Update: Court stays Milam execution

On Monday, the Court of Criminal Appeals stayed the execution of Blaine Milam. The Court granted the stay due to questions on about the reliability of bite mark evidence and to determine whether Mr. Milam's intellectual disability makes him ineligible for execution.

Monday's stay is the first since death penalty opponent Elsa Alcala left the bench. Her replacement, the newly elected Michelle Slaughter, along with Sharon "Killer" Keller and Kevin Yeary, voted against the stay.

Somehow it's no surprise that Judge Slaughter, whose only apparent qualification for the Court would seem to be the R after her name, has already cozied up to Judge Keller who is best known for closing the clerk's office to prevent an appeal from being filed in a death penalty case. Judge Slaughter's claim to fame is being required to take a class on the ethical use of social media after she commented about an ongoing case on social media. A mistrial was declared and the defendant was later acquitted.

Merging courts a bad idea

In the aftermath of Reconstruction, the people of Texas decided they wanted to keep the government as weak as possible so as to avoid anyone consolidating power like the Reconstruction governors had. It's why we have partisan elections for judges and why we have two high courts. The Supreme Court hears civil and juvenile appeals while the Court of Criminal Affirms Appeals only hears criminal appeals.

Oklahoma is the only other state with a bifurcated high court system - though other states have looked at the idea of dividing their high courts to deal with massive backlogs.

State Representative Richard Pena Raymond (D-Laredo) has filed a bill that would do away with the Court of Criminal Appeals and consolidate appellate authority in the Supreme Court. More than one practitioner has said it couldn't be any worse than the current arrangement. Taxpayers would probably be on board since it would reduce the size of state government.

But would it be a good idea for Texans accused of criminal activity?

In Texas most district and county courts are courts of general jurisdiction and handle both civil and criminal cases (Harris County has dedicated criminal and civil courts). The first level of appellate courts are also courts of general jurisdiction and handle both civil and criminal appeals.

But when those cases are appealed they are split between civil and criminal. The justices on the Supreme Court are all civil attorneys who either practiced with a white shoe firm or were golfing buddies with a friend of Governor Goodhair. The judges (because there is no justice in the Court of Criminal Appeals) on the CCA are mostly former prosecutors and lower-level judges who have a good deal of familiarity with criminal law (and even know that there are ten amendments in the Bill of Rights, though at least one of them is honored more in the breach than in the observance).

Most of the criticism of the CCA is directed at its presiding judge, Sharon Killer Keller who sent one man to his death apparently just because she could.

This is not the first time someone has proposed merging the two courts. The matter has appeared on the ballot as a constitutional amendment and has been put forward as a bill many times in the past. But the idea has never passed muster with the voters or with the state legislature.

Republicans wanted to merge the courts when the Democrats were in power. Democrats want to merge the courts now that the Republicans have taken over the state.

The simple fact of the matter is that there is too big a caseload for any one court to handle. Sure, there's only one high court in the United States and it hears only a few cases a year. The vast majority of cases are refused.

The only way to make a unified high court work in Texas would be to restrict the number of cases that come before it. That means even more cases will die on the vine of the Courts of Appeal. It means that more Texans will see their day in court go up in flames because, as former Supreme Court Justice James P. Wallace once said "There's only 24 hours in a day..."

I've written here before that our method of picking judges is not the best way to do it. No one outside the courthouse knows anything about the candidates other than their party affiliation. Every election cycle good judges are swept out of office simply because they chose the wrong year to have that D or R after their names.

But what's the alternative? I don't want the government appointing judges who will then stand for periodic retention elections. That's not democratic. I don't want nonpartisan elections because that will only mean more campaign money coming in from folks who have an interest in what goes on in a given courtroom. And I don't want a unified court just because 48 other states have one. Consolidating the courts would concentrate too much power into too few hands and would make it harder to have a case heard at the highest level.

I'm sure there's a better way to do this, but I'll be damned if I can figure it out.

Attacking their own

The Republican primary for Presiding Judge of the Texas Court of Criminal Affirms Appeals should be a most interesting affair as a sitting judge, Lawrence Meyers, challenges the incumbent, Sharon Killer Keller.

