TX Judge On Trial for Refusing to Accept Death Row Inmate's Filing for Stay

The ethics trial of Texas Court of Criminal Appeals Judge Sharon Keller began today in San Antonio. The alleged improprieties stem from her refusal to keep the court open past 5:00 pm so Michael Wayne Richard's lawyers could file their request for a stay of his execution later that night. Richard was executed hours later.

Keller is charged with five counts of judicial misconduct that could end her career. .... A Republican who has served on the court since 1994, Keller is the highest-ranking judge in Texas to be put on trial by the commission.

The last minute filing request by Richards' lawyers was the result of a decision by the Supreme Court that morning to hear the case of Kentucky v. Baze, challenging the three drug cocktail for lethal injections. [More...]

Her defense, according to her attorney Chip Babcock:

This whole case is about the confusion between the word 'court' and 'clerk,'" Babcock said. "There is no question the clerk's office closes at 5. That does not mean there are not after-hours filings."

Abel Acosta, a deputy clerk at the court, testified that he told Richard's legal team that he would not accept anything past 5 p.m. But he said he didn't think Keller had shut the door on Richard, since he knew that the man's lawyers could hand an appeal directly to a judge. Acosta didn't remind Richard's attorneys of that."We're not supposed to advise the people who are filing," Acosta said.

The phone calls between clerk Acosta and the legal team are important to the case. Here's a recap of the testimony today on the calls. Also testifying: Ed Marty, the Court of Criminal Appeals general counsel. A recap is here.

The case is being prosecuted by Mike McKetta, hired by the Commission on Judicial Conduct to prosecute Keller. A recap of opening arguments is here.

McKetta focused on the Court of Criminal Appeals’ execution-day procedures, which were not written down on Sept. 25, 2005 — the day Michael Richard was executed — but were known to all the judges on the court.

“The court this week will hear evidence on whether there was an intentional circumvention of the execution-day procedures, and if there was an intentional circumvention … what were the consequence of that,” McKetta said. “And was that a proper use of judicial power, or was that a misuse of judicial power?”

According to the court’s procedures, any communication — phone call, fax or pleading — about the Richard case had to be referred to Johnson, the judge assigned to the case, McKetta told the judge. However, he said, when Richard’s legal team asked to file motions after the court’s 5 p.m. closing, Keller chose to decline the request on her own. “You will hear evidence … that (Keller) did circumvent that execution-day procedure,” McKetta said.

CBS Legal Analyst Andrew Cohen writes today:

Texas has an opportunity through this process to take a stand against decades of heartless, unfair treatment of criminal defendants. There is simply no place in the criminal justice system for a judge who could ever think it was appropriate to close off an appeal like Richard's because it was going to be 20 minutes late.

We like to think that our judges should be automatons, completely devoid of human empathy and compassion, but the truth is we need them in the end to be just decent human beings. That's why even if you won't admit it to yourself you'd rather have Justice Sotomayor as your judge than Justice Keller.

Time Magazine has more on the Judge and the trial, and TalkLeft's past coverage is available here.

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  • Display: Sort:
    Removal from office (5.00 / 1) (#1)
    by Saul on Mon Aug 17, 2009 at 07:09:22 PM EST
    is all she will get.  If it was up to me she would get some jail time too.  To her everyone was guilty and deserve no mercy.

    All this happened while the SC wanted to check on all stay of executions.  Others on death row after Richard was executed were all allowed stay of execution.  

    But you know the old double standard.  Judges rarely get any jail time.

    The Rules (2.00 / 0) (#10)
    by KLY on Tue Aug 18, 2009 at 08:20:35 AM EST
    There are appellate rules for a reason.  How do we determine how many minutes past 5:00 we are going to allow.  Twenty minutes, two hours, 23 hours, two days.  Where do you draw the line.  There is a deadline for all filings and all responses at all levels of our judiciary.  Attorneys know this and to not meet a deadline, regardless of the reason, is malpractice on the part of the attorney.  Don't blame the judge for not holding the door open past the filing deadline.  

    Amazing story (none / 0) (#2)
    by Steve M on Mon Aug 17, 2009 at 07:13:35 PM EST
    I'm glad there are some consequences for all this.

