Texas Judge Sharon Keller is facing the second day of a special trial before the state's Commission on Judicial Conduct in a case that could mark the end of her career on the bench. The Court of Criminal Appeals judge is accused of ignoring a last-minute appeal that could have halted the execution of a death row inmate in 2007. Texas Lawyer senior reporter Mary Alice Robbins is reporting live from Keller's trial in San Antonio.
University of Houston Law Center professor David Dow found that the witness stand had turned into the hot seat as he testified in the second day of Texas Court of Criminal Appeals Presiding Judge Sharon Keller's hearing on charges that she committed misconduct on Sept. 25, 2007, the day the state executed Michael Richard.
Chip Babcock hammered away at Dow, the litigation director for Texas Defender Service, which had represented Richard in an unsuccessful effort to file a writ of prohibition and stay of execution in the CCA. Babcock, a partner in Jackson Walker in Dallas, cited news reports in which Dow was quoted as saying that the CCA couldn't be bothered to stay open 20 or 30 minutes to receive Richard's pleadings. As Babcock pointed out, testimony at the hearing in San Antonio indicated a TDS employee was not ready to leave the nonprofit organization's Austin office to file the documents until 5:56 p.m. on Richard's execution day. Dow testified that maybe he should have said the court would not wait for an hour. But he also added testily that the court "wouldn't stay open one minute for us, Mr. Babcock. Isn't that right?"
Dow and Babcock also got into a tense exchange when they turned to the issue of the computer problems Dow argues TDS experienced on Richard's execution day. Babcock has been contending that TDS did not have the computer problems Dow has claimed. Babcock said Dow had testified in his deposition that the TDS office administrator called Bayou City Connected when the computer problems occurred, but that was not TDS' service provider at the time. Babcock said Dow's attorney provided the name of another service provider, but that information was inaccurate.
Babcock said he finally received invoices for the company that was TDS' service provider 20 minutes before the hearing began Tuesday. Dow said he was mistaken about who the "IT person" was. "I would characterize it as a mistake rather than a lie," he testified. But Babcock said that characterization is not up to Dow. Sharon Keller is scheduled to be the next witness on the stand.
-- Aug. 18, 4:11 p.m.
DAVID DOW TAKES THE STAND
The litigation director for Texas Defender Service said Tuesday that he did not consider calling a Court of Criminal Appeals judge to request acceptance of a filing on behalf of Michael Richard on Sept. 25, 2007.
Testifying on the second day of CCA Presiding Judge Sharon Keller's hearing on ethics charges, University of Houston Law Center professor David Dow said he did not know or was not aware he could use Texas Rule of Appellate Procedure 9.2 to call a judge on the criminal appeals court "when we're told the court was closed." Under questioning by Mike McKetta, Dow also said he didn't consider calling then CCA general counsel Ed Marty because he assumed it would not do any good.
-- Aug. 18, 11:59 a.m.
SECOND DAY OF HEARINGS BEGIN
The second day of Court of Criminal Appeals Presiding Judge Sharon Keller's hearing on ethics charges is about to begin. John "Mike" McKetta, special counsel for the State Commission on Judicial Conduct and a shareholder in Graves Dougherty Hearon & Moody, says the first witness will be Liz Watters, the receptionist and paralegal at Texas Defender Service in Austin.
Other witnesses scheduled to testify Tuesday, according to McKetta, are David Dow, a University of Houston Law Center professor and TDS litigation director; Alma LaGarda, a TDS attorney in Houston, by video deposition; and Keller. If time permits, lawyers will present the deposition of Ed Marty, the CCA's general counsel on Sept. 25, 2007.
-- Aug. 18, 10:05 a.m.
TDS PARALEGAL, CCA CHIEF DEPUTY CLERK TESTIFY
What was said in telephone calls between a Texas Defender Service employee and the CCA chief deputy clerk was the focus Monday afternoon during CCA Presiding Judge Sharon Keller's ethics hearing in San Antonio.
The State Commission on Judicial Conduct brought charges against Keller in February in connection with events that occurred Sept. 25, 2007, the day the state executed Michael Richard. Rindy Fox, a paralegal for the Austin office of TDS, which represented Richard, testified that she believed the court had been closed to them after her conversations with Abel Acosta, a 19-year veteran of the CCA and its current chief deputy clerk. Fox testified that she called Acosta, notifying him that TDS needed to do a late filing. Acosta testified he called Ed Marty, then the CCA's general counsel, about whether a late filing would be permitted. Marty called Keller, Acosta testified, then called Acosta back.
Marty said, "The presiding judge said we close at 5 o'clock," according to Acosta. Acosta testified that he may have confused the word "court" with the words "clerk's office," but he's not sure what he told Fox. "I think when I called back, I told her, 'We close at 5 o'clock,'" Acosta testified.