Judge Meyers was elected to the highest criminal court in the state in 1992, after serving on the Fort Worth Court of Appeals from 1989-1992. Prior to serving on the appellate bench, Judge Meyers practiced civil, criminal and appellate law in Fort Worth. Before moving to Fort Worth in 1975, Judge Meyers was a prosecutor in Kansas.

Judge Meyers authored the Court's opinion in Ex parte Elizondo, 947 SW2d 202 (Tex.Crim.App.2002) in which the court held that the Due Process Clause of the US Constitution "forbids, not just the execution, but the incarceration as well of an innocent person." Judge Killer Keller, on the other hand, joined in the dissent, on the grounds that reopening cases to determine whether the defendant was, in fact, innocent, threatened the "finality" of jury verdicts. Heaven forbid!

Judge Killer Keller is best known for ignoring protocol and closing the court to prevent Michael Richard's attorneys from filing a last minute appeal on the afternoon of his scheduled execution. Judge Killer Keller was found to have violated the rules of the court and was issued a public warning for her actions. The decision was later overturned as the Commission on Judicial Conduct was not authorized to issue a public warning. Judge Killer Keller is also known as Judge No as she is consistently dissenting from court opinions recognizing that the Bill of Rights contains protections for criminal defendants.

The mere fact that a fellow member of the CCA is challenging the presiding judge is telling. The fact that both judges are Republicans should make it clear that many in the GOP have grown weary of Judge Killer Keller's act. Through her actions in the Michael Richard affair, the Presiding Judge brought disdain and ridicule to the Court.

This one race might be enough to encourage Democrats to cross over and vote in the Republican primary next spring to oust Judge Killer Keller from the bench.

Judge Killer rebuked

At long last the saga of Judge Killer seems to be coming to an end with the State Commission on Judicial Conduct's release of its Findings, Conclusions and Order of Public Warning against the Chief Judge of the Texas Court of Criminal Appeals, Sharon Keller.

In condemnation of the conduct described above that violated Article 5, section 1-(a)(6)A of the Texas Constitution  and Canon 3B(8) of the Texas Code of Judicial Conduct, it is the Commission's decision to issue a PUBLIC WARNING to the Honorable Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, Austin, Travis County, Texas.

Pursuant to the authority contained in Article 5, section 1-a(8) of the Texas Constitution, it is ordered that Judge Keller's conduct described above be made the subject of a PUBLIC WARNING by the State Commission on Judicial Conduct. -- Commission's Findings, Conclusions and Order of Public Warning, Inquiry Concerning Honorable Sharon Keller, Judge No. 96

For those of you who haven't followed the proceedings, Chief Judge Keller told David Dow and the Texas Defenders Service that the Court would not remain open for late filings on the day that Michael Richard was scheduled to die at the hands of the state. Mr. Richard's attorneys scrambled that day to prepare a writ of habeas corpus challenging the constitutionality of the lethal drug cocktail used by Texas to kill inmates as the US Supreme Court granted a writ of certiorari in a case out of Kentucky alleging that the drugs used by Kentucky (the same drugs used by Texas) masked the suffering of the inmate while he lay dying.

At a hearing presided over by Judge David Berchelmann, Jr. of San Antonio, Judge Keller tried to throw the blame squarely on Mr. Dow's shoulders for not filing his pleadings on time. Judge Berchelmann fell for the misdirection and spent entirely too much time raking Mr. Dow and his organization over the coals when the focus of the inquiry was Judge Keller's conduct.

The State Commission saw past the smokescreen and found that Judge Keller violated the rules of the court regarding execution day protocols, knowing that her actions would allow the state to kill Mr. Richard. The commission then issued a public warning rebuking Judge Keller for her actions -- the first time a sitting judge on the Court of Criminal Appeals has received such a warning. (Click here for the Commission's Findings.)

Judge Keller has said that she will appeal the Commission's finding and warning. Nice to see the judge taking advantage of a protocol that she denied to a man scheduled to die.

