| Court of Criminal Appeals Presiding Judge Sharon Keller' s hearing on misconduct charges focused as much on what others did and said in 2007 when the state executed Michael Richard as it did on Keller's actions.
During the four-day hearing that wound up Aug. 20 in a San Antonio courtroom, Keller and her attorneys blamed Texas Defender Service (TDS) attorneys who represented Richard for failing to file pleadings on Richard's behalf in the hours preceding his execution on Sept. 25, 2007, and for the avalanche of negative publicity that followed. But TDS attorneys pointed the finger of blame for the events of that day back at Keller.
In TDS attorney Greg Wiercioch's videotaped deposition, aired in court Aug. 20, Chip Babcock, Keller's lead attorney, asked Wiercioch, "Why aren't you willing to accept responsibility for this?"
Wiercioch replied, "I'm not accepting any responsibility for the fact that the court did not stay open past 5 o'clock."
University of Houston Law Center professor David Dow, the TDS litigation director, testified on Aug. 18 that TDS had represented Richard and was trying to file a writ of prohibition and motion for stay of execution that raised a constitutional claim about the chemicals used in lethal injections. On the morning of Richard's execution day, the U.S. Supreme Court had granted a petition for writ of certiorari on that issue in Baze v. Rees, a Kentucky case.
In February, the State Commission on Judicial Conduct initiated formal proceedings against Keller in connection with Richard's case. The commission alleges in its first amended notice, filed in June, that Keller violated the CCA's execution-day procedures when she failed to direct an inquiry about keeping the clerk's office past 5 p.m. to receive a late filing of pleadings on Richard's behalf to the assigned judge for that case.
As alleged in the amended notice, a TDS staff member called CCA chief deputy clerk Abel Acosta at about 4:40 p.m. on Richard's execution day to request that Richard's pleadings be accepted a few minutes late, prompting Acosta to call the CCA's then-general counsel Ed Marty, who called Keller at home to ask whether the clerk's office -- or the court -- could stay open past 5 p.m.
Rindy Fox, a paralegal for the Austin office of TDS, testified that she believed the court had been closed to TDS after her conversations with Acosta. Fox testified that she called Acosta, notifying him that TDS needed to do a late filing.
Acosta testified he called Marty 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.
John "Mike" McKetta, 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."
Keller has contended that she did nothing wrong because Marty's inquiry focused on whether the clerk's office would remain open past 5 p.m. -- an administrative matter. "I was doing exactly what I was supposed to do," Keller testified Aug. 19 before 37th District Court Judge David Berchelmann Jr., the judicial conduct commission's special master for In Re: Honorable Sharon Keller.
McKetta told Berchelmann in final arguments that Keller's conduct, not the conduct of others, is at issue in the case.
"We do not believe this is a causation case; we believe this is a conduct case," said McKetta, a shareholder in Austin's Graves, Dougherty, Hearon & Moody.
McKetta said Keller knew that the call Marty notified her about on Sept. 25, 2007, concerned an execution scheduled that day and that the lawyers were not ready to file the pleadings.
Although unwritten on that date, the CCA's execution-day proceedings are mandatory and protect the rights of those facing imminent execution, McKetta said. The procedures required Keller to direct that communication to the CCA judge assigned to handle that case, but she did not do that, and she did not assure CCA staff complied, he said.
"The execution-day procedures are the way the Court of Criminal Appeals assures an open court," McKetta said.
Babcock, a partner in Jackson Walker, said in his closing argument that he was "absolutely astonished" to hear McKetta say the CCA 's execution-day procedures are mandatory procedures compelled by the U.S. Constitution to protect the rights of inmates facing execution. If Berchelmann makes such a finding, that would be an expansion of constitutional rights, he said.
Babcock says in an interview, "That would expand constitutional rights of prisoners by a large margin."
In his closing argument, Babcock also contended that opponents of the death penalty started the public furor over the Richard case and have put Keller's job in jeopardy. "They don't like the way she decides death penalty cases, and they want to get rid of her," he said.
In his closing argument McKetta addressed one of the most disputed issues in Keller: whether Marty told CCA Judge Cheryl Johnson, the assigned judge for Richard's case, about the calls requesting that the clerk's office remain open after 5 p.m. to receive Richard's pleadings. He said Marty, when deposed on Aug. 6, told three different versions regarding his conversation with Johnson on Sept. 25, 2007.
In videotaped testimony of his deposition, Marty said his best recollection of that conversation is he told Keller that "they were having trouble getting it" and they wanted the court to stay open. Marty testified that his use of the word "court" referred to the court building.
