By Ian Millhiser on Jan 4, 2012 at 1:00 pm

Late last month, Texas trial judge Teresa Hawthorne held that Texas’ death penalty statue violates the Constitution because it grants too much arbitrary discretion to prosecutors. As a result of this decision, Hawthorne has now been deemed unfit to hear a capital case:

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. [...]

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, [Judge John] Ovard still ruled that a “reasonable person” would have to conclude that Judge Hawthorne is too biased to preside over the case.

This is not law. Indeed, this is barely a mockery of law. If the state disagrees with Hawthorne’s decision, then it is free to appeal it. But when judges can be disqualified from hearing cases if they reach an unpopular decision than the justice system truly is rigged.

And this isn’t even the first time Texas’ court system used the threat of forced recusal against a judge who disagreed with the state’s execution policies. In 2010, Judge Kevin Fine declared the state’s death penalty statute unconstitutional because it was too likely to execute an innocent person. Fine eventually withdrew the opinion, however, after he was threatened with a forced recusal hearing of his own.

Lest there be any doubt, Texas accords far different treatment to judges who demonstrate potential bias in favor of killing criminal defendants. In 2007, Judge Sharon Keller, presiding judge on the highest criminal court in Texas, likely manipulated her court’s procedures to prevent a death row inmate from receiving a stay of execution from the United States Supreme Court. Although a state ethics panel initially gave Keller a “public warning” for her actions, an appeals panel later wiped away even this slap on the wrist.

Likewise, in 1994 Texas elected an unqualified attorney named Stephen Mansfield to its highest criminal court. Judge Mansfield had been disciplined for practicing law without a license in Florida and he was arrested for scalping tickets to the Texas-Texas A&M game on university property. He also was elected on a platform of promising harsher decisions in death penalty cases. Mansfield left the court after he decided not to run for re-election, but he never faced one sanction for his macabre election strategy.

But if one little trial judge dares to suggest that the state’s death penalty procedures are unconstitutional, she will be forced off capital trials because this view could only stem from unreasonable bias.

Via ThinkProgress.Org