No experience needed

Earlier this week State District Judge Susan Criss from down in Galveston posted a comment on her Facebook page that 40 of the 111 Chief Justices of the U.S. Supreme Court had no experience as judges. Then Rick Casey of the The Houston Chronicle wrote about the lack of judicial experience for judges on the two highest courts in the state. According to Mr. Casey, five of the judges on the Texas Court of Criminal Appeals had no judicial experience prior to being elected (I don't know if using Judge Killer as an example is a good idea, however). He also pointed out that the Chief Justice of the Texas Supreme Court, Wallace Jefferson never wore a judge's robe before he was appointed to the court.

Senate Republicans are aiming to make an issue of President Obama's selection to fill the seat of Justice John Paul Stevens having no prior judicial experience. Elena Kragan is the Solicitor General for the United States and argues before the Supreme Court on issues involving the federal government. Funny that Republicans didn't have a problem with President George W. Bush's selection of Harriet Miers, former White House Counsel, to fill a seat on the bench. But, then, consistency has never been a priority of the two major parties.

Neither former Chief Justice Earl Warren nor Chief Justice William Rehnquist, appointed by Presidents Eisenhower and Nixon respectively, had any prior judicial experience before taking their seats on the high court.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. -- U.S. Constitution, Art. III, Sec. 1

The U.S. Supreme Court was created by Article III of the United States Constitution. Interestingly enough, there is no requirement that a nominee for the Court even be a lawyer.

A reprieve for Judge Killer

The special master appointed to hear the State Commission on Judicial Conduct's charges against Judge Sharon Keller of the Court of Criminal Appeals has found that the judge's conduct "[did] not warrant removal from office or further reprimand beyond the public humiliation she has surely suffered."

Of course, while Judge Keller may have suffered public humiliation, at least she is still alive to feel the brunt of it. Michael Richard is dead due, in part, to her actions.

Judge David Berchelmann, Jr., of San Antonio, found that Judge Keller's actions on the day of Mr. Richard's execution did not preven his attorneys, the Texas Defender Service, from filing the necessary documents as there were other avenues for filing available. Judge Berchelmann said TDS bore most of the responsibility for the events of the day.

Judge Berchelmann's findings will now go to the Commission who will decide whether to dismiss the complaint, reprimand Judge Keller or ask the Texas Supreme Court to remove her from office.

Read Judge Berchelmann's findings here.

Paybacks can be hell

University of Houston law professor David Dow is now wearing the shoe off the other foot. Mr. Dow and the Texas Defender Service (TDS) were in the middle of the controversy swirling around Judge Killer, er... Keller, and her closing of the Court of Criminal Appeals clerk's office on the night of Michael Richard's execution.

On November 18 the Court ordered Mr. Dow to appear before the Court for a show cause hearing on the TDS' untimely filed documents in another death penalty case.

Under the Court's Miscellaneous Rule No. 08-101, adopted in June 2008, any motions filed relating to a death sentence are considered late if filed less than 48 hours before 6pm on the date of the execution. If a pleading is filed within 48 hours, a sworn statement of why the pleading is being filed late must be attached.

TDS filed the writ on the afternoon of November 17, 2009. In Mr. Dow's sworn statement he said he did not receive the file in question until November 6, 2009 (twelve days before the scheduled execution) and that the grounds for the writ of habeas corpus changed on November 15, 2009 due to a decision by the U.S. Supreme Court. He also noted the time constraints of dealing with multiple cases near the deadline.

Mr. Dow's writ was denied and his client was executed on November 18, 2009.

Judge Keller did not participate in the decision to deny Mr. Dow's writ and she did not participate in the show cause hearing.

I understand the need for courts to have adequate time to review pleadings before a deadline, but I have to question the need for Miscellaneous Rule No. 08-101. We're talking about a human life. With all of the controversy regarding the execution of Cameron Willingham, I should think the State of Texas would be cautious before ordering the murder of anyone else.

Review of Judge Killer's trial, day 4

Once again, thanks to both Ms. Jessica Phipps of the The Ackerman Law Firm and the Texas Criminal Defense Lawyers Association for providing notes of the proceedings.