At one point in the deposition, McKetta said to Marty, "Really, you don't have a memory of what you told Johnson?" Marty replied, "That's correct."
Johnson denied Marty told her anything about the telephone calls when she testified at the hearing on Aug. 17. "She has had one consistent and very sharp recollection," McKetta said.
But Babcock said that when he urged Marty to remember the conversation, Marty recalled that he had informed Johnson about the telephone calls from TDS.
In two of its five charges against Keller, the judicial conduct commission alleges that Keller's failure to follow the CCA's execution-day procedures and her failure to require or assure compliance by Marty and CCA clerk's office staff "with respect to Mr. Richard's right to be heard," constitutes "willful and persistent conduct" that is inconsistent with proper performance of her duties as a judge and that "casts public discredit on the judiciary or the administration of justice."
Babcock has focused much of his attention on the role the TDS lawyers and staff played in the events leading up to Richard's execution for the rape and murder of Lucille Dixon, a 53-year-old nurse who lived in Hockley.
While questioning Dow on Aug. 18, Babcock contended that Dow should have called Marty or Johnson after learning that the clerk's office would not remain open after 5 p.m. Texas Rule of Appellate Procedure (TRAP) 9.2 allows a party to file pleadings with the clerk of an appellate court or judge on the court who is willing to accept the filing, Babcock said.
Babcock told Dow that he was not denied an appeal in Richard's case. "Ýou didn't ask," he said.
When questioned by McKetta, Dow said he did not know that Johnson was the assigned judge for Richard's execution. McKetta also pointed out that TRAP 9.6 requires parties and counsel to comment with an appellate court about a case only through the court's clerk.
But Babcock says in an interview that the concern that TRAP 9.6 raises is about ex parte communications with a judge. "How can Rule 9.2 allow lawyers to get a judge to accept a filing unless they can talk to him?" Babcock asked.
In questioning Fox, Babcock elicited testimony that she did not try to file Richard's pleadings in the CCA after Acosta told her not to bother in a 5:56 p.m. telephone call on Sept. 25, 2007. During her testimony Aug. 17, Fox said she left the documents on a credenza in the TDS Austin office.
Substantive v. Administrative
Keller has testified in the hearing that she told Marty "no" twice in the phone conversation in which he asked about the clerk's office remaining open. But, according to Keller, she was merely complying with state statute and a CCA tradition when she said the clerk's office closes at 5 p.m.
Texas Government Code §658.005 sets the normal office hours of state agencies at 8 a.m. to 5 p.m., although the statute authorizes an agency's chief administrator, if he or she deems it necessary, to keep an office open during other hours. Keller is the chief administrative officer for the criminal appeals court.
McKetta asked Keller on Aug. 19, "Would you not agree that each time you said, 'No' on Sept. 25, 2007, it had consequences?"
Keller responded, "It did not, because the clerk's office closed at 5, regardless of what I said."
McKetta also asked Keller whether it is correct that, knowing what she knew on Sept. 25, 2007, and based on the questions that Marty had asked her, she would not do anything different if asked the same questions today.
"That is correct," Keller said.
While the CCA had an execution-day policy on the day of Richard's execution, those procedures were not in writing at that time. The now-written policy requires all communications regarding an imminent execution to go to the judge assigned to handle the case.
But Marty testified in his deposition, "I had no idea that there was an unwritten policy that case matters outside substantive matters should go to the assigned judge."
Keller testified that she did not think Marty had brought her a substantive matter when he asked about keeping the clerk's office open past 5 p.m. that day. "I did not believe that I was making a decision," she said.
McKetta pointed out that Keller said "no" twice during her brief conversation with Marty. "When you said 'no' twice, you thought that was not a decision?" McKetta asked.
During his closing argument, McKetta said that both Marty and Acosta testified they believed Keller had made a decision with which they had to comply.
Babcock concluded his argument by describing the charges against Keller as a "travesty" and telling Berchelmann, "You have an opportunity to prevent it."
Berchelmann will report his findings to the 13-member judicial conduct commission. No deadline is set for the judge to make that report, but Berchelmann said he would get right to work on it.
Seana Willing, the judicial conduct commission's executive director, says in an interview that the commission will give both sides an opportunity to object to the findings and will hear arguments in the case if necessary. The commission's options are to dismiss the complaint against Keller, censure her or recommend to the Texas Supreme Court that she be removed from the bench.
Willing says, "I feel really good about our case. . . . We have met our burden in every element that we need to prove our case."
But Babcock also says he feels good about the case. "I don't think they [the commission] proved anything," he says.
