The Austin Chronicle

https://www.austinchronicle.com/news/2007-10-19/551973/

Closing Time? Attorneys Call for Justice's Head

By Jordan Smith, October 19, 2007, News

Nineteen attorneys from across Texas have signed on to a formal complaint with the state's Commission on Judicial Con­duct, seeking the reprimand – or ouster – of Court of Criminal Appeals Presiding Judge Sharon Keller, who they argue violated not only the Texas Code of Judicial Conduct but also the Constitution's Due Process Clause by refusing to accept an appeal for an emergency stay filed Sept. 25 on behalf of condemned inmate Michael Richard. Keller's decision to close the courthouse doors before Richard's attorneys could file the 11th-hour appeal meant Richard was blocked from appealing to the U.S. Supreme Court. Instead, he was executed. "Judge Keller's actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution," Texas Civil Rights Project Director Jim Harrington wrote in the complaint, filed with the commission on Oct. 10. "Her actions also brought the integrity of the Tex­as judiciary and of her court into disrepute and was a source of scandal to the citizens of Texas."

Richard's lawyer David Dow, of the Texas Innocence Net­work at the University of Houston Law Center, was seeking a stay of execution for Richard based on the U.S. Supreme Court's decision that morning to hear an appeal filed by two Kentucky death row inmates challenging the constitutionality of the tri-chemical lethal-injection execution method currently used by 37 states. Richard was slated to be executed that night at 6pm, meaning Dow had less than a day to compose and file the appeal with the CCA – Texas' highest criminal appeals court. The court would then have the choice of either granting Richard a stay or denying it, which would allow Dow to appeal to the Supremes. But Keller refused to accept the appeal at all, meaning that Dow was, in effect, blocked from seeking high court intervention.

Keller told the San Antonio Express-News she refused the appeal because it wasn't filed with the court by 5pm – allegedly, the court's standard deadline. Dow told the daily that he'd had computer problems, which delayed the filing. Amazingly, the court, which has statewide jurisdiction, does not accept any e-filing – even in life-and-death cases. Dow said he called the court to explain his situation; in all, he said he would have needed just 20 additional minutes to get the appeal filed. On Oct. 4, the Express-News reported that Keller "voiced no second thoughts" about her decision to slam the door on Richard: "You're asking me whether something different would have happened if we had stayed open ... and I think the question ought to be why didn't they file something on time," she said.

Practically speaking, it is almost certain that "something different" would have happened had Keller decided to wait the extra half-hour: Richard likely would have been granted a stay by the Supremes, who likely would have understood the significance of continuing to execute inmates while the legality of the execution method was in question. In fact, not 24 hours later, on Sept. 26, the high court granted a stay for condemned Texas inmate Carlton Turner Jr. after the CCA denied his appeal. "Justice should be both fair and competent, and here it was not," Austin attorney and legal ethics expert Chuck Herring told reporters last week. "And the result was that a man was killed on a day that he should've lived."

Keller claimed she was unaware that Dow had encountered computer problems and would need more time to get the appeal filed – but that's either a lie or it indicates a serious internal communication problem at the court. Although Keller and CCA general counsel Ed Marty have said that the 5pm deadline is standard for the court, it doesn't appear that the other CCA judges knew anything about the supposed rule. Several justices stayed late at work that evening in anticipation of the last-minute appeal; and Judge Cheryl Johnson, who was assigned to handle the Richard case, had no idea that Keller set the clearly arbitrary 5pm deadline. Johnson told the Austin American-Statesman that she was "dismayed" by Keller's decision. "And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings."

In addition to refusing last-minute appeals, Keller's office told the Chronicle that the judge is now declining to "accept any calls" regarding her actions in the Richard case. Similarly, Marty did not return calls requesting comment, nor did Judge Tom Price to whom the Chronicle was referred for comment. (Interestingly, Price dissented from the court's decision last month to deny Turner's stay, opining that he didn't understand why the court would be willing to allow executions to go forward when the legality of the method was in question.) As such, at press time it was unclear whether the 5pm deadline – or, perhaps, the Keller Rule – is in fact standard procedure at all; judging by Johnson's response, it's hard to imagine that it is. Indeed, it is standard practice for courts to remain ready to accept such last-minute death-penalty appeals. University of Texas Law professor Jordan Steiker, who teaches constitutional law and is an expert in death penalty jurisprudence, said he doesn't know of any other court handling death row appeals that claims such a deadline. "The decision by the [CCA] to close its doors follows in a long line of resistance by the court to constitu­tion­al norms," he said, "and what is often said of boxing is certainly true for this court – it is a court without an eye left to blacken."

Harrington has also filed a grievance with the Texas Bar Association, seeking a revocation of Keller's law license. And on Oct. 15, state Rep. Lon Burnam, D-Fort Worth, penned a separate complaint to the commission, urging the commissioners to take "prompt and appropriate disciplinary action" against Keller, including "serious consideration" of removing her from office. "It is simply unconscionable and unacceptable for any officer of the court to close the doors of the court when a pleading for a man's life is known to be on the way," Burnam wrote.

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