic analyses that led to
Willingham's conviction. The panel is still looking at Willingham's

Casey Keirnan, one of the defense attorneys for John Edward
Green Jr., the defendant in the capital murder case, said Fine is
not biased and prosecutors want to remove him so the court hearing
on whether innocent people have been executed in Texas doesn't take

Simply because the judge has a different legal opinion than
the state doesn't mean they can ask to change horses in the middle
of the race, Keirnan said. They want to get a different judge
that they think will rule in their favor.

Green is accused of fatally shooting a Houston woman and
wounding her sister during a June 2008 robbery.

In the motion to remove Fine, Harris County District Attorney
Pat Lykos wrote that 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

Lykos said examples of this impartiality include: the defense
motion declaring the death penalty unconstitutional is not unique,
the statute has long been upheld by higher courts and Fine's
insistence on holding a hearing to see if innocent people have been

He cannot preside over a death penalty case in an impartial
and unbiased manner. Public policy requires his recusal, Lykos
wrote in the motion, which was filed last week.

Green's attorneys argue Texas' death penalty statute violates
their client's constitutional right to due process of law because
hundreds of innocent people nationwide have been convicted, sent to
death row and later exonerated.

Fine has said he is not legislating from the bench but that
there was no precedent to guide him in resolving the due process

Last year, the state executed 24 people, including six cases
from Harris County. Five people have been executed so far this
year, one from Harris County. The state's next execution is set for
April 22.

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