While the State Commission on Judicial Conduct informed the court that the purpose of the hearing was not to pursue any political or moral argument against the death penalty, but, instead, to find out what Judge Keller knew and when she knew it on the date the state executed Michael Wayne Richards.
Judge Keller's lawyer then stood up and presented that old favorite from law school - the "it ain't my dog" defense.
The first witness was Court of Criminal Appeals Judge Cheryl Johnson who expressed outrage that the proper execution day protocols were not followed on September 25, 2007. She familiarized herself with Mr. Richards' case and, once the U.S. Supreme Court decided to hear arguments in a case involving the constitutionality of Kentucky's lethal injection method of execution, she prepared herself for a request for a stay of execution.
Judge Johnson testified that both she and her research attorney remained at the court after hours in anticipation of receiving Mr. Richards' pleadings. She hinted that Ed Marty, the general counsel for the CCA, appeared to know something about the goings-on in Mr. Richards' case that he wasn't sharing with the judges. That something, apparently, were repeated requests from Mr. Richards' attorneys for more time to file their pleadings.
She testified that the next day, when the judges tossed around a hypothetical about a request for a late filing in a case on execution day, Judge Keller did not comment.
On cross, Judge Keller's attorney attempted to deflect blame for the incident toward Judge Johnson. He hinted that the judge's portrayal of Mr. Marty was fictional at best.
The second witness was Ms. Dorinda Fox of the Texas Defenders Service. Ms. Fox testified that on September 25, 2007, TDS was having problems with its computers and that she contacted CCA clerk Abel Acosta about filing their pleadings late. She said Mr. Acosta had accepted late filings in the past, but on that day he told her the clerk's office was closing at 5:00 p.m.
At 5:45 pm, Ms. Fox testified she told Mr. Acosta she was on her way but was told no one was at the courthouse. When she asked if she could file the pleadings electronically, Mr. Acosta told her she could not.
On cross, Judge Keller's attorney questioned Ms. Fox on the computer problems TDS was having, the length of the pleadings, when they were ready to file the pleadings and whether or not she was a paralegal on the date in question.
Mr. Acosta was called to the stand next and he testified that he was at the courthouse until 7:00 pm on September 25, 2007 and that it would not have been a hardship for him to accept Mr. Richards' filing. He also testifed that he was told by Judge Keller to close up shop at 5:00 pm that evening. He also testified that he was not told that TDS was having computer problems and that he was unfamiliar with the CCA's execution day protocols.
On cross Mr. Acosta stated that he did not believe Judge Keller blocked access to the court. When asked he said he did not advice Mr. Richards' attorneys to file under Rule 9.2 or to contact Mr. Marty or Judge Johnson because he was told not to be proactive.