Judge Sharon Keller returned to the stand on day 3 of her trial to resume cross-examination.
Judge Keller told the court that she was not Mr. Marty's primary supervisor and that she had not given him any guidance regarding the execution day protocols. She made the cryptic statement that she assumed, however, that Mr. Marty "would do what he was supposed to do." She also stated that she did not feel that following the execution day protocols was part of her job - she said it was her responsibility to the other judges to follow the protocols.
She testified that there were no training sessions for court staff on how to follow the protocols -- which were never written down until after the Richard execution. She said that people learn by doing.
Judge Keller relied upon Texas Rule of Appellate Procedure 9.2 to defend her decision to close the clerk's office at 5:00 pm. She said that TDS had all day to file their pleadings and that last minute filings tended to be "voluminous and meritless." She maintained her view that TDS' call to Mr. Marty on the afternoon of the execution was an administrative matter.
She was asked about a lawsuit filed against her by Mr. Richard's family that was dismissed upon her plea of judicial immunity. Judges are granted immunity for judicial acts, not for administrative acts. Judge Keller tried to explain how her actions were judicial in response to the family's lawsuit but only administrative in this action. In that lawsuit, Judge Keller argued that since the act of granting or denying a stay was judicial in nature she was protected by judicial immunity. When asked to explain the distinction in that suit and this one she told the commission's attorney that he was comparing apples to oranges.
Judge Keller then denied that any of her "no's" that day impacted Mr. Richard's case. She then said that, given a chance to revisit the events of that day, she would have handled it the same.
Under direct examination, Judge Keller denied that the execution day protocols were "court rules" because they were not made through a public process. She then claimed she did not deny Mr. Richard's the right to seek a stay of execution.
When asked whether she still believed Mr. Marty had violated the court's protocols she said she no longer felt that way and intimated that Mr. Marty had indeed spoken to Judge Johnson. She claimed that Judge Johnson was either confused or just didn't remember speaking to Mr. Marty on the afternoon of September 25, 2007.
After Judge Keller stepped down, Mr. Ed Marty testified via deposition. He testified as to preparing documents for the judges in case Mr. Richard filed a last minute stay based on Baze. He claimed that the CCA would have denied the stay on a 5-4 vote; though he admitted that Judge Price was preparing a dissenting opinion.
Mr. Marty testified that he received a call from TDS that afternoon regarding their computer problems and that TDS asked if they could file their pleadings after 5:00 pm. He said he called Judge Keller and was surprised that she told him no. He also testified that Judge Keller called him at 5:00 pm to see if any pleadings had been filed.
In August 2008, Mr. Marty testified that Judge Keller told him there was no reason the clerk's staff should have to work past 5:00 pm if TDS couldn't file their pleadings on time. In his deposition, Mr. Marty backed off that statement though he said the sentiment was the same.
Mr. Marty also testified that, even though he was general counsel for the CCA, he did not realize that all communications regarding Mr. Richard's case should have been directed to the assigned judge (Judge Johnson) - this despite his testimony that he helped develop the execution day protocols.
He also testified that he knew how to get in contact with Judge Johnson after hours.
He then stated that he was called into Judge Price's chambers to discuss the events of September 25, 2007 and that, upon being accused of not telling Judge Johnson what was going on, that he said he had called her. He then said Judge Johnson told Judge Price that Mr. Marty did talk to her but that she understood his statement to mean that Mr. Richard was not filing a request for a stay.
He concluded by saying that he thought he and Judge Keller acted properly and lawfully that afternoon.