On day 2 of the Keller trial, Liz Waters, a paralegal with the TDS, testified that Mr. Acosta at the CCA told her the court would not accept any late (after-hours) pleadings in the Richard case. Judge Keller's attorneys attempted to impeach Ms. Waters by pointing out she obtained her paralegal certificate from an out-of-state school and that she testified in her deposition that Mr. Acosta told her the clerk's office was closed at 5:00 pm, not the court.
Ms. Waters testified that it was the Houston office of the TDS that was having e-mail issues on September 25, 2007. She also stated that she had never filed any pleadings after hours in the CCA.
The next witness was Dr. David Dow, a professor at the University of Houston Law Center and litigation director of the TDS. He testified that up until September 25, 2007, TDS was anticipating filing a writ of prohibition on the grounds that Mr. Richard was mentally retarded (an Atkins claim). He said that TDS had been unsuccessful on challenging the constitutionality of the lethal injection delivery system for the previous 2 1/2 years. It wasn't until the US Supreme Court granted ceriorari in the Baze case that morning, that he directed his office to prepare writs based on the constitutionality of death by lethal injection.
Dr. Dow began editing the writs around 3:30 pm but he, and other staffers in the Houston office, suffered numerous computer problems that afternoon. Dow then testified that he had staff in the Austin office contact the court again about filing the writs after hours and was told that Mr. Acosta made it clear the court would be closed at 5:00 pm. He then testified that he had never been denied the opportunity to make an after-hours filing before the Richards case.
Between 5:30 pm and 6:00 pm the US Supreme Court notified TDS that the Baze challenge had been denied. TDS then filed a motion for a stay of execution with the US Supreme Court and informed the court they had been unable to file their writs that afternoon but would be filing them in the morning.
On cross, Dr. Dow said he didn't contact Judge Johnson under Rule 9.2 because he did not think he could invoke Rule 9.2 since he was told the court was closed. He said he didn't call the court's general counsel, Mr. Marty, because he assumed that Mr. Acosta was talking to someone who told him the court was closing at 5:00 pm.
Judge Keller's attorney intimated that there never was a computer problem and, even if there was one, TDS had not filed a motion for leave to file a writ of prohibition.
When her attorney pointed out that Dr. Dow's article in the Washington Post about the Richardmatter blasted the CCA for not staying open an extra 20 minutes to accept a late filing, but that it was almost 6:00 pm before the pleadings were ready for filing, Dr. Dow said it didn't matter because the court "couldn't be bothered to stay open one minute late."
Judge Keller's attorney called Ms. Alma Lacosta to testify via deposition. In her deposition, Ms. Lacosta stated that she didn't fax the pleadings because of their length and that she had never worked on a writ of prohibition before. She also testified that she was not familiar with Rule 9.2 of the Texas Rules of Appellate Procedure.
Judge Keller then took the stand under cross. She testified that the CCA did not reduce its execution day protocols to writing until October 2007, after Mr. Richard was executed. Judge Keller testified that even though the oral protocols stated that all communications regarding the execution should be directed to the assigned judge handling the case, Mr. Marty was in compliance because he felt the communications from TDS were only administrative and not substantive.
Judge Keller said that neither Mr. Acosta nor Mr. Marty were to blame for the events that occurred on September 25, 2007, but they were hardly ringing endorsements. She said Mr. Acosta did no wrong by not contacting Judge Johnson - because he didn't know the protocols. She said she did not know why Mr. Marty did not disclose the name of the judge assigned to the case.
Judge Keller also said she didn't know for certain if she had checked her e-mail before leaving the court at 3:45 pm that afternoon. She remembered speaking to Mr. Marty about the TDS request for the court to accept an after hours pleading. She did not, however, remember much else about the conversation. She could not explain why she didn't direct Mr. Marty to Judge Johnson, the judge assigned to the Richard case.
Judge Keller maintained that, even though she told Mr. Marty on at least two occasions that the clerk's office would close at 5:oo pm, she did not believe she was making a decision in the case. She also testified that she knew what was going on with the case during the course of the evening.