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A Texas Judge on Trial: Closed to a Death-Row Appeal?

Thursday, Aug. 13, 2009
A Texas Judge on Trial: Closed to a Death-Row Appeal?
By Hilary Hylton / Austin



Soft-spoken and a devout Christian, Judge Sharon Keller presides as chief justice of Texas' highest criminal court. She's also known as "Sharon Killer" by her opponents, who are going to see her in court next week on charges of judicial misconduct. They charge that Keller refused a condemned man a last-minute appeal in 2007 and now she faces a trial in a San Antonio courtroom that could lead to her removal and will certainly focus wide attention on Texas' enthusiasm for the death penalty.

Keller finds herself at this pass because of a four-word sentence she uttered on September 25, 2007: "We close at five." According to a newspaper interview with Keller in October 2007 and pretrial testimony last year, she said those words to Ed Marty, general counsel for the Texas Court of Criminal Appeals (CCA). As the court's logistics officer, Marty had called the judge at the behest of lawyers for Michael Richard, 49, who had been on Death Row for two decades and whose execution was scheduled for that evening. The lawyers were allegedly having computer trouble and problems getting last-minute paperwork to the Austin court. Keller was reportedly at her home dealing with a repairman that afternoon when she she got the request — and made her reply. Richard's lawyers failed to meet the deadline, and at 8:23 p.m. Richard was declared dead following a lethal injection. (Read a brief history of lethal injection.)

An outcry followed. "This execution proceeded because the highest criminal court couldn't be bothered to stay an extra 20 minutes on the night of an execution," Andrea Keilen, executive director of Texas Defender Service told ABC News in 2007. Not only did Texas defense attorneys quickly file complaints with the state's judicial oversight commission, in an unprecedented move the National Association of Criminal Defense Lawyers joined the filing. Newspapers across the state and nation weighed in with scathing editorials and anti-death penalty campaigns went on the attack. The Texas Moratorium Network set up Sharon Keller Should Resign or Be Removed From Office - Home.

A year and a half later, in February, Keller was charged by the State Commission on Judicial Conduct with "willfill and persistent" failure to follow the CCA's protocols for last-minute appeals and for bringing public discredit on the court. Opponents say her actions displayed a dogmatic affinity for the death penalty. But her supporters, some of whom do not share her conservative views, contend she was following the rules and was not responsible for the shortcomings of defense attorneys. They also point to Keller's work doubling the number of public defenders' offices in Texas and boosting their budget from $19 million to $60 million. (Read about the debate over the death penalty.)

A special master — a judge named by the state supreme court for the occasion — has been appointed to preside over the fact-finding trial. San Antonio District Judge David Berchelman Jr., a former member of the CCA, can either recommend to the commission that the charges be dismissed, or that Judge Keller be reprimanded or even removed from office by the state supreme court.

Though she handily won her elections to the bench, Keller exhibited little interest in politics during college, friends say. The bright daughter of a Dallas entrepreneur and famed restauranteur "Cactus" Jack Keller, she excelled in school and studied philosophy at Rice then law at Southern Methodist University. But 1994, while working as an appellate attorney in the Dallas prosecutor's office, she ran for a spot on the CCA and, thanks to a Republican landslide on the coattails of George W. Bush, won her seat. In her second term she ran successfully for the top slot, the court's presiding judge. Keller has consistently been part of the court's conservative voting bloc and has said she saw her election as an opportunity to balance the high court after several decades of domination by judges inclined toward the defense bar. (However, there has always been a high degree of support for the death penalty even among Democratic judges in Texas.)

The genteel-looking Keller is expected to put up a fight, even though, so far, she has been silent on the upcoming trial. In a written response to the charges, she derided the defense attorney's claims that computer trouble delayed their paperwork: "It did not take a computer to prepare and timely file...it could have been hand written and the court would have accepted it as Judge Keller informed the Commission."

She will also defend herself by discussing the man she is accused of wronging: the executed Michael Richard. Richard has a long legal history and a criminal record that evokes little sympathy. "By the time he was executed," Keller wrote in her response to the charges, "Richard had two trials, two direct appeals (including to the United States Supreme Court), two state habeas corpus proceedings and three federal habeas corpus hearings or motions." She added that the charge against her that Richard was not accorded access to open courts or the right to be heard "is patently without merit."

In 1986, two months after being released from his second prison term, Richard killed Marguerite Lucille Dixon, 53, a nurse and mother of seven. Dixon had invited him in for a cold glass of water after Richard had knocked on her front door and asked if her van was for sale. Two of her children found her. She had been sexually assaulted, then killed and her van and television stolen. A year later, Richard was on death row. After confessing, Richard claimed he was innocent, but his appeals centered on a history of alleged family abuse and his supposed IQ of 64. He told reporters he had learned to read and write on Death Row.

But the handling of Richard's appeals process is what is being contested by Keller's opponents. Richard won a new trial from the CCA because the alleged abuse he had suffered at the hands of his father had not been considered in his first trial, according to the appellate record. But Richard was convicted again in 1995 and once again given the death penalty, even after his mother and sister were allowed to testify about the alleged abuse during the punishment phase of the trial. Following a U.S. Supreme Court ruling prohibiting the execution of mentally retarded prisoners, his lawyers appealed for another trial based on his alleged IQ level. The CCA turned him down and that appeal was ongoing when the Supreme Court suddenly opened a new avenue for appeal on the day Richard was scheduled to die.

The high court announced it had agreed to hear arguments in Baze v Rees, on whether Kentucky's use of lethal injections (the same method Texas uses) violated constitutional proscriptions against cruel and unusual punishment. Richard's attorneys with the Texas Defender Service hoped to use the Baze case to win a delay, but they would have to go through the CCA in Austin first before approaching the Supreme Court for a stay and, as the execution was looming, they would have to act very quickly. Frantically trying to assemble their paperwork — the CCA did not permit e-mail filings, but now does — lawyers in Houston and Austin conferred over the phone, back and forth. They claimed they were further slowed by computer failures, an issue on which experts on both sides are expected to testify.

One issue is whether Keller was emphatically rejecting any pleadings to the court, or simply noting that the clerk's office closed at 5 p.m., as required by state law. Keller's attorneys will most likely argue the latter, saying that everyone knows that Texas appellate law provided for after-hours filings directly to judges. Friends said Keller was bewildered by the fallout. In the days just after the event, she told the Austin American-Statesman that she was not given a reason why the attorneys wanted the clerk's office to stay open. "They did not tell us they had computer failure and given the late request, and with no reason given, I just said, 'We close at five.' I didn't really think of it as a decision as much as a statement," the newspaper quoted Keller as saying.

Keller has turned to noted defense attorney Charles "Chip" Babcock — he represented Oprah Winfrey in 1998 when the talk show host was unsuccessfully sued for slander by Texas cattlemen. Babcock told the Austin American-Statesman he will question the "myth" of the computer problem and the last-minute actions of Richard's appellate lawyers. "I think our version is going to be that they just didn't do their job that day," Babcock said. It is a tactic that Neal Manne, representing the Texas Defenders Service, rejects as a "sideshow" designed to deflect from the real issue — Judge Keller's actions that afternoon.

One sobering what-if: even if Richard had gotten his appeal accepted by the U.S. Supreme Court, he would most likely have extended his life by only eight months. The high court eventually upheld the constitutionality of Kentucky's use of lethal injections.

A Texas Judge on Trial: Closed to a Death-Row Appeal? - TIME
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