Judge Points Fingers

Responding to charges brought against her by the State Commission on Judicial Conduct relating to the execution of Michael Richard, Court of Criminal Appeals Presiding Judge Sharon Keller says the blame for Richard's final appeal not being heard rests not on her but on Rich­ard's lawyers.

Keller is charged with a "willful and persistent failure" to follow the court's execution-day procedures, violating the Texas Consti­tu­tion and Texas Code of Judicial Conduct and casting "public discredit" on the state judiciary, according to the CJC charging document handed down Feb. 19. (And this week, Texans for Public Justice filed complaints against Keller alleging she failed to disclose millions of dollars worth of property holdings. The complaints are based on the findings of an investigation by The Dallas Morning News.)

At issue is whether Keller blocked Rich­ard's attorneys from filing a last-minute appeal on Sept. 25, 2007, challenging as unconstitutional the lethal injection method of execution. Earlier that day, the U.S. Supreme Court had accepted an appeal in a Kentucky case challenging the method. As it happened, the Supremes' acceptance of the case created a de facto moratorium on executions while the case was pending. As such, it is likely that Richard would have been granted a stay.

Richard was scheduled to die at 6pm that night, which put his lawyers with the Texas Defender Service on an accelerated timeline to draft and file the final appeal – a situation that grew more complicated when computer problems delayed the lawyers in getting their paperwork to the court. They say they called the Court of Criminal Appeals clerk to say the appeal would be delayed, but they were told that Keller had refused to extend the deadline, declaring that the court closed at 5pm. Rich­ard was subsequently executed.

According to the Commission on Judicial Conduct charges, when the lawyers called to say their filing would be late, the court's general counsel, Ed Marty, called Keller at home (she'd left court early that day to meet a repairman) to ask if the filing could come in late. According to the CJC, Marty asked if the court could stay late, but Keller contends that Marty actually asked whether the clerk's office could remain open past 5pm, the time at which it routinely closes. Either way, the CJC charges that Keller knew she was not the judge assigned to handle Richard's appeal and that it was her duty to refer all questions about the case to that judge, Cheryl Johnson. Indeed, Johnson had stayed late that evening, in anticipation of last-minute execution-related business. Kel­ler's "response to Mr. Marty failed to direct that he relay the communication to ... Judge Johnson," reads the charging document. "Instead, Judge Keller gave instructions to Mr. Marty that had the effect of closing any further access by Mr. Richard's lawyer with the CCA" concerning a possible stay.

In a March 24 response to the charges (download PDF), Keller's attorney Chip Babcock wrote that Marty never asked Keller about the court remaining open but asked instead only about the clerk's office staying open past 5pm. Keller "did not, and could not have, if she had wanted to, close access to the court ... a fact well known to [Texas Defender Service]," he wrote.

Neal Manne, TDS' counsel, said in a statement that Richard's lawyers properly followed the court's execution-day procedures. "Nothing in [Keller's] response changes the fact that Judge Keller knowingly broke the rules," he said. "The commission has properly focused on Judge Keller's conduct and has not in any way suggested that [TDS] acted improperly or was at fault."

A date for a hearing on the charges has not yet been set.