Complaint filed against Keller over death penalty appeal

I haven't commented before now on the matter of Court of Criminal Appeals Judge Sharon Keller and her refusal to allow a motion to stay an execution pending a Supreme Court ruling. The basic background of the story is here:

The Chi ruling came as new details emerged about the Texas court's refusal to stay open past 5 p.m. on Sept. 25 so lawyers could file an appeal on behalf of death row inmate Michael Richard. The Supreme Court had accepted the lethal injection case earlier that day, and Richard's lawyers argued that the extra time was needed to respond to the new circumstances and to address computer problems that delayed the printing of Richard's motion.

Richard was executed later than night, and news of the court's refusal appeared in newspapers, and critical editorials, around the world.

Last week, court personnel declined to say who made the decision to close at 5 p.m.

It was revealed Tuesday that the decision was made by Presiding Judge Sharon Keller without consulting any of the court's eight other judges or later informing them about the decision -- including Judge Cheryl Johnson, who was assigned to handle any late motions in Richard's case.

Johnson, who learned about the request to stay open past 5 p.m. in an Austin American-Statesman story, said her first reaction to the news was "utter dismay."

"And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings."

Johnson said she would have accepted the brief for consideration by the court. "Sure," she said. "I mean, this is a death case."

Judge Cathy Cochran said the Richard case raised troubling questions.

"First off, was justice done in the Richard case? And secondly, will the public perceive that justice was done and agree that justice was done?" Cochran said. "Our courts should be open to always redress a true wrong, and as speedily as possible. That's what courts exist for."

At least three judges were working late in the courthouse that evening, and others were available by phone if needed, court personnel said.

None of the judges was informed of Richard's request by Keller or by the court's general counsel, Edward Marty, who had consulted with Keller on the request.

Keller defended her actions, saying she was relating the court's longstanding practice to close on time.

"I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given," Keller said. "And I know that that is not what other people have said, but that's the truth. They did not tell us they had computer failure.

"And given the late request, and with no reason given, I just said, 'We close at 5.' I didn't really think of it as a decision as much as a statement," Keller said.

Keilen, whose organization also handled Richard's appeal, said court clerks were informed about the computer problems.

Adjectives fail me on this one. I'll echo Evan Smith, who wondered about Helberto Chi, whose October 3 execution did eventually get stayed:

[H]onestly, what's the hurry? Why rush to execute someone under a cloud when you can do it next year (when the Court is likely to rule again) free and clear of constitutional questions, or when you can do it in a more appropriate way? Wouldn't we rather be right than fast? This kind of image-ignorant thinking validates the stereotype that we kill 'em first and ask questions later.

Sadly, it seems that Keller doesn't just validate that stereotype, she embraces it. This time, there may be consequences.

Twenty lawyers from across Texas filed a formal judicial conduct complaint Wednesday against Texas Court of Criminal Appeals Presiding Judge Sharon Keller, accusing her of violating the constitutional due process of a condemned man.

The complaint to the State Commission on Judicial Conduct says Keller improperly cut off appeals that preceded the execution of Michael Richard on Sept. 25, even though just hours earlier the U.S. Supreme Court had accepted two Kentucky cases on the constitutionality of chemicals used for lethal injection.

Meanwhile, two of his predecessors raised questions about whether Attorney General Greg Abbott should have intervened to stop Richard's execution. The attorney general represents the state in death penalty appeals. Abbott's office declined requests for comment.

The lethal injection issue before the Supreme Court had direct implications for Richard's execution because Texas uses the same chemicals as Kentucky. The Supreme Court has since stayed one Texas execution because of the Kentucky cases. The state appeals court halted the next one.

"Judge Keller's actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution," the complaint states. "Her actions also brought the integrity of the Texas judiciary and of her court into disrepute ... "

Lawyers signing the complaint include former State Bar President Broadus Spivey, Houston criminal defense lawyer Dick DeGuerin, University of Houston law professor Mike Olivas, former appellate Judge Michol O'Connor, state Rep. Harold Dutton, D-Houston, and former Nueces County Attorney Mike Westergren.

The lawyers are being represented in the complaint by Jim Harrington, director of the Texas Civil Rights Project.

Harrington said before filing the complaint that it was "shameful" for Keller to "short-circuit" Richard's rights by ordering the courthouse door locked at 5 p.m. even though fellow appellate judges said they were prepared to stay late to consider defense arguments.

"I think it's probably reflective of her own personal bias in this case about capital punishment and her lack of respect for the rights of defendants, the rights they have under the constitution," he said.

I've said stuff like this before, and I'll say it again now. The question isn't about whether or not Michael Richard has any claim to innocence, or even compassion. It's a matter of the state, with its awesome power to kill people, playing by the rules. At the risk of getting all schmaltzy on you, America is supposed to be the kind of place where we take the idea of justice seriously. We're not supposed to execute people capriciously or indifferently. We know we're not perfect, and that we make mistakes, but we bend over backwards to try to be fair. It's a damn crying shame that Sharon Keller doesn't give a fig about any of that. Not for Michael Richard's sake, but for all of our sake.

The Texas Moratorium Network has the full text of the complaint. There's lots more out there, from PDiddie, Grits and Grits again, Rick Casey, Vince, State of Mine, and McBlogger.

Posted by Charles Kuffner on October 11, 2007 to Crime and Punishment