A judge in the heart of the death penalty capital of America has taken a stand against capital punishment.

Texas state district Judge Kevin Fine ruled in a case Friday that the death penalty could be considered unconstitutional, because innocent people have been executed.

Fine, who presides in the Texas County that has more death row convictions than any other, ruled during a pre-trial motion of a capital punishment case that the death penalty is unconstitutional. He immediately came under attack from Texas Gov. Rick Perry.

"Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?" Fine said, according to the Associated Press. "I don't think society's mind-set is that way now."

According to the Associated Press:

Fine said there was no precedent to guide him in resolving the issues raised by defense attorneys in a case involving a man accused of fatally shooting a Houston woman and wounding her sister during a robbery in front of their home in June 2008.

Attorneys for John Edward Green Jr. argued Texas' death penalty statute is unconstitutional because it violates their client's right to due process of law under the 5th Amendment since hundreds of innocent people around the country have been convicted and sent to death row and later exonerated.

Fine said in his ruling Thursday that it is safe to assume innocent people have been executed.

Unfortunately, especially in a place like Texas, that is more than a safe bet.

The Innocence Project has cleared 251 people using DNA evidence. Seventeen of those people were on death row. Approximately 70 percent of those exonerated are minorities.

The numbers of people whose guilt was in doubt at the time of their executions is astonishing. In fact, there have been pardons issued decades after people were executed. The case of Cameron Willingham has also received a lot of attention lately.

Willingham was sentenced to death and later executed, after police accused him of setting a fire at his Texas home that killed his three children. Four national arson experts have concluded that the evidence used to convict Willingham was flawed and that the fire could have been accidental.

"I am an innocent man, convicted of a crime I did not commit," Willingham said as he was strapped to his deathbed. "I have been persecuted for 12 years for something I did not do."

When the disputed evidence was put before Perry, prosecutors cited other questionable evidence, such as the testimony of a jail house snitch and neighbors who initially gave sympathetic accounts of Willingham's behavior during the fire but later said he didn't look like he was trying hard enough to save his children, after he was accused of the crime.

How many Willingham-type cases are there around the country, especially involving minorities and the poor?

Prosecutors argue that the arguments made to Texas Judge Fine, regarding due process, have already been ruled upon by higher courts.

"The Texas death penalty statute is constitutional. We have had executions this year with due process raised. I see this as unnecessarily delaying justice," said Harris County District Attorney Pat Lykos.

But Fine is just looking at the evidence we have before us. Based on issues, such as class, race, prosecutorial misconduct, witness misidentification and the propensity for humans to make mistakes, especially when caught up in emotion, this nation surely has put innocent men and women to death..

Given our inability to get it right 100 percent of the time and the fact that we probably get it wrong more than people think, maybe we should not be in the business of executing people.

"So I am now charged with interpreting such evolving standards and I'm called upon to assess the current state of our society's standards of fairness and ordered liberty in light of what we as a society now know. And that is that we execute innocent people. This is supported by the exoneration of individuals off of America's death rows," Fine said.