Executed Inmate's Wife Sues Court of Criminal Appeals Judge Keller

Suit argues Court of Criminal Appeals Presiding Judge Sharon Keller violated Michael Richard's due process rights by refusing to hear his appeal only because it was filed after 5pm, an arbitrary deadline set by Keller

The wife of executed inmate Michael Richard is suing Court of Criminal Appeals Presiding Judge Sharon Keller, arguing that Keller violated Richard's civil rights and the Constitution, causing Richard's September death by lethal injection. In the federal lawsuit filed Nov. 7, 43-year-old Marsha Richard argues Keller violated her husband's due process rights by refusing to hear his appeal only because it was filed after 5pm, an arbitrary deadline set by Keller.

On Sept. 25, Keller closed the courthouse to Richard's 11th-hour appeal challenging the constitutionality of the tri-chemical method of lethal injection. Richard's attorneys sought to file the appeal in response to the U.S. Supreme Court's decision that day to review two Kentucky inmates' challenge to the tri-chemical method. The appeal was delayed, however, because of computer problems; at the time, the court did not accept any e-filing, even in life-and-death cases. Although Richard's attorney David Dow, of the University of Houston Law Center, told the court he would need only about 20 additional minutes to get the appeal to the court, Keller refused. "We close at 5," she told reporters. Keller's decision to refuse Richard's appeal meant he was, in effect, blocked from appealing to the Supremes, who likely would have granted his stay. Instead, he was executed – the only inmate executed in the U.S. since the high court announced it would review the constitutionality of the lethal injection method.

Marsha Richard's federal lawsuit names Keller in her individual and official capacity, noting that she is not afforded any immunity from the suit because her actions were "without any authority whatever" and were blatantly unconstitutional – indeed, the court has "previously" considered appeals past the alleged 5pm deadline, Richard argues. "No law or rule gave ... Keller the authority to close the court to prevent the appeal," reads the suit. Keller, who has served on the court since 1994, "has participated in hundreds of death penalty appeals and knew the consequence of her actions would be the death of Michael Richard without due process review."

Keller's actions (or inaction) in the Richard case prompted 19 attorneys to sign on to an official complaint filed with the Texas Commission on Judicial Conduct, and nearly 300 attorneys, former judges, and law professors joined a petition asking the CCA to adopt rules for e-filing. Last week the court did just that, allowing lawyers to file electronically in death penalty cases. Marsha Richard's attorney, Randall Kallinen, told the Houston Chronicle that the court's new e-filing rule is "an admission by the [court] that what happened was wrong," but he said it "doesn't fix the problem of someone ordering the stopping of filings." As such, Richard's suit seeks a federal order barring Keller, the CCA, or its clerk from refusing any emergency death penalty filings.

Marsha Richard, who married Michael in November 2002, also seeks unspecified monetary damages and attorney fees.

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