Texas judge ended day as death row appeal waited


By PAUL J. WEBER
The Associated Press
Sunday, August 16, 2009

SAN ANTONIO -- As lawyers frantically tried to file the last-minute
appeal that could have halted the execution of a death row inmate,
the Texas judge who oversaw the only court who could hear it was
preparing to shut the doors for the day.

"We close at 5," Judge Sharon Keller told a court staffer Sept. 25,
2007.

The appeal was never heard, and four hours later, convicted killer
Michael Wayne Richard was executed. Now it's Keller who will be
before a judge, facing charges that could end her career