20 Lawyers File Complaint Over Courthouse Closure in Texecution Stay Request

Twenty Texas lawyers have filed a formal judicial complaint against Presiding Judge Sharon Keller for closing the courthouse at 5:00 pm the day of a scheduled execution. (Background here.)

The complaint to the State Commission on Judicial Conduct says Keller improperly cut off appeals that led to the execution of Michael Richard on Sept. 25 despite the fact the U.S. Supreme Court earlier in the day had accepted a case on the propriety of lethal injection, which had direct implications for Richard's execution.

"Judge Keller's actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution," the complaint states. "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 the state."

Jim Harrington of the Texas Civil Rights Project which is representing the lawyers, says:

Keller's actions were "morally callous, shocking and unconscionable for an appellate judge."

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    Defense Attorney Experience (5.00 / 1) (#13)
    by helverings nag on Thu Oct 11, 2007 at 12:09:33 PM EST
    I've been a lurker who has finally decided to post. At least one of the defense attorneys was David Dow, a University of Houston Law School professor who has worked on a number of capital cases here in Houston, Harris County, Texas. That alone makes him one of the most experienced death penalty attorneys in the country. I've heard that the brief was 108 pages long, not unusual for an immportant appellate document (I don't do capital cases, but am an appeallte attorney). Appellate briefs are heavily coded, including case references, table of contents, document format, etc. In my 15 years of experience, these briefs FREQUENTLY crash a computer. (Given the time, I save multiple backups on different computers because the computers "eat the homework" so frequently.) To draft a 108 page brief within the approximately six hours that the defense attorneys had from the time cert issued and the local court closed meant that they had to have anticipated the argument and had somethng drafted. A handwritten, one page document wouldn't have sufficed because they only got the one bite of the apple to get a judge to stay the case - not an easy proposition in Texas. And don't get me started about trying to copy the at least five sets of the 108 page brief that would have to have been filed (the original, plus court and service copies). Copying a document that long would take at least forty-five minutes to an hour. In short, something may have happened in the communication between counsel and court, but counsel didn't drop the ball in preparation.

    First (none / 0) (#14)
    by Deconstructionist on Thu Oct 11, 2007 at 12:27:20 PM EST
     I find it impossible to believe that  108 page word processing documents frequently crash computers of more recent vintage than say 1985. I've had many different computers over the the last 20 years and even the old old old 40 Mb, 256 mb ram with an 8086 processor were pretty reliable for basic word processing.

      And, if I did have a computer system that I knew was prone to failure I would not only have important documents backed-up electronically but I  would have a hard copy available of all the drafts including of course  the most recent version. As I said it was a matter of PUBLIC RECORD tha Supreme Court conference on Baze was set for 9/24 AND there is nothing in the order accepting Baze that was needed to prepare or finalize the motion for a stay or the accompanying memorandum. The filing should have been ready and I find no justification for it not to have been ready or for the lawyer to have first contacted the court and 4:40 PM on the day of execution with a belated request for extension.

      Moreover, if the choice is between filing NOTHING and filing an even  much  less than ideal brief it isn't hard to determine which is the better idea. We know the result of filing nothing and it's hard to imagine a worse outcome, isn't it.

      Whether it was the attorney's first or 1000th death penalty case this was a grievous error. That does not in any way excuse the judge but I see no reasonable excuse for the lawyer'r performance.


    These aren't simple word processing documents (5.00 / 1) (#18)
    by helverings nag on Thu Oct 11, 2007 at 01:52:34 PM EST
       Breifs, especially appellate briefs, include quite a bit of special coding to comply with legal writing style conventions and court formatting rules. (This heavy coding is why quite a few attorneys (and most courts) still use WordPerfect. Word just can't handle the demands.) Most of my crash experience has happened when trying to stack codes (or accidently stacking codes) in a document, for example, italicizing a case citation to comply with legal writing style, marking the citation to be included in the table of authorities, and bookmarking that same citation for later reference all at the same time. This can cause the document to freeze up at the point where the coding gets hincky. (I don't know why this happens. I'm not MIS or a computer person. I'm just an attorney who does quite a bit of word processing.) At work I use a two year old PC to which we've added after market extra RAM and drive space. I use a six month old PC at home. I still have problems. It's a b----, but not unusual. I'd welcome any other ideas you may have to fix ths problem.
       As your docket entry indicates, SCOTUS issued cert on September 24th. There were four issues in the petition and the September 24th order was a blanket grant that would have included all four issues. But on October 3rd, the day the Texas motion and brief had to be filed, the Supreme Court amended the September 24th order to grant cert to only the first three issues. I'm almost certain that the amendment was the cause of the last minute rush. When the Supreme Court decided to accept only some of the grounds for cert, the defense had to amend their argument. (The brief could also have been affected by another case related to Baze, Taylor v. Crawford, Docket No. 07-303. Just guessing on this one based on a post at SCOTUSblog).
       Anyway, thanks for a reply to my first posting.

