Keller Files 7 Six phone calls tell story of execution day



By Chuck Lindell | Friday, June 5, 2009, 07:00 AM

Six telephone calls tell the story about the events leading to the 
execution of Michael Richard and the misconduct charges against 
Sharon Keller, chief judge of the state’s highest criminal court.

These conversations will play a key role in Keller’s August special 
trial on charges that she denied Richard his constitutionally 
guaranteed right of access to the courts.

All events took place on Sept. 25, 2007 — execution day for Richard, 
who raped and murdered a woman in 1986.

Call #1, 4:45 p.m. — Blaming computer problems for printing delays, 
Rindy Fox, a paralegal for the Texas Defender Service, phones the 
Texas Court of Criminal Appeals to plead for more time to file a stay 
of execution request. Deputy clerk Abel Acosta says he will ask Ed 
Marty, the court’s general counsel, or internal lawyer.

Call #2, moments later — Marty telephones Keller at her home (the 
judge left court in the afternoon to meet a repairman but was 
available by phone and fax). The two have different recollections of 
their conversation. Here’s Marty’s version, as detailed in the State 
Commission on Judicial Conduct’s charges against Keller:

Marty: “They want to hold the court open.”

Keller refuses, then asks why.

Marty: “They wanted to file something, but they were not ready.”

After Keller again says no, Marty directs Acosta to refuse any filing 
past 5 p.m.

According to Keller’s version of the conversation, she believed 
Richard’s lawyers asked the court clerk’s office to stay open past 5 
p.m. despite a state law that sets regular office hours at 8 a.m. to 
5 p.m. By denying the request, Keller said she did not believe she 
was closing access to the court because Richard’s lawyers could file 
petitions directly with any court judge (see Keller Files #3)

Call #3, 4:48 p.m. — Acosta calls Fox to say the office will close on 
time. According to the charges against Keller, Fox offers to drop the 
briefs off with a security guard, but “Acosta replies he did not know 
what good that would do because no filing would be accepted after 5 p.m.

Call # 4, shortly after 5 p.m. — Keller calls Marty from home, asking 
if Richard’s lawyers had filed anything before the court closed. He 
says no.

Call #5, between 5 and 6 p.m. — Richard’s lawyers phone Acosta and 
offer to fax or e-mail the briefs. “Acosta tells them that the 
decision had already been made not to accept a filing after 5 p.m.,” 
Keller’s charges said.

Call #6, shortly before 6 p.m. — Richard’s lawyers have their fourth 
conversation with Acosta, telling him the briefs are on the way to 
court. “Acosta tells TDS not to bother, because no one was there to 
accept the filing,” Keller’s charges said.

Richard was executed for rape and murder around 8:20 p.m.

One other communications-related detail:

In a 2:40 p.m. e-mail from Marty, all nine judges on the court were 
told to expect briefs seeking to halt Richard’s execution. The news 
came via the Harris County District Attorney’s Office, who had spoken 
to Richard’s lawyers earlier.

Expecting an appeal, three judges worked late that night (Cheryl 
Johnson, Tom Price and Paul Womack), while the others were available 
by phone.

None of the other judges were told that Richard’s lawyers had asked 
for more time, which led to an interesting exchange between judges on 
the following day — the subject of the next Keller Files.

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