Judge Keller stated in her response that "there were no written Execution-Day procedures" on the date in question. She said the procedures that existed at that time were not put into writing until November 2007.
Judge Keller stated that she was not the judge assigned to Mr. Richard's case and that she did not know who was. She said that it was General Counsel Ed Marty's job to assign duty judges.
She also claims that Judge Tom Price drafted a dissenting opinion "in anticipation that Richard might file something with the [Court of Criminal Appeals)..." She also said Judge Price anticipated that a majority of the judges would deny Mr. Richard's appeal if it were filed.
Judge Keller says she received a call from Mr. Marty with a question about when the clerk's office closed. She said she was aware that pleadings had been filed in the past after hours on execution days - only not with the clerk.
She said she did not reveal her conversation with Mr. Marty to the other judges the following day because she assumed they already knew about it.
Her response also indicates that the two individuals whose writs were accepted by the U.S. Supreme Court, had their appeals denied and were executed within a week of Mr. Richard's execution.
Judge Keller pointed out that, at the time of his execution, Mr. Richard had had two trials, to direct appeals, two state habeas corpus proceedings and three federal habeas corpus proceedings and had not once, prior to the filing in question, raised the issue of whether the method of execution used in Texas, lethal injection, was unconstitutional. She said the Commission's assertion that Mr. Richard "was not accorded 'access to open courts or the right to be heard according to law'" was "patently without merit."
Judge Keller alleges that a staff member of the Texas Defender Service called the deputy clerk at 4:45 pm asking if the clerk's office would remain open past 5:00 pm. Since state employees in the CCA are off the clock at 5:00 pm (nice work, if you can get it), and since everyone knew that, the TDS should've checked the blue pages of the phone book to find out which judge was in charge of Mr. Richard's case and should've contacted that judge directly.
Judge Keller also disputes the contention that the TDS was having computer problems that day. She said that TDS could have filed a handwritten pleading with the court, had they chosen to do so.
She casts blame for the fiasco on General Counsel Marty, saying that he should have informed TDS who the duty judge was and that he should have informed the duty judge of the request. She also throws out the Houston Chronicle's piece this past Sunday about attorneys who failed to file pleadings on time in nine death row appeals (see what my colleague, Houston criminal defense attorney Mark Bennett had to say about it).
While I agree that Mr. Marty deserves some blame in this affair, Judge Keller was, and is, the presiding judge of the CCA and, with that title, goes some responsibility. Ultimately she is responsible for what happens in that court and her assertion that she did not know who was assigned to Mr. Richard's case sounds patently absurd. I also find it interesting that she uses the unconscionable errors of other attorneys to excuse her own behavior that fateful afternoon. And while Mr. Richard had availed himself of the courts on many prior occasions, her decision that day denied him access on the eve of his murder at the hands of the State of Texas.
The most troubling of Judge Keller's allegations, however, is that Judge Price authored a dissent before any pleading had been filed. Is Judge Price psychic? Even though he might have anticipated counsel's arguments, his actions indicate that he had made up his mind without even considering Mr. Richard's appeal.