Judge's ethics case may hinge on phone calls
Recollections differ about Keller's two exchanges on day of execution.
By Chuck Lindell
AMERICAN-STATESMAN STAFF
Sunday, February 22, 2009
Sharon Keller picked up the phone at her Austin home two times on the
day death row inmate Michael Richard would be executed.
What she said could determine whether Keller continues as presiding
judge of the state's highest criminal court.
Both conversations will play a central role at the as-yet-unscheduled
trial on charges that Keller violated her judicial duty by refusing
to accept Richard's appeal after 5 p.m. on his execution date.
Keller's unilateral refusal ignored Court of Criminal Appeals rules
on death row appeals and, according to charges filed Thursday by the
State Commission on Judicial Conduct, violated ethics rules by:
• Failing to ensure proper access to the legal system.
• Eroding public confidence in the fairness of judges.
Beyond revealing dysfunction within the normally secretive nine-
member court, the charges contained previously unknown information
about events leading to Richard's execution on Sept. 25, 2007 —
including details of the two key phone conversations involving Keller.
The information was compiled during a yearlong investigation by the
Commission on Judicial Conduct — including closed-door hearings last
June, August and October and interviews with several Court of
Criminal Appeals judges.
Keller will have an opportunity to answer the charges in a written
response due to the commission in early March. But the main event
will be her trial before a specially appointed judge who will
recommend one of three outcomes for Keller: exoneration, reprimand or
removal from office.
Keller is the highest-ranking Texas judge to face this kind of public
trial. Only three have been held in recent years, all involving
county justices of the peace.
The first phone call
On the morning of Sept. 25, the U.S. Supreme Court announced that it
would consider whether lethal injection was cruel and unusual
punishment, a development that was likely to delay all U.S.
executions until the high court ruled.
Keller left work early that afternoon to meet a repairman at her
home. By then, all nine Court of Criminal Appeals judges knew
Richard's lawyers were working on a stay of execution request, thanks
to a 2:40 p.m. e-mail alert from Ed Marty, the court's general counsel.
The judges also polled themselves in the afternoon and decided 5-4
that the Supreme Court review would not qualify Richard for a stay,
essentially deciding the case before receiving Richard's briefs.
Meantime, Richard's lawyers were running into persistent computer
problems and, at 4:45 p.m., asked the court clerk's office to stay
open "a few minutes late" to accept the stay request, according to
the charges against Keller.
Marty picked up the phone to relay the request to Keller.
It was a short conversation, but they dispute what was said. Marty
recalls saying that Richard's lawyers "wanted the court to stay open
late." Keller says Marty asked only about keeping the clerk's office
open past 5 p.m. — not the court — and that her answer reflected
common practice: All clerks went home at closing time.
"No," she told Marty.
At 4:48 p.m., Richard's lawyers at the Texas Defender Service were
told that the clerk would not accept any filing after 5 p.m. The
lawyers offered to leave the stay request with a security guard or to
e-mail or fax the document, to no avail.
They tried again at 6 p.m., telling chief deputy clerk Abel Acosta
that the document was on its way to court. "Mr. Acosta (said) not to
bother, because no one was there to accept the filing," according to
the charges against Keller.
The second phone call
Shortly after 5 p.m., Keller telephoned Marty to ask whether
Richard's lawyers had filed anything. The answer was no.
That conversation, though short, will be raised at Keller's trial in
an attempt to show that she was fully aware of the consequences of
her decision to refuse an after-hours filing, said Seana Willing,
executive director of the commission.
Keller, however, will argue that both phone calls have been
misconstrued.
Keller never intended to close the court — she doesn't have that
authority — nor did she think that closing the clerk's office
thwarted Richard's lawyers from filing a late appeal, said Chip
Babcock, Keller's lawyer.
The Texas Defender Service uses experienced death penalty lawyers who
should have known that judges are always available for late filings
on execution days, yet they tried only to work through the clerk's
office, Babcock said.
Keller "is being made a scapegoat on this deal, and she shares very
little of the blame," Babcock said. "If I've got a death penalty
case, I don't ... call the clerk at 5 (p.m.) when I know the guy is
going to be executed at 6. I don't care about computer problems, you
hand write it or get a manual typewriter. You get it there in the
morning."
Jim Marcus, a co-founder of the Texas Defender Service who is now an
adjunct clinical law professor at the University of Texas, said
blaming Richard's lawyers was a distraction.
Keller's court did not have a written policy on how to file after-
hours pleas until two months after Richard was executed, he said.
"I never even knew there was a policy of assigning a duty judge to
executions, and I've been doing this for 15 years," Marcus said.
"Plus, the idea of drawing a distinction between the clerk's office
and the court is a little bizarre. I've never encountered a court
where you can file documents by bypassing the clerk's office."
Disorder in the court
Appellate courts are designed to be collaborative and foster a robust
give and take between judges. But the charges against Keller reveal a
distinct lack of cooperation on the Court of Criminal Appeals.
Keller did not inform her eight peers about Richard's request to file
late. Nor did she follow court rules and refer the question to Judge
Cheryl Johnson, who was assigned by rotation to handle any appeal
from Richard.
Johnson and at least three other judges worked late that night in
anticipation of a late appeal, but Marty did not tell them about
Richard's request — even though he spoke to several judges after 5 p.m.
Marty has since retired as general counsel.
The day after Richard was executed, all nine judges met in conference
to discuss pending cases. Save for Keller, none knew that Richard had
been turned away, and several expressed surprise that Richard's
lawyers had filed nothing with the court.
Even so, Keller did not disclose the events of the night before,
according to the charges against her.
clindell@statesman.com; 912-2569
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