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. 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 Sept. 25, 2007: "We close at 5." 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 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 www.sharonkiller.com.

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.

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