A she said-he said dispute over who said what in a series of telephone calls preceding the state’s execution of Michael Richard in 2007 could become a key issue in Texas Court of Criminal Appeals Presiding Judge Sharon Keller’s upcoming hearing on misconduct charges.

In a hearing beginning Aug. 17 in San Antonio, a state district judge appointed by the Texas Supreme Court as special master in In Re: The Honorable Sharon Keller will determine whether Keller’s actions on the day Richard was executed violated the Texas Constitution and the Texas Code of Judicial Conduct, as alleged by the State Commission on Judicial Conduct. A finding by 37th District Judge David Berchelmann Jr. that Keller committed judicial misconduct ultimately could result in her removal from the bench.

The judicial conduct commission initiated formal proceedings against Keller in February, bringing five charges against her at that time. In June, the commission filed its first amended notice of formal proceedings alleging Keller violated additional provisions of the state’s Code of Judicial Conduct in connection with the five charges.

At issue in the case is whether Keller’s actions prevented Texas Defender Service (TDS) lawyers who represented Richard from filing a petition for writ of prohibition and a motion for stay of execution on Sept. 25, 2007, the day the state executed Richard. Richard had been on death row for 20 years; in 1987 he was found guilty of the capital murder of Hockley nurse Marguerite Lucille Dixon.

The morning of Sept. 25, 2007, the U.S. Supreme Court had agreed to hear arguments in Baze v. Rees to determine whether Kentucky’s method of execution by lethal injection constituted cruel and unusual punishment, and Richard’s attorneys were rushing to file his pleadings on that issue. The fact that Richard’s attorneys never filed those pleadings led to an outpouring of outrage against Keller, who has served on the CCA since 1995 and has been its presiding judge since 2001.

Michol O’Connor, a Houston solo and former justice on Houston’s 1st Court of Appeals, testified in favor of a resolution to start impeachment proceedings against Keller at an April hearing of the Texas House Committee on the Judiciary and Civil Jurisprudence. The Texas House did not vote on the resolution. O’Connor says that what Keller did was “unconscionable.” Every other person in the United States who was in a similar position as Richard with regard to the lethal injection issue had their executions stayed while the high court considered Baze , O’Connor says.

In April 2008, the U.S. Supreme Court held that Kentucky’s lethal injection protocol does not violate the Eighth Amendment, and many death row inmates who received stays pending the decision in Baze received new execution dates.

But O’Connor says Keller shortened Richard’s life by eight months. “She had no right to do that,” O’Connor says.

Berchelmann, a former CCA judge, will look past the hue and cry over Keller to determine what the evidence shows.

Telephone Calls

Some of that evidence involves telephone calls between TDS staff members and the CCA clerk’s office and between the CCA’s then-general counsel and Keller. The callsbegan less than four hours before Richard’s execution, according to depositions that John J. “Mike” McKetta, the judicial conduct commission’s special counsel for Keller , provided Texas Lawyer.

McKetta, a shareholder in Graves, Dougherty, Hearon & Moody in Austin, says he released transcripts of depositions of those witnesses whose lawyers gave him permission to do so.

In a May 7 deposition, TDS paralegal Dorinda “Rindy” Fox of Austin testified that she called Abel Acosta, the CCA’s chief deputy clerk, at 4:40 p.m. on Sept. 25, 2007, to ask if TDS could file Richard’s pleadings after 5 p.m. Fox testified that she told Acosta TDS had experienced computer problems that would delay the lawyers in filing the pleadings and that Acosta told her he would have to check with someone about whether the late filing would be permitted. [ See "Out of Time," Texas Lawyer , Nov. 19, 2007, page 1.]

According to the transcript of Fox’s deposition, when Acosta called her back at 4:48 p.m., he said that “he was told to tell me they closed at 5. . . . I remember asking him was there someone else I could talk to and did — did he tell the person that we were having a computer problem and I don’t remember the exact words, but I remember what we covered.”

Paralegal Melissa Denise “Liz” Waters, a receptionist in the Austin office of TDS, testified in her June 30 deposition that she also told Acosta that TDS attorneys were having computer problems when she called Acosta around 5:07 p.m. on Sept. 25, 2007, to ask if the clerk’s office would accept an electronic filing. At that time, the CCA did not accept electronically filed documents.

