Dallas County Judge Who Ruled Death Penalty Unconstitutional Is Forced To Recuse Herself

Teresa Hawthorne, the Dallas County judge who ruled that the state's death penalty statute was unconstitutional, must recuse herself from a capital murder case, a judge ruled today.

Hawthorne was presiding over the capital murder trial of Roderick Harris, who's accused of killing brothers Alfredo and Carlos Gallardo during a 2009 robbery at a South Dallas mobile home. Dallas police also believe Harris may be responsible for another robbery and murder in Oak Cliff earlier the same month. Hawthorne's ruling had been lauded by the Texas Moratorium Network and others as a possible first step toward abolishing the death penalty in Texas.

Hawthorne didn't appear at this morning's recusal hearing, which was held in Judge John Ovard's courtroom. Harris was present, however, handcuffed and wearing a grey suit.

Assistant District Attorney David Alex argued that Hawthorne's bias against the death penalty was clear from statements she made during a December 19 pre-trial hearing. He quoted, in bits and pieces, things the judge said in open court that day, such as: "I remember when women and blacks could not vote. I remember when so-called witches were burned. I remember when gays had to hide to be in the military." Hawthorne said then she wasn't trying to engage in judicial activism; she insisted last month that she was not trying to "buck the system or stir the waters." Alex vehemently disagreed.

"The judge analogized the death penalty to some very heinous times in our American history," Alex told the court. It's obvious, he said, that she has "very strong emotional, personal feelings against the death penalty. ... But none of these things have anything to do with legal precedent."

Leslie Rachael Jones, another assistant DA who's also prosecuting the Harris case, testified that during the December 19 hearing, Hawthorne "appear[ed] to be emotional" and "choked up" before reading from her ruling. In that ruling, Hawthorne said the Texas death penalty statute is unconstitutionally vague because it doesn't adequately define terms like "mitigating evidence" and "future dangerousness," terms that are crucial for juries who must choose between life and death.

"This is a very difficult decision for me," Hawthorne said, according to court transcripts. "So there are a few thing I want to say. ... We can all agree judge's are gatekeepers of society's standards of decency and fairness. The system that determines who should die in Texas is truly broken."

The prosecutors showed that Hawthorne's comments about "gatekeepers" and Texas's "broken system" are direct quotes from a Houston judge, Kevin Fine. Fine ruled in 2010 that the state death penalty statute is unconstitutional because it carries too large a risk of executing an innocent person. At the time, Texas Attorney General Greg Abbott released a statement calling Fine's ruling "an act of unabashed judicial activism." Facing a recusal hearing, Fine eventually withdrew his ruling and did not recuse himself from the case in question. ADA David Alex told Unfair Park later that judges ruling against the death penalty in Texas is "a bad trend."

In his cross-examination of Jones, one of Harris's defense attorneys, Brad Lollar, said as far as he was concerned there was "a lot of misinformation about what the judge actually ruled. The judge has not ruled the death penalty unconstitutional, but the Texas death penalty statute, because it's 'arbitrary and capricious.'" Lollar argued that Hawthorne was actually "exercising her right and duty as a trial judge" to make a ruling based on the evidence before her.

In his closing arguments, Doug Parks, another of Harris's attorneys, argued that the state simply didn't like Hawthorne's ruling in the defense's favor on some of the pre-trial motions. If she had ruled in the state's favor, he argued, "Her personal beliefs about the death penalty wouldn't matter one iota. ... She made rulings the state didn't like, and now they're attacking the trial judge based on her personal beliefs and feelings."

Ultimately, though, Ovard still ruled that a "reasonable person" would have to conclude that Judge Hawthorne is too biased to preside over the case. In the short term, Harris's trial won't be affected; another judge, Webb Baird, was already set to begin jury selection next week. It's still not clear who will take over for Hawthorne.

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