Keller to attack credibility of defense lawyers at her trial

ETHICS: DEATH ROW APPEAL



Judge to dispute tale of computer problems causing delay.

By Chuck Lindell
AMERICAN-STATESMAN STAFF
Sunday, August 02, 2009

Judge Sharon Keller, facing potentially career-ending charges that 
she improperly closed her court to a death row appeal, will argue 
that defense lawyers fabricated — or at least exaggerated — computer 
problems the day Texas executed Michael Richard.

Keller's new accusation is an attack on the credibility of Richard's 
lawyers, three of whom are expected to be called as witnesses when 
her special trial convenes Aug. 17 in San Antonio.

The attack, a recent addition to Keller's defense strategy, also 
seeks to undermine the narrative that has emerged against the judge: 
that she refused a reasonable request to keep the Texas Court of 
Criminal Appeals open past 5 p.m., penalizing Richard for events 
outside his control — computerbreakdowns experienced by his lawyers.

"Judge Keller's position will be that there was no computer problem," 
said her lawyer, Chip Babcock. "There will be testimony that 
(Richard's lawyers) — maybe — had e-mail problems for a few minutes 
in the afternoon."

However, in recent pretrial depositions, provided to the American-
Statesman by agreement of all parties, Richard's lawyers testified 
under oath that the computer difficulties were real and delayed work 
on Richard's briefs.

Even Keller's forensic computer expert, Eric Shirk, testified in a 
July 17 deposition that he could not rule out computer trouble — only 
that he found no evidence of a "series of computer crashes," which is 
how Richard lawyer David Dow described the problem shortly after 
Richard was executed in 2007.

And yet the depositions also show that even without the malfunctions, 
it was questionable that Richard's lawyers could have completed their 
work before 5 p.m., the court's usual closing time.

Last February, the Commission on Judicial Conduct charged Keller with 
failing to ensure Richard's right to be heard in court when she 
refused a request from the inmate's lawyers to file his briefs after 
hours. Richard was executed that night.

Neal Manne, a lawyer representing the Texas Defender Service, a 
nonprofit legal agency that represented Richard, said questions about 
computer problems are "a legally irrelevant sideshow."

"The issue of whether there were or were not computer problems is 
completely irrelevant to the charges made against Judge Keller," 
Manne said. Richard's briefs "could've been late because of computer 
problems, which is in fact the case, or 101 other problems. But did 
she act properly when asked? That's the issue at trial."

Babcock said the computer issue matters because the "myth of the 
computer problem" skewed media coverage of the Richard case. "A lot 
of the coverage spins out a story that isn't true," he said.

"One of the issues is whether Judge Keller brought discredit on the 
judiciary, and the commission has newspaper articles to admit into 
evidence. Much of the publicity has been premised on this 
'circumstances beyond the control' of Mr. Richard's lawyers," Babcock 
said. "I think our version is going to be that they just didn't do 
their job that day."

A credibility contest?

The conflicting perspectives on the computer issue pose one of the 
challenges for District Judge David Berchelmann Jr., who will preside 
over Keller's trial. Berchelmann's job is to produce "findings of 
fact" for the 13-member State Commission on Judicial Conduct, which 
will use the document to determine whether to dismiss the charges 
against Keller, reprimand her or recommend that she be removed from 
office.

The legal dispute goes back to Sept. 25, 2007 — execution day for 
Richard. That morning, the U.S. Supreme Court agreed to accept a 
Kentucky case challenging lethal injection as cruel and unusual 
punishment.

Richard's lawyers shifted gears to argue that their client deserved a 
stay of execution while the nation's highest court deliberated the 
lethal injection issue.

According to depositions, working from the Texas Defender Service's 
office in Houston, lawyer Alma

Lagarda began drafting Richard's briefs about noon. Dow, the 
organization's litigation director, joined her about 2:45 p.m., and 
Lagarda e-mailed Dow her first draft about 3:30.

The first sign of trouble came around 4 p.m., when Dow tried to send 
his changes back to Lagarda and discovered that nobody in the office 
could send or receive e-mail, according to sworn testimony from Dow 
and Lagarda.

All computers, however, continued to function, allowing Lagarda and 
Dow to finish the brief about 4:30 p.m. by working from printouts. 
Still, several efforts to e-mail the document to the Texas Defender 
Service's office in Austin — where the Court of Criminal Appeals is 
located — did not succeed until 4:51 p.m., the lawyers testified. 
Then began the laborious process of making 11 copies, as required by 
court rules, on the organization's outdated printer. That didn't end 
until 5:50 p.m., according to testimony.

"The best indication is that it slowed them down by half an hour or 
an hour," Manne said.

Manne admitted that they "might have been a few minutes late even if 
there were no e-mail problems at all. But the question is: What did 
(Keller) do and was it appropriate? It's a classic legal defense to 
create a credibility contest over something that doesn't matter anyway."

But Shirk, the computer expert hired by Keller, said in his 
deposition that subpoenaed Internet records and a forensic review of 
Texas Defender Service data files turned up no verifiable computer 
crashes, which is how Dow described the problems in an opinion piece 
he wrote for The Washington Post in 2007.

When asked if his definition of crashes — "catastrophic hardware or 
software failures" — might conflict with a layman's definition, Shirk 
demurred. "The more time I spend in this business, the more I have 
less of an ability to understand what the layperson thinks," he said.

Keller's trial is expected to last three or four days. In other news 
about the proceedings:

• Keller will testify. "If they don't call her, I'll call her" to the 
stand, Babcock said.

• Cheryl Johnson, the Court of Criminal Appeals judge who was 
assigned by rotation to handle appeals in Richard's case — but who 
was not informed about the request for more time — is the only other 
judge on the nine-member court expected to testify. Witness lists 
will not be finalized until Monday.

• Others deposed and expected to testify include Abel Acosta, the 
court's deputy clerk who took the 4:45 p.m. phone call requesting 
more time, and Rindy Fox, the Texas Defender Service paralegal who 
made that call.

• Jordan Steiker, a University of Texas law professor and co-director 
of the law school's Capital Punishment Center, has been designated as 
a prosecution expert. Roy Greenwood, a longtime Austin lawyer who is 
now retired, is a defense expert.

• One deposition still needs to be taken — that of Ed Marty, the 
court's retired general counsel. On Richard's execution day, Marty 
phoned Keller at her home to say that Richard's lawyers had requested 
more time. In previous interviews with the Commission on Judicial 
Conduct, Marty and Keller offered differing versions of that 
conversation.

Marty, who left the court in July 2008, is expected to be deposed 
this week in Mobile, Ala., where he now lives. Because of the 
distance, his testimony at Keller's trial will probably be limited to 
videotapes of that deposition.

clindell@statesman.com; 912-2569


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