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.

Review of Judge Killer's trial, day 3

Once again, thanks to both Ms. Jessica Phipps of the The Ackerman Law Firm and the Texas Criminal Defense Lawyers Association for providing notes of the proceedings.

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.

Review of Judge Killer's trial, day 2

Once again, thanks to both Ms. Jessica Phipps of the The Ackerman Law Firm and the Texas Criminal Defense Lawyers Association for providing notes of the proceedings.

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.

Review of Judge Killer's trial, day 1

Before I get started I want to thank both Ms. Jessica Phipps of The Ackerman Law Firm and the Texas Criminal Defense Lawyers Association for providing notes of the proceedings.

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.

Judge Killer responds

On March 24, 2009, Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, filed her response to the State Commission on Judicial Conduct's inquiry into her actions on September 25, 2007 as they related to Mr. Michael Richard.

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.

Inquiry concerning a judge, No. 96

Pursuant to Section 33.022 of the Texas Government Code and Rule 10 of the Procedural Rules for the Removal or Retirement of Judges, as promulgated by the Texas Supreme Court, this NOTICE is hereby given to the Honorable Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, that formal proceedings have been instituted against her, based upon the following...

So begins the Notice of Formal Proceedings filed by the Texas State Commission on Judicial Conduct against Judge Sharon Keller for her shameful behavior on the afternoon of September 25, 2007, when she refused a request from the Texas Defender Service to file a writ of prohibition on behalf of Michael Richard, who was scheduled to be murdered by the State of Texas that evening.

Judge Keller, despite her knowledge that the U.S. Supreme Court had granted certiorari in Baze v. Rees to decide whether Kentucky's method of lethal injection constituted cruel and unusual punishment, ordered the clerk's office to close at 5:00 p.m. Judge Keller made that decision despite the fact that Judge Cheryl Johnson was the designated judge in charge of Mr. Richard's execution.

Making matters worse, Judge Keller did not inform Judge Johnson, or any of the other judges of her decision to close the clerk's office. Judge Keller did not relay any of the messages from Mr. Richard's attorneys to Judge Johnson, nor did she inform Mr. Richard's attorneys that Judge Johnson was in charge of the case.

Judge Keller left her chambers at the CCA during the afternoon on September 25, 2007, to meet a repairman at her home. Judge Keller did not return to the CCA that day. -- Paragraph 14

The Commission alleges that Judge Keller's "willful and persistent failure to follow [the Texas Court of Criminal Appeal's] Execution-day Procedures on September 25, 2007" violated her duty as Presiding Judge, discredited the Court and demonstrated incompetence. The Commission also alleges that her actions deprived Mr. Richard of his constitutional due process rights.

Judge Keller has 15 days from the date of filing (February 18, 2009) to respond to the allegations.

Lawmaker seeks to impeach Presiding Judge

Lon Burnam, a Democratic state legislator from Fort Worth, has introduced a bill calling for the impeachment of the Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, for her actions regarding the execution of Michael Richard.

Mr. Richard was executed on September 25, 2007, when Judge Keller closed the court at 5:00 p.m. even though Mr. Richard's attorneys requested that the court remain open for 20 minutes in order to file his appeal.

"It's one thing for a banker to close shop at 5 o'clock sharp. But a public official who stands between a human being and the death chamber must be held to a higher standard." - State Rep. Lon Burnam

The extra time was needed due to computer problems and the U.S. Supreme Court's decision to hear a Kentucky case that questioned the constitutionality of execution by lethal injection.

Judge Keller indicated that she was just honoring a long-standing tradition of closing the court at 5:00 p.m.  Seems more like she was honoring a long-standing tradition of state-sponsored murder.

As my colleague Mark Bennett, author of Defending People, pointed out during a dedication ceremony for the Bill of Rights display at the Harris County Juvenile (In)justice Center, there is nothing in the Declaration of Indpedence, the Constitution or the Bill of Rights about judicial economy or moving criminal dockets along. 

If our elected officials are so callous that closing an office on time is more important that the rights of a condemned citizen, we are in serious trouble.