Legal Commentary

TX Judge On Trial for Refusing to Accept Death Row Inmate's Filing for Stay

By Jeralyn

The ethics trial of Texas Court of Criminal Appeals Judge Sharon Keller began today in San Antonio. The alleged improprieties stem from her refusal to keep the court open past 5:00 pm so Michael Wayne Richard's lawyers could file their request for a stay of his execution later that night. Richard was executed hours later.

Keller is charged with five counts of judicial misconduct that could end her career. .... A Republican who has served on the court since 1994, Keller is the highest-ranking judge in Texas to be put on trial by the commission.

The last minute filing request by Richards' lawyers was the result of a decision by the Supreme Court that morning to hear the case of Kentucky v. Baze, challenging the three drug cocktail for lethal injections. [More...]

Her defense, according to her attorney Chip Babcock:

This whole case is about the confusion between the word 'court' and 'clerk,'" Babcock said. "There is no question the clerk's office closes at 5. That does not mean there are not after-hours filings."

Abel Acosta, a deputy clerk at the court, testified that he told Richard's legal team that he would not accept anything past 5 p.m. But he said he didn't think Keller had shut the door on Richard, since he knew that the man's lawyers could hand an appeal directly to a judge. Acosta didn't remind Richard's attorneys of that."We're not supposed to advise the people who are filing," Acosta said.

The phone calls between clerk Acosta and the legal team are important to the case. Here's a recap of the testimony today on the calls. Also testifying: Ed Marty, the Court of Criminal Appeals general counsel. A recap is here.

The case is being prosecuted by Mike McKetta, hired by the Commission on Judicial Conduct to prosecute Keller. A recap of opening arguments is here.

McKetta focused on the Court of Criminal Appeals’ execution-day procedures, which were not written down on Sept. 25, 2005 — the day Michael Richard was executed — but were known to all the judges on the court.

“The court this week will hear evidence on whether there was an intentional circumvention of the execution-day procedures, and if there was an intentional circumvention … what were the consequence of that,” McKetta said. “And was that a proper use of judicial power, or was that a misuse of judicial power?”

According to the court’s procedures, any communication — phone call, fax or pleading — about the Richard case had to be referred to Johnson, the judge assigned to the case, McKetta told the judge. However, he said, when Richard’s legal team asked to file motions after the court’s 5 p.m. closing, Keller chose to decline the request on her own. “You will hear evidence … that (Keller) did circumvent that execution-day procedure,” McKetta said.

CBS Legal Analyst Andrew Cohen writes today:

Texas has an opportunity through this process to take a stand against decades of heartless, unfair treatment of criminal defendants. There is simply no place in the criminal justice system for a judge who could ever think it was appropriate to close off an appeal like Richard's because it was going to be 20 minutes late.

We like to think that our judges should be automatons, completely devoid of human empathy and compassion, but the truth is we need them in the end to be just decent human beings. That's why even if you won't admit it to yourself you'd rather have Justice Sotomayor as your judge than Justice Keller.

Time Magazine has more on the Judge and the trial, and TalkLeft's past coverage is available here.

Full post as published by TalkLeft on August 17, 2009 (boomark / email).