    Thanks for de-lurking (5.00 / 1) (#19)
    by Jeralyn on Thu Oct 11, 2007 at 02:05:53 PM EST
    And I agree with what you wrote, particularly about the time constraints, the coding and the time it takes to make the requiisite copies. (Thank goodness federal district courts are now all e-filing.

    FYI, Deconstructionist usually takes a minority point of view here. He doesn't seem to mind. Usually he does so without being hypercritical or going into attack mode. Sometimes, although not often, I agree with him.

    As I've said many times here, it's capital defenders like the ones in this case, not Dick Wolf's law and order prosecutors, who are doing "G-ds work."  


    Thanks, No Offense Taken (5.00 / 1) (#22)
    by helverings nag on Thu Oct 11, 2007 at 03:46:48 PM EST
      I thought I had said all I had, but then Jeralyn replied to me. Wow! It was a bright spot in a day at home with a sick son. (My friend says I should save your reply with my e-mail from Helen Thomas!)
       No offense taken by any comments. I have teflon feelings, it's impossible to insult me, and I enjoy a spirited exchange of ideas. Now that my feet are wet I look forward to future posts.
      Here's an "amen" for the capital defenders.

    doing God's work (none / 0) (#20)
    by Deconstructionist on Thu Oct 11, 2007 at 02:34:53 PM EST
    is not synonymous with doing the work well.  I see no possible basis for arguing the lawyers did well here. I'm not accusing them of any nefarious motives. i'm just pointing out that it is inexcusable not to have been fully prepared to fiile the motion for a stay and that none of the offered excuses hold water. As I said the motion and memo could have and should have been complete and ready to file regardless of whether Baze was accepted, not accepted or simply no decision was made by the U.S. Sup. Ct. by the time the motion was due.

      It's simply false to suggest that the mere fact the S.Ct. issued an order stating it would hear Baze required extensive last minute work that could not and should not have already been done. The lawyers for richard knew or should have known the issues presented in Baze and they knew or should have known the arguments for petition in Baze, against the petition in Baze and any arguments they would raise that were noit raised in baze or issues they wished to raise differently,

      The whole we needed to digest Baze and write new material because the Supreme Court accepted Baze is either a red herring  or indicative of appalling lack of diligence in preparation because as I showed above all the filings in Baze were made weeks in advance of Richard's execution date. The only new information was a summary order staing the court would hear the case and setting a schedule.

      Yes, writing a brief or memorandum of law can be time consuming. That's why it is inexcusable to wait until the last minute in a death penalty case where your client is scheduled to be executed.


    I've been writing legal documents for (none / 0) (#21)
    by Deconstructionist on Thu Oct 11, 2007 at 03:05:19 PM EST
    over two decades. I know lawyers who filed them on time in  the days of manual typewriters and carbon paper or an original hard copy had to be sent to professional printers. A failure of technology is not an acceptable excuse when you are acting in an important matter on someone else'e behalf and veryt cheap and very easy methods of preventing such things exist.

      Your new argument makes even less sense than your previous ones. The order of the 25th did not exclude the 4th issue but that means nothing. There obviously would have been no harm in the Texas lawyers in presenting one issue that the Supreme Court declined as long as they did present the three that were accepterd and they wwere or should have been fully aware of all the issues because as i said the partirs' submissions in Baze had all be filed well before the execution date. Moreover, OBVIOUSLY neither the lawyers not the Texas Appeals Court would have known of the clarifying orderprior to the execution because it did not yet exist.


    Counsel dropped the ball my friend, (none / 0) (#15)
    by sarcastic unnamed one on Thu Oct 11, 2007 at 12:52:02 PM EST
    both in preparation and execution.