McKetta, a shareholder in Graves, Dougherty, Hearon & Moody in Austin and the commission's special counsel for the Keller case, asked Acosta at one point whether Acosta was just trying to echo back what Marty had said to Acosta. Acosta replied, "Yes, sir." The conversation is pivotal, because Keller has been accused of closing the court to Richard.
In another development, Chip Babcock, a Jackson Walker partner in Dallas and Keller's lead attorney, said during his opening statement that TDS never prepared a motion for leave to file the writ of prohibition for Richard. CCA Judge Cheryl Johnson, under questioning by Babcock, testified that a writ of prohibition requires a motion for leave to file it.
The hearing is scheduled to continue Tuesday before 37th District Court Judge David Berchelmann Jr. Keller, who faces the possibility of being removed from office, is expected to take the stand Tuesday.
-- Aug. 17, 5:25 p.m.
JOHNSON: MARTY STOOD NEARBY AS JUDGES DISCUSSED SURPRISE
Court of Criminal Appeals Judge Cheryl Johnson testified today that Ed Marty, the CCA's general counsel on Sept. 25, 2007, stood only feet away from Johnson and Judges Tom Price and Paul Womack when those judges were discussing their surprise that Michael Richard's counsel had not filed pleadings for him that day. Johnson was the assigned judge for Richard's execution, meaning any communications about his execution should have gone to her under the CCA's execution-day protocol, Johnson testified.
According to Johnson's testimony, this conversation took place around 5:30 or 5:40 p.m. on the day Richard was executed. Richard's lawyers had been working that day, Sept. 25, 2007, on a motion for stay of execution and a writ of prohibition, which never were filed in the CCA. The fact that Richard's lawyers did not file his pleadings and Richard was executed are at the center of the ethics charges the State Commission on Judicial Conduct brought against CCA Presiding Judge Sharon Keller in February.
Johnson, the first witness in Keller's hearing on the ethics charges, testified that Marty stood near her and the two other judges as they were discussing their surprise at the lack of the filing. Chip Babcock, Keller's lead counsel and a Jackson Walker partner in Dallas, used a measuring tape to determine how far away Marty had stood: 5 feet, 8 inches. Babcock asked Johnson if she had asked Marty whether anything had been filed. Johnson said she did not ask him because she thought he would have called her if there had been a filing. Babcock then said, "Just like Judge Keller assumed he would tell you." To which Johnson replied, "I don't know what she would have assumed." Marty is not testifying at the hearing; lawyers will present his testimony through a deposition later this week.
-- Aug. 17, 3:15 p.m.
CCA JUDGE'S TESTIMONY CONFLICTS WITH KELLER CLAIM
With one exception, the first day of Court of Criminal Appeals Presiding Judge Sharon Keller's hearing on ethics charges has offered no surprises. That exception came when John "Mike" McKetta, shareholder in Graves Dougherty Hearon & Moody, special counsel for the State Judicial Conduct Commission, noted Keller's claim in her amended answer, filed Aug. 14, that Ed Marty, the CCA's general counsel on Sept. 25, 2007, had told CCA Judge Cheryl Johnson that Michael Richard's attorneys had requested the clerk's office to stay open to receive Richard's motion for stay of execution and writ of prohibition.
Johnson, who was the assigned judge on the day Richard was executed, denied that when she testified as the first witness in Keller's hearing. "If I had known they had asked for more time, I would have granted it," Johnson testified before 37th District Court Judge David Berchelmann Jr., special master for the case. Johnson was expected to continue testimony following the lunch break.
-- Aug. 17, 1:10 p.m.
HEARING UNDER WAY
More than a dozen protesters waving signs that said "Stop Executions" and "Remove Judge Sharon Keller" showed up outside the Bexar County Courthouse in San Antonio about 8 a.m. Monday in anticipation of Texas Court of Criminal Appeals Presiding Judge Keller's hearing on ethics charges.
The State Commission on Judicial Conduct initiated formal proceedings against Keller in February. The commission's five charges against Keller stem from events on Sept. 25, 2007, when the state executed Michael Richard after his lawyers were unable to file a motion for stay of execution and writ of prohibition because the CCA's clerk's office did not remain open past 5 p.m.
Then-general counsel Ed Marty had notified Keller about a request to keep the clerk's office open after 5 p.m. that day to receive a filing. Keller said the office closed at 5 p.m. Scott Cobb of Austin, president of the Texas Moratorium Network, was among Monday's courthouse protesters. Cobb contends Keller violated the Code of Judicial Conduct because she did not tell Marty to notify the CCA duty judge for Richard's execution. Outside the courthouse, protester Anna Terrel, a member of Restorative Justice, yelled on a microphone, "She shouldn't be on the bench, get rid of her."
Keller's hearing is expected to last three to four days. Judge David Berchelmann Jr. of San Antonio's 37th District Court, special master for the case, will report his findings to the judicial conduct commission.
-- Aug. 17, 10:01 a.m.