Judge Keller's team called Mr. Roy Greenwood as an expert witness on appellate procedure. Mr Greenwood went to work with the CCA in 1971 and remained there until 1978. He said that it is very important for attorneys handling post-conviction matters to be familiar with the Texas Rules of Appellate Procedure.
Mr. Greenwood testified that TRAP 9.2 gives attorneys two options for filing pleadings - they may file the pleading with the court or with a judge on the court who will accept the filing. He testified that he found the arguments made by Mr. Richard's attorneys regarding the request to file after hours to be incredulous.
Mr. Greenwood said that TDS was largely to blame for the events of September 25, 2007 - from not being staffed adequately on an execution day to Dr. Dow's late appearance to filing the wrong pleadings. He said that he did not feel that Mr. Richard received adequate representation that day.
On cross examination Mr. Greenwood testified that he had never filed any writs based on the lethal injection method of execution, that he was often critical of short habeas writs and that filing a writ of prohibition might be a sound strategy to get around the subsequent writ statute.
He then testified that he was unfamiliar with the workings of TRAP 9.2 until he ran into a late-filing situation.
The next witness was Mr. Greg Wiercioch by deposition. Mr. Wiercioch was one of the founding members of the TDS in 1995. He was Mr. Richard's attorney of record on September 25, 2007.
Mr. Wiercioch stated that he was unfamiliar with TRAP 9.2 on the day of Mr. Richard's execution. He also said that until the US Supreme Court granted ceriorari on the Baze case he had not filed any writs based on the method of execution.
He acknowledged not filing a complaint against Judge Keller and he admitted to saying that the Richard execution was the end result of a "perfect storm" of circumstances. When asked about saying Judge Keller was not to blame for what transpired, he said she was not at fault for TDS not filing its pleading before 5:00 pm but that she was to blame for closing the court and not allowing them to file the pleading.
Mr. Wiercioch admitted that although the numbers for the judges' chambers are public information, he never bothered calling any of the judges. He also stated he never saw a draft of a motion for leave to file a writ of prohibition.
Finally, Mr. Wiercioch said that under the previous general counsel to the CCA, Mr. Rick Wetzel, the court had a policy of accepting late filings.
In his summation, the commission's attorney pointed out that Mr. Marty had given three different accounts of what happened that day while Judge Johnson had only given one version. He also pointed out what Judge Keller knew, heard, said, thought, did, decided and refused to do - as well as the consequences of each. He pointed out that Judge Keller had refused to accept any responsibility for her actions that day and kept pointing the finger at Mr. Richard and his attorneys. He finished off by restating Judge Keller's claim that, given a chance to do things differently, she would have done things the same.
Judge Keller's attorney blamed the events of September 25, 2007 on TDS. He provided a timeline and questioned why TDS waited so late in the day to prepare their pleadings. He said that TDS had bungled the process by not being familiar with TRAP 9.2. He then added that no one had ever asserted that Mr. Richard was not guilty. He said Judge Johnson's testimony was absurd and that Judge Keller did nothing to prevent TDS from filing their writ.
The judge thanked the attorneys and concluded the proceedings.
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