    I'm sure they are good people, good attorneys and fought like hell for Richardson, but they failed him in his final hours.

    I recognize that we all have the luxury of being Monday Morning quarterbacks and I'm sure his counsel was dealing with a massive work load in addition to the Richardson case, but just as there is no excuse for Keller's actions, and as difficult as it may be for Dow and Co, they need to accept that are not without blame either.

    I hope they look honestly inward and recognize their failings in this case, and use that analysis to move forward and be better in the future.

    It's not easy, but that's how we all grow as humans.


    i'd have to agree with decon, (none / 0) (#16)
    by cpinva on Thu Oct 11, 2007 at 01:17:46 PM EST
    and go one step farther: if my pc was that  knowingly unreliable, i'd get a new one, capable of handling the strain imposed by documents of this size. a document of 100 pages just isn't all that big, really. it might take up 10% of a cd.

    i routinely construct reports of 50 or more pages, and neither my pc nor my laptop has any problems with them.

    as far as the copies go, they could have brought the disk into the nearest kinkos, and had 5 copies within 20 minutes, bound.


    Keller's losing the benefit of my doubt (none / 0) (#1)
    by roy on Wed Oct 10, 2007 at 03:03:32 PM EST
    I still wonder whether the request to stay open was relayed in such a way that she knew it was life and death, but it seems she is at best heartless:

    "You're asking me whether something different would have happened if we had stayed open," Keller said, "and I think the question ought to be why didn't they file something on time? They had all day."

    She already lost mine. (none / 0) (#2)
    by sarcastic unnamed one on Wed Oct 10, 2007 at 03:22:41 PM EST
    When she told the defense that the courthouse closes at five, she described it as "a statement rather than a decision." What a cold bitc...oops, almost let out a sexist word there.

    Anyway, that said, wtf is up w/the defense? Keller "stated" "we close at 5." and the defense meekly closed their legal pads and went home to dinner while their client ate his last meal?!

    There were other judges they could have called, including the one actually specifically assigned to handle any of Richard's last-minute challenges.

    There are any number of other people w/in the courthouse they could have called. No one literally or metaphorically pounded on the court house doors?! Does the Gov not have a phone?

    They may well have tried a lot of things that haven't been reported on, so I may be way off-base, but from what I've been able to google it sounds like the defense didn't do jack that night that they could have.


    I said in the first thread on this that I (none / 0) (#4)
    by Deconstructionist on Wed Oct 10, 2007 at 03:45:54 PM EST
      have serious questions about the performance of the lawyers in this cas, but regardless of the questions about how on Earth the lawyers could fail to have had a motion for stay prepared and ready to file prior to the very last second,  the judge knew or should have known it related to an execution scheduled for that evening her action is inexcusable.

      Now, the lawyers' "computer ate my homework" excuse is extremely hard to believe but, even assuming gross negligence by the lawyers, in a matter of this magnitude the lawyers' lack of diligence should have been overlooked.


    Yep, plenty of lame-o's (none / 0) (#5)
    by sarcastic unnamed one on Wed Oct 10, 2007 at 03:59:01 PM EST
    involved in this story.

    Yep (none / 0) (#6)
    by Deconstructionist on Wed Oct 10, 2007 at 04:10:59 PM EST
     The lawyers had to be aware that Baze might be accepted by the Supreme Court and should have had a motion and memorandum prepared which was based on that happening prior to the execution as they should also have had ones ready based on either the Supreme Court failing to accept Baze or having not yet ruled on accepting the petition.

      The argument that they could not get it filed because they had to decide legal strategy  and do extensive drafting all after the Supreme Court's action is mind boggling. That while handling a death penalty case they had no back-up plan for the eventuality that the system containing the document malfunctioned is equally astounding.  Heck, simply take a pen and write a bare bones motion citing the fact the supreme court had just accepted a case based on very similar facts and go to Kinkos for your damn copies if you're one of the many firms that don't own a copier.



    Do you really think she didn't know it was (none / 0) (#3)
    by scribe on Wed Oct 10, 2007 at 03:23:26 PM EST
    a capital case?  I'd suspect they might even have special docket numbers....  And, for that matter, a simple scheduling matter like asking to hold the doors open would, in the non-capital case, surely be handled by some lower-level non-judge functionary.

    Naaah.  IMHO, she knew exactly what she was doing.  


