Twenty Texas lawyers have joined in a complaint to be filed with the State Commission on Judicial Conduct against Court of Criminal Appeals Presiding Judge Sharon Keller for closing the CCA clerk’s office at 5 p.m. on Sept. 25, preventing an inmate’s attorneys from filing an emergency request to stay his execution.
Within hours after the CCA closed its doors, the state executed Michael Richard for a 1986 murder. The U.S. Supreme Court had agreed earlier on the day that Richard was executed to consider a Kentucky case, Baze v. Rees, regarding whether the lethal injection method of execution constitutes cruel and unusual punishment.
Jim Harrington, director of the Texas Civil Rights Project (TCRP), said at a news conference Oct. 10 that Richard’s attorneys had to file a motion to stay in the CCA before they could file a motion to stay with the Supreme Court. Harrington said that Keller’s decision short-circuited the effort to get Richard’s motion before the high court.
“This is the kind of conduct that really shocks people’s morality,” Harrington said.
“Justice should be fair and competent, and here it was not,” said Charles “Chuck” Herring Jr., who joined Harrington at the news conference. “The result was a man died on a day he should have lived,” said Herring, one of the attorneys who joined in filing the complaint against Keller and a partner in Austin’s Herring & Irwin.
Harrington says the TCRP planned to file the complaint with the judicial conduct commission on Oct. 11.
Broadus Spivey, a former State Bar of Texas president and a partner in Austin’s Spivey & Grigg, is another of the 20 attorneys joining in filing the complaint. Spivey says in an interview that he was appalled when he read newspaper reports that Keller closed the court’s office before Richard’s attorneys could file the motion for a stay.
“It shows an amazing lack of sensitivity to constitutional rights,” Spivey says. “No matter how guilty a person is, give him a right to be heard.”
In their law practices, Herring and Spivey represent clients in cases involving lawyers’ professional responsibility.
Harrington said he plans to file a grievance with the State Bar of Texas on Thursday Oct. 11 asking the Bar to revoke Keller’s law license.
CCA Judge Cheryl Johnson declines comment on the complaint. Johnson says she was the judge assigned to handle late motions in Richard’s case but she was not told that his attorneys had requested the court to remain open past 5 p.m. “I was out of the loop,” she says.
Ed Marty, the CCA’s general counsel, says he had heard from other attorneys during the day on Sept. 25 that Richard’s attorneys planned to file the motion for a stay, but he personally never heard from Richard’s attorneys.
Marty says the first time he learned that Richard’s attorneys had requested the CCA to remain open late on Sept. 25 was at about 4:45 p.m. that day when he received a call from the CCA clerk’s office. Marty says he told Keller of the lawyers’ request to keep the clerk’s office open and asked her if it was the court’s policy to close at 5 p.m. and she told him it was.
David Dow, a University of Houston Law Center professor and Richard’s lead counsel, did not immediately return a telephone call seeking comment.
The attorneys argue in the complaint against Keller that her actions denied Richard’s right under the Texas Constitution to access to the courts and his due process rights under the U.S. Constitution.
The attorneys also argue in the complaint that Keller’s action violated provisions of the Texas Code of Judicial Conduct by bringing the integrity of the judiciary into disrepute, by failing to avoid impropriety or the appearance of impropriety, and by not performing the duties of her judicial office impartially and diligently.
Keller did not immediately return a telephone call seeking comment about the complaint.
The attorneys who are filing the complaint are asking the commission to take disciplinary action, including possibly removing Keller from office, Harrington said.
Herring said the attorneys also want to call attention to the need for the CCA to have a procedure in place to handle last-minute emergencies. He said other courts allow electronic filing of documents and questioned why the CCA does not allow it with life and death matters.