Fox did not return two telephone calls seeking comment before presstime Aug. 6. Texas Lawyer ‘s effort to interview Waters resulted in a referral to, among others, Neal Manne, attorney for TDS and a partner in Susman Godfrey in Houston.

Manne says Fox has been “pretty clear and emphatic” that Acosta told her not to come down and try to file a pleading for Richard. “There is no ambiguity in that,” he says.

Acosta declines comment, and his deposition was not among those McKetta released.

Charles “Chip” Babcock, Keller’s attorney and a partner in Jackson Walker in Dallas, says Acosta denied in his deposition that Fox and Waters told him TDS was having computer problems. Babcock says he asked if Acosta was sure Fox had not mentioned any computer problems. “He said he was absolutely sure,” Babcock says.

There also are conflicts between what Keller said Ed Marty, the CCA’s general counsel at the time of Richard’s execution, told her in a phone conversation around 4:45 p.m. on Sept. 25, 2007, and what a footnote in the judicial conduct commission’s notice for formal proceedings indicates Marty recalls saying.

As alleged in the commission’s notice, Acosta called Marty after receiving Fox’s first call about staying open past 5 p.m., and Marty called Keller, who had gone home to meet a repairman. According to the footnote, Marty recalls telling Keller “they wanted the Court to stay open” or “they want to hold the court open.”

As noted in the transcript of Keller’s June 2 deposition, she testified: “He [Marty] asked whether the clerk’s office would stay open past 5. And I said, ‘No. Why?’ And he said something general. I don’t remember specifically about someone trying to file something and they weren’t ready. I don’t remember specifically. I said no.”

Texas Lawyer was unable to locate Marty for comment, and Keller declines comment on the case.

Fox’s deposition testimony indicated she believed it was the Court of Criminal Appeals, not the clerk’s office, that was closed to Richard. In her May 7 deposition, Fox testified that she called Acosta at 5:56 p.m. on Sept. 25, 2007, to tell him she was on her way to the CCA to file Richard’s pleadings. “I don’t remember his exact words, but it was something to the effect of, ‘Don’t bother. We’re closed.’ “

Fox further testified she knew that if she didn’t get Richard’s pleadings filed with Acosta that Richard would not have access to the court. “I would have thought it would be inappropriate to contact a judge in a court . . . on a case that we were working on,” Fox testified, according to her deposition.

But Austin solo Richard E. “Rick” Wetzel, the CCA’s general counsel from 1986 until 2003, says, “The clerk’s office is irrelevant to their complaint. If it’s after 5 o’clock, who cares? There are other avenues to present the papers.”

Noting that the judicial conduct commission has subpoenaed him to be a witness at Keller’s hearing, Wetzel declines further comment.

Under Texas Rule of Appellate Procedure 9.2(a), a document is filed in an appellate court by delivering it to the clerk of that court or to a judge or justice willing to accept it.

University of Houston Law Center professor David Dow, one of the TDS attorneys who worked on Richard’s writ of prohibition and stay motion, testified in a May 8 deposition that Rule 9.2(a) authorizes a filing with a willing judge.

“We assumed that the fact that the clerk’s office was saying ‘We’re closing at 5′ was tantamount to a statement that there’s not a willing judge,” Dow testified, according to the transcript of his deposition.

Dow, litigation director for TDS, a nonprofit organization with offices in Houston and Austin, did not return a telephone call seeking comment.

McKetta declines to discuss the case. “I prefer that our comments be at the hearing rather than in the media,” he says.

Babcock says at the hearing he will focus attention on the TDS claim that computer problems caused the delay in getting Richard’s pleadings to the CCA clerk’s office.

“There were no computer crashes for sure,” Babcock says. “There’s nothing in writing anywhere that reflects any e-mail problems.”

Eric Shirk, a digital forensics expert retained by Keller, testified in a July 17 deposition, “My opinion, based on the information I’ve looked at to date, is that there is no evidence supporting a series of computer problems at TDS on Sept. 25, 2007.”

But Dow testified in his deposition that the TDS office in Houston experienced a series of computer crashes over about 45 minutes beginning around 4 p.m. on Richard’s execution day. “[W]hat I mean by ‘series’ is there were multiple failures. It was not just an e-mail problem,” Dow testified.

Manne says Keller’s hearing on the ethics charges is not about computer problems. “That is irrelevant,” he says. “The question is did she [Keller] do the things she’s alleged to have done.”