    Supreme Court docket (none / 0) (#7)
    by Deconstructionist on Wed Oct 10, 2007 at 04:42:18 PM EST
    Just so people understand below is from the US Supreme Court docket in Baze and Bowling  v. Kentucky . The prtition was filed with the court over 2 months prior to the Texas execution date and the last supplemental brief filed nearly 3 weeks before the execution. Also, the docket entry of 8/30 states the conference considering  cert petition would be held 9/24.

      ALL of the arguments for or against would be contained in the parties submissions which the Texas lawyers could easily have obtained long before the executiuon date. Moreover, when the Court accepts a cert petition for argument its order basically just states that fact (and any limitations on the issues presented it will consider) and the schedule. The order accepting the petition does not make any finding of fact or legal holdings, so there is nothing about the the case being accepted on the date of the execution that prevented these Texas lawyers from being fully prepared prior to that and their claims about having to figure out legal strategy makes no sense, and as I  said the computer failure claim is amazing.


    Jul 11 2007 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis
    filed. (Response due August 20, 2007)

    Aug 20 2007 Brief of respondents John D. Rees, Commissioner, Kentucky Department of Corrections, et al. in opposition filed.  

    Aug 21 2007 Reply of petitioner Ralph Baze, et al. filed.  

    Aug 30 2007 DISTRIBUTED for Conference of September 24, 2007.

    Sep 6 2007 Supplemental reply brief of petitioner Ralph Baze, et al. filed. (Distributed)

    Sep 7 2007 Supplemental brief of petitioners Ralph Baze, et al. filed. (Distributed)

    Sep 25 2007 Motion to proceed in forma pauperis and petition for a writ of certiorari GRANTED. The brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Monday, November 5, 2007. The brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Monday, December 3, 2007. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 28, 2007. Briefs of amici curiae are to be filed with the Clerk and served upon counsel for the parties on or before 2 p.m., 7 days after the brief for the party supported is filed, or if in support of neither party, within 7 days after the petitioner's brief is filed.
    Oct 3 2007 The order granting the petition for a writ of certiorari is amended as follows: The motion of petitioners for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to Questions 1, 2, and 3 presented by the petition. The brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Monday, November 5, 2007. The brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Monday, December 3, 2007. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 28, 2007. Briefs of amici curiae are to be filed with the Clerk and served upon counsel for the parties on or before 2 p.m., 7 days after the brief for the party supported is filed, or if in support of neither party, within 7 days after the petitioners' brief is filed.  

    Where's Hannah Arendt? (none / 0) (#8)
    by kovie on Wed Oct 10, 2007 at 04:43:04 PM EST
    A pending execution, and everyone involved appears to have treated it as a "just doing my job" sort of situation--and fallen back on this as a moral "defense". As if that gets them off the hook. The casualness with which so many public officials seem to view human life today is simply breathtaking.

    i'm going out on a limb here, (none / 0) (#9)
    by cpinva on Wed Oct 10, 2007 at 07:02:22 PM EST
    but i'm going to guess judge keller is an elected judge, not one with a lifetime appointment.

    this would fully explain her rationale, if that's the case.

    She is elected (none / 0) (#11)
    by Deconstructionist on Thu Oct 11, 2007 at 09:21:05 AM EST
     and she is in a state where the death penalty is popular, but I wouldn't go too far with that. I've dealt with both elected and appointed judges and anectdotally I don't see a high correlation between  "law and order" or "hanging judge" mentality and election or "civil liberies" and "bleeding heart" mentality with appointed ones. Also, it;s hard to imagine that 5 years from now having simply arranged to receive a late filing would hurt her reelection chances. She's probably just a mean %%#$.

      Also anectdotally, the one thing I do find is that elected judges-- at least those who intend to run again--  are often more solicitous of lawyers' goodwill with respect to things such as scheduling and timeframnes because lawyers are the most active particpants and most frequent donors  in judicial campaigns. Most judges won't "cheat" on the merits to curry favor but on things like this many elected judges might be more likely tocut the lawyers a break than an appointed one who will not need help in the future.


    anectdotally, (none / 0) (#12)
    by cpinva on Thu Oct 11, 2007 at 09:47:35 AM EST
    i've not much faith in anectdotes. that said, both methods (election vs appt) have their plusses and minuses. appointed judges, not having to concern themselves with popularity, just seem to be more objective, at least in popular fiction. whether that's actually the case, or just appearance, i've not a clue.

    by definiton, elected judges would seem to have to be concerned with the popularity of their decisions, assuming they want to be re-elected.

    it's the appearance of a conflict of interest that bothers me.