    This is beyond appalling... (none / 0) (#3)
    by otherlisa on Mon Aug 17, 2009 at 07:33:14 PM EST
    I agree - jail time would be appropriate.

    the only consequence for judge keller, (none / 0) (#4)
    by cpinva on Mon Aug 17, 2009 at 07:35:44 PM EST
    I'm glad there are some consequences for all this.

    should she be found guilty, is that she'll become a darling of the "tie 'em and fry 'em" crowd. she'll make lots of money on the conservative speaker circuit, probably land a professorship at a texas law school, and write a book telling all about how horribly she was treated, all for following the rules.

    They asked for 20 minutes... (none / 0) (#5)
    by JamesTX on Mon Aug 17, 2009 at 07:40:31 PM EST
    and she said "we close at 5".

    Yes, she is the darling of the right, but this is going too far. If we give up even the pretense of due process, as people of her ilk would have us do in their certainty about their own superior moral reasoning, then we're done for (which we may be).

    Keller wasn't even (none / 0) (#12)
    by Chuck0 on Tue Aug 18, 2009 at 10:39:14 AM EST
    the duty judge that particular day. The duty judge was not even informed of the late filing. The duty has said repeatedly that had she been made aware, she would have accepted the appeal.

    IANAL, (none / 0) (#14)
    by JamesTX on Tue Aug 18, 2009 at 11:38:01 AM EST
    and if I were, I would probably not be aware of procedure for this magnitude of case. My understanding is that procedure (they should have contacted the duty judge) is her defense. But the extraordinary consequence of death requires extraordinary care, I would think, and someone should have pointed the people in the right direction. I am sure lawyers know more about this, and it may be a perfectly valid defense. Maybe so, technically. It shows some real disinterest in human dignity and life, though, and I am not sure people want that kind of person sitting on such a high court. They certainly have the right to hear about it, because it is public record. Perhaps it will help if people hear about it and understand exactly what she did. I suspect she knew exactly what she was doing, and the result was her intended result. She will be saluted by the right wing for her actions, but the action shouldn't be swept under the rug. If the lawyers didn't know what they were doing, then in a question of immediate life or death, I would think the judge should intervene. I don't care if what she did was legal. I don't care if she is exonerated (which she will be, I suspect). I just think the public should hear all about it.

    Defense Lawyers? (none / 0) (#6)
    by DaveOinSF on Mon Aug 17, 2009 at 09:07:59 PM EST
    1 - What were the defese attorneys doing all day that they could not have the appeal filed on time?
    2 - Could they have filed it with any judge?  If so, why did they give up after failing with Keller?

    Depending on the circumstances regarding the answers to (1) and (2), why are the defense attorneys not being charged with legal malpractice?

    charged with malpractice? (none / 0) (#7)
    by progrocks on Mon Aug 17, 2009 at 11:38:45 PM EST
    is it now a crminal offense?

    please read the sourced material (none / 0) (#8)
    by Jeralyn on Tue Aug 18, 2009 at 12:06:26 AM EST
    They were responding to a Supreme Court ruling that came down that morning and they had computer malfunction issues.

    If you read the case, (none / 0) (#13)
    by Chuck0 on Tue Aug 18, 2009 at 10:39:51 AM EST
    You'll find out that they had computer problems.

    If she is convicted ... (none / 0) (#9)
    by Andreas on Tue Aug 18, 2009 at 01:21:36 AM EST
    ... she probably also should be indicted for murder.

    Hooray for Justice! (none / 0) (#11)
    by Woody26764 on Tue Aug 18, 2009 at 09:24:06 AM EST
    What rights did this guy afford his victim? His own brother-in-law (and a jury) stated that he was "most certainly guilty". He had his day in court and was given due process. His execution date was known to his lawyers, yet they still procrastinated and wouldn't meet the deadline. Our court systems are clogged and our prisons are overcrowded with repeat offenders guilty of the most heinous crimes. We need more legal systems like Texas' and more judges like Keller.

    criticing the lawyers does not absolve the judge (none / 0) (#15)
    by Bemused on Tue Aug 18, 2009 at 12:32:57 PM EST
    Past thread

      This post and the comments pretty well sum up the arguments against the lawyers which are quite compelling, but does anyone really believe the judge should be excused for this because lawyer's were negligent?

       This is (make that was) a man's life.