A judge who should hope for mercy



By RICK CASEY Copyright 2009 Houston Chronicle
Feb. 19, 2009, 9:27PM

Judge Sharon Keller, who heads the state’s highest court on criminal 
matters, is in the dock facing charges that could lead to her removal 
from office.
She should hope for more mercy than she has shown.
This is a woman who voted to deny freedom to a man imprisoned for 
rape even after DNA evidence showed the sperm belonged to someone 
else. Her argument: He might have worn a condom.
Later evidence provided proof of his innocence even she couldn’t 
explain away.
This is a woman who, with her colleagues, appointed grossly 
incompetent lawyers to handle appeals for indigent death row inmates 
and then said, “Sorry, your client had his chance,” when skilled 
lawyers later came in to try to clean up the messes.
This is a woman who, a week before Christmas in 2002, voted to deny 
freedom to a man who under pressure had accepted a plea bargain for a 
crime that new evidence showed — “unquestionably,” according to the 
trial judge who heard the evidence — he did not commit.
Now, Keller stands accused of five violations of the state 
constitution or its judicial code of conduct.
A stunning narrative

The case involves events on Sept. 25, 2007. At 9 a.m. the U.S. 
Supreme Court agreed to hear a case that would determine whether 
lethal injection is “cruel and unusual punishment.” The state of 
Texas was scheduled to use lethal injection to execute Michael Wayne 
Richard at 6 p.m.
Based on months of investigation and dozens of interviews, including 
of Keller’s fellow Court of Criminal Appeal judges and staff, the 
State Commission on Judicial Conduct put together a stunning 
narrative of Keller’s actions.
We already knew that Keller and the other judges were aware of the 
Supreme Court decision. We didn’t know that the court’s general 
counsel, Edward Marty, had started drafting a proposed order in 
anticipation that Richard’s lawyers would file a request for a stay .
Nor did we know that Judge Tom Price had drafted a dissenting opinion 
and circulated it to the other judges, including Keller. Nor that all 
the judges were notified about 2:40 p.m. that the Harris County 
District Attorney’s Office had reported that Richard’s lawyers were 
planning to file a request.
Others were prepared

The Supreme Court decision was so much on the court’s mind that Judge 
Cathy Cochran forwarded to all her colleagues a copy of the Kentucky 
Supreme Court decision that was being challenged.
Under court procedures, Judge Cheryl Johnson was the designated judge 
who was supposed to receive all messages regarding Richard’s case. 
She and Marty planned to stay at the office to receive any messages 
until Richard was executed.
Chief Judge Keller went home early and was called shortly before 5 
p.m. by Marty. Richard’s lawyers were having computer problems and 
wanted the clerk’s office to stay open until 5:20 or so to receive 
their filing. Rather than forward the message to Johnson as policy 
required, Keller instructed Marty to tell the lawyers no. The lawyers 
made attempts up until 6 p.m. to deliver the filing but were told 
nobody was there. Richard was executed at about 8:20 p.m.
Two days later, the Supreme Court stopped all executions by injection 
based on the same arguments Richard’s lawyers made. Richard was the 
only convict executed until six months later, when the Supreme Court 
OK’d lethal injection as constitutional.
Here’s the stunner: The morning after Richard’s execution, the nine 
judges had their weekly conference. At the end of it some of the 
judges expressed surprise that Richard’s lawyers hadn’t submitted a 
filing.
Cochran even raised the question — hypothetically, she thought — of 
what would happen if the lawyers showed up after the clerk’s office 
closed. She said the court should accept the filing anyway. According 
to witnesses, Keller said, “The clerk’s office closes at 5 p.m. It’s 
not a policy, it’s a fact.”
Keller lacked the decency or the courage to tell her colleagues about 
the call she had received.

rick.casey@chron.com

http://www.chron.com/disp/story.mpl/metropolitan/casey/6271888.html