    Impeach Sharon Keller (none / 0) (#10)
    by persiancowboy on Thu Oct 11, 2007 at 02:11:41 AM EST
    To close at 5 PM and refuse to accept an appeal by a person about to be executed is a violation of judicial responsibility. When a person is about to be executed, our state's highest criminal court needs to remain open for business. Keller should resign or be impeached and removed from office for her unethical conduct. This is not the first time that Keller has behaved like a buffoon. According to Tom Price, one of the other conservative judges on the Texas Court of Criminal Appeals, as far back as 2001 she made Texas' highest criminal appeals court "a national laughingstock." As long as Keller is in office, the people of Texas can not be sure that justice is being done with integrity.

    Any concerned Texan can file a complaint with the State Commission on Judicial Conduct by going to: www.scjc.state.tx.us

    another (none / 0) (#17)
    by Deconstructionist on Thu Oct 11, 2007 at 01:19:17 PM EST
    point which makes the defense team's justifications implausible (to be kind) is that the execution was scheduled for 6:00 PM. If the 108 page memorandum in support of the motion for a stay was to be filed at 5:20 PM it defies belief to think that a it would be possible for a judge to read and digest 108 pages and decide whether to issue an order granting a stay in 40 minutes.

      If a judge was  to grant the stay at that stage it would not be because a very verbose document was fully considered and found persuasive. It would be because the judge was inclined to think the basic issues concerning whether the method of lethal injection employed violate the 8th present questions with sufficient merit to delay the execution for more complete consideration of the issues and the fact the Supreme Court had accepted Baze presenting very similar issues.

      The length and complexity argument was  not something that changed in any way based on Baze and more obviously, if it was truly so complex as to take 108 pages to explain it would be foolish to submit it that late even if it were accepted.


    More funding needed in Texas (none / 0) (#23)
    by Scott Cobb on Thu Oct 11, 2007 at 06:47:38 PM EST
    Many capital defenders in Texas do a great job, but they are underfunded. If news reports are accurate that a computer break down contributed to Richard's lawyers needing an extra 20 minutes to get the appeal to the Texas Court of Criminal Appeals, then part of the blame can be placed on funders who have neglected Texas non-profit organizations working on the death penalty and instead spent money in states that do not even have the death penalty. I hope that one outcome of the Richard's case will be that more funds will now be directed to Texas, so that lawyers working on death penalty cases for non-profit organizations can at least upgrade their computer equipment, and even maybe have enough money to properly investigate their clients' cases in preparing a writ of habeas corpus.

    As this article relates, there needs to be more money invested in Texas by foundations and national organizations who work against the death penalty. Instead of Texas, funders are wasting money in Wisconsin and Iowa, two states that do not even have the death penalty.

    Also, Texas needs a statewide Office of Public Defenders for Capital Cases to handle death penalty cases from initial trial through the appeals process, or at least a statewide Office of Capital Writs. There was a bill in the last session of the Texas Legislature to create an Office of Capital Writs to help death row inmates file petitions for writs of habeas corpus. The bill passed the Texas Senate 30-0, but failed in the House. Perhaps more funding to Texas non-profits from foundations and national organizations could have helped advocates convince the House to pass the bill.

    The point about private foundations (none / 0) (#24)
    by Deconstructionist on Fri Oct 12, 2007 at 09:52:26 AM EST
      directing resources where the need is more critical obviously makes sense, but (short of abolishing the death penalty) it is up to the States to provide funds for adequate representation and to define "adequate" properly.

     I have little doubt that Texas fails to provide the level of resources I believe necessary but i also don't think that seems to be the cause of this breakdown. The lawyers  were not as diligent as they should have been and Judge Keller should have overlooked the lawyers' neglect and allowed the late motion to be filed and if she wanted to impose sanctions should have fined the lawyers the cost of overtime, but the client should not have been prejudiced in the most severe manner possible. The law abhors a procedural default in all cases and to impose an irreversible one in the most serious possible case is reprehensible. I would hope that even most people who both  support the death penalty generally and believe Mr. Richard should ultimately have been executed in this specific case would agree with that.