Keller denies charges she closed court to death row appeal



By Chuck Lindell
AMERICAN-STATESMAN STAFF
Wednesday, March 25, 2009

Sharon Keller, facing charges that could lead to her removal as 
presiding judge of the state's highest criminal court, said in a 
legal brief Tuesday that she did not intentionally close her court to 
a death row inmate on the day of his 2007 execution.

In her formal response to charges filed in February, Keller said 
blame more properly lies with inmate Michael Richard's lawyers, who 
she saidfailed to promptly draft their appeal and did not seek other 
available avenues to file the document with the Court of Criminal 
Appeals.

"Judge Keller did not, and could not have if she wanted to, close 
access to the court" under the state's appellate rules, her lawyer, 
Chip Babcock, stated in the brief filed on her behalf.

In February, the State Commission on Judicial Conduct charged Keller 
with violating her duty and bringing discredit upon the judiciary for 
refusing to allow Richard's lawyers to file an after-hours appeal 
shortly before his execution.

She will face a public hearing, which has yet to be scheduled, and 
could be removed from office, reprimanded or exonerated.

The controversy began the morning of Sept. 25, 2007, when the U.S. 
Supreme Court agreed to examine whether lethal injection was a cruel 
and unusual punishment.

Lawyers for Richard, set to be executed that night, said they assumed 
U.S. executions would stop until the high court ruled, and they began 
drafting an appeal. But when computer problems delayed the printing 
of the document, Richard's legal team called to request that the 
court stay open a few minutes past 5 p.m.

The court's general counsel, Ed Marty, called Keller to relay the 
request. She refused, and Richard was executed at 8:20 that night.

In the response filed Tuesday, Keller said she was never informed 
that Richard's lawyers were having computer problems. In addition, 
Keller said she believed Richard's lawyers were asking to keep the 
clerk's office open past 5 p.m. — something that is never done.

But Keller said that closing the office did not bar Richard's lawyers 
from filing their appeal. Court rules allow appeals to be filed with 
the court's general counsel or any of its nine judges — which 
Richard's lawyers should have known because they successfully filed 
an after-hours appeal in 2003, Keller said.

"The judges' ... phone numbers at the court are all listed in the 
blue pages of the phone book," Keller's reply brief states. "Mr. 
Marty's phone number was listed on his letterhead and known to 
(Richard's lawyers)."

Texas Defender Service, a nonprofit legal group that represented 
Richard, said Tuesday that its lawyers followed execution day 
procedures. By acting unilaterally and not informing other judges of 
her decision, Keller disregarded those procedures, the group said.

"Nothing in today's response changes the fact that Judge Keller 
knowingly broke the rules," lawyer Neal Manne said. "The commission 
has properly focused on Judge Keller's conduct and has not in any way 
suggested that Texas Defender Service acted improperly or was at fault."

Richard was executed for the 1986 rape and murder of Marguerite Dixon 
in her Hockley home. He was on parole for burglary and auto theft 
convictions.

The next step in Keller's case will come when the Texas Supreme Court 
appoints a state district judge or appellate judge to preside over 
her hearing.

After the hearing, which will resemble many civil court trials, the 
judge will issue findings to the State Commission on Judicial 
Conduct, which will vote to exonerate, rebuke or begin proceedings to 
remove Keller from office.

clindell@statesman.com; 912-2569