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Texas Judge Asks for Dismissal of Charges in Inmate's Execution
Texas Lawyer
March 31, 2009
In asking the State Commission on Judicial Conduct to dismiss its charges against her, Court of Criminal Appeals Presiding Judge Sharon Keller lays some of the blame for a Texas inmate's execution in 2007 on his lawyers.
In her March 24 answer to the commission's Notice of Formal Proceedings, Keller alleges she never was told that Michael Richard's lawyers were having computer problems that delayed them in filing for a stay of execution on Sept. 25, 2007, the day that the state executed Richard.
But Keller alleges in her answer -- which has 142 pages of exhibits attached -- that Richard's attorneys at the Texas Defender Service did not need a computer to prepare and timely file a motion for stay after the U.S. Supreme Court granted a petition for a writ of certiorari in Baze v.Rees to determine whether the chemicals used in Kentucky's lethal injection method of execution constituted cruel and unusual punishment -- an issue Richard sought to raise with the CCA. Keller, a CCA judge since 1994 and the court's presiding judge since 2000, contends in her answer filed with the commission that Richard could have handwritten a motion for stay and the court would have accepted it, or he could have filed an application for a writ of habeas corpus in the trial court. (See Keller's answer and exhibits.)
"They didn't need a computer for this," says Charles "Chip" Babcock, Keller's attorney and a partner in Jackson Walker in Dallas.
Babcock says, "Judge Keller should not be in this position. I cannot imagine why the commission voted to have formal charges brought against her."
Seana Willing, the judicial conduct commission's executive director, says Keller's answer indicates that Richard's lawyers could have filed a handwritten motion for stay of execution on a scrap of paper and the CCA would have accepted that. "It's easy to say after the fact they would have accepted it, but we don't know that," Willing says.
The commission issued its Notice of Formal Proceedings in In Re: Honorable Sharon Keller on Feb. 19 in connection with the Richard case. As alleged by the commission in its notice, Richard's attorneys called the CCA clerk's office at about 4:45 p.m. on Sept. 25, 2007, to report they were experiencing computer problems and to request that the office remain open a few minutes late to accept their filing but were told that the office would close at 5 p.m. Keller, who was away from the CCA that afternoon, refused to keep the office open, as alleged in the commission's notice.
In its notice, the commission lists the following five charges with regard to Richard's case:
• Keller's failure to follow the CCA's execution-day procedures constituted willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge.
• Keller's failure to follow the CCA's execution-day procedures constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice.
• Keller's conduct did not accord Richard access to open courts or the right to be heard according to law. Keller's conduct constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge.
• Keller's conduct did not accord Richard access to open courts or the right to be heard according to law. Keller's conduct constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice.
• Keller's willful and persistent failure to follow the CCA's execution-day procedures constitutes incompetence in the performance of duties of office.
The possible outcome of the formal proceedings is dismissal of the complaints against Keller, a public censure of her or a recommendation by the commission to the Texas Supreme Court that she be removed from office.
But Keller alleges in her answer that to her knowledge, the CCA clerk's office has never stayed open beyond 5 p.m. on an execution day, "which does not mean that after hour filings were not allowed." TDS, in another death penalty case, filed a motion to stay an execution with the CCA after hours -- an exhibit attached to Keller's answer shows that TDS and Sergi & Associates of San Marcos filed a successor application for writ of habeas corpus and stay of execution for Jose Alfredo Rivera at 6:25 p.m. Aug. 6, 2003, with the CCA.
David Sergi, principal in Sergi & Associates, says TDS filed the writ application and stay with the CCA. Rivera was granted the stay, he says.
In her answer to the commission, Keller alleges that on Sept. 25, 2007, no lawyer for Richard contacted any CCA judge, its general counsel or staff members, and no attempt was made to file an after-hours pleading in accordance with Texas Rule of Appellate Procedure 9.2(a). Under the TRAP rule, a document is filed in an appellate court by delivering it to the clerk of that court or to a judge or justice who is willing to accept delivery.
Neal Manne, a partner in Susman Godfrey in Houston who serves as counsel for TDS on a pro bono basis, says, "TDS does not think it's appropriate for Judge Keller to try to defend herself by attacking TDS."
Manne says that TDS attorneys, when they contacted the CCA about keeping the clerk's office open to accept their filing on the day Richard was to be executed, were told "not to bother coming." The commission properly focused on Keller's conduct, he says.
But Keller's attorney wants to know more about the computer problems TDS experienced on the day Richard was executed. "We're going to do discovery to determine the extent of their computer problems," Babcock says.
Willing says the next step in In Re: Keller will be for the judicial conduct commission to set a time and place for a public hearing. Under Rule 10(b) of the Procedural Rules for the Removal or Retirement of Judges, the commission, when it sets the hearing date, will submit a written request for the appointment of a special master -- an active or retired district judge or court of appeals justice -- who will preside over the hearing.
The special master will make findings of fact in a report to the commission, which will hold another public hearing at the conclusion of which the commission will make its decision about the case, Willing says.
Keller alleges in her answer that the charges the commission brought against her are unconstitutional because she has been denied the right to counsel.
As noted in the answer, the judicial conduct commission has denied Keller's request that the commission appoint Jackson Walker as her counsel and pay the firm's "reasonable fees." Keller further noted in her answer that the Texas Ethics Commission, citing its own rules, refused to answer her recent questions as to whether Jackson Walker could defend her on a pro bono basis, reduced-fee basis or through an alternate billing arrangement, such as a fixed fee.
Keller alleges in her answer, "The net effect is that these two arms of Texas government are forcing Respondent to an election: either defend herself pro se or risk a financially ruinous legal bill to defend against these charges which are without merit."