Babcock says whether TDS had computer problems is relevant because the news media reported that Richard was denied relief when his lawyers were experiencing problems beyond Richard’s control. The judicial conduct commission cited much of the news coverage in its notice of formal proceedings, he says.

Commission’s Charges

The judicial conduct commission’s Feb. 19 notice of formal proceedings and June 15 amended notice list five charges related to Keller’s alleged conduct on Sept. 25, 2007:

• Keller’s failure to follow the CCA’s execution-day procedures and her failure to assure that the court’s staff complied with those procedures constitute willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as a presiding judge.

• Keller’s failure to follow the CCA’s execution-day procedures and failure to assure that the court’s staff complied with those procedures constitute 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, and her willful and persistent conduct 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, and her willful and persistent conduct casts public discredit on the judiciary or the administration of justice.

• Keller’s failure to follow the CCA’s execution-day procedures and failure to assure compliance by the CCA’s staff with respect to Richard’s right to be heard constitutes incompetence in the performance of duties of office.

As alleged in the judicial conduct commission’s notice of formal proceedings, the CCA had execution-day procedures that Keller acknowledged were in effect at the time of Richard’s execution.

But CCA Judge Cathy Cochran says those procedures were not in writing until about a month after Richard’s execution.

“We were in the process during this period [around Richard's execution] of committing to paper all the procedures,” she says.

Cochran says her perspective, based on the now-written procedures, is that when Acosta called Marty on Sept. 25, 2007, Marty should have called the duty judge assigned to handle filings pertaining to Richard. CCA Judge Cheryl Johnson, who was the duty judge that day, did not return a telephone call seeking comment.

But Cochran also says that from her perspective of what’s written down now, Keller should have said, “I’m not the duty judge. Call the duty judge.”

CCA Judge Mike Keasler says that if it was just an academic question about when the clerk’s office closes, that is an administrative question and Keller, as presiding judge, would have handled that. The general counsel and the clerk generally report to the presiding judge, Keasler says.

However, the judicial conduct commission alleges in its first amended notice that Keller knew Marty’s question related to a scheduled execution. The commission alleges Keller disregarded the CCA’s unwritten execution-day procedures when she gave instructions to Marty that had the effect of closing any further access to the CCA for Richard’s lawyers for the filing of a stay of execution based on the legal issue for which the U.S. Supreme Court had granted certiorari that same day.

Lawrence Meyers, the CCA’s longest-serving judge, says the TDS lawyers could have obtained a stay of execution for Richard if they had filed a writ of habeas corpus in the Houston trial court. Meyers says the trial court would have sent Richard’s writ application to the CCA, which at that time was considering the lethal injection issue in another case, Alba v. State. The state would not have executed Richard while the writ was pending in a court, he says.

The CCA ultimately dismissed Alba in a 6-3 decision in June 2008, holding that a claim that the lethal-injection protocol may violate the constitutional rights of the condemned is not cognizable in a writ of habeas corpus.

Babcock says one of the issues Keller’s defense lawyers will focus on during the hearing is whether the TDS lawyers did their job on Sept. 25, 2007.

Manne says the criticism of the TDS lawyers is irrelevant. “It doesn’t change the fact that Judge Keller got a call and said something,” he says.

According to Manne, the TDS lawyers had been permitted to file late at the CCA in the past. “This time they were told they couldn’t,” Manne says.

But Meyers says, “I don’t think Sharon Keller did anything improper.”

Texas Lawyer called all nine CCA judges for comment. Judges Barbara Hervey and Paul Womack decline comment. Judges Tom Price and Charles Holcomb did not return a telephone call to each of their offices.

Keller’s case is not likely to end anytime soon. Seana Willing, the judicial conduct commission’s executive director, says that after the hearing, Berchelmann will report his findings of fact to the 13-member commission. Willing says both sides can file objections to the special master’s findings. If there are objections, the commission will conduct a hearing in which the special counsel and Keller’s defense attorneys can present arguments, she says.

Willing says the commission can accept or reject all or part of Berchelmann’s findings and can even send the case back to Berchelmann for additional findings.

When the commission reaches a decision, Willing says, its options are to dismiss the complaint against Keller, censure her or make a recommendation to the state Supreme Court that she be removed from office.

Notes Willing, “It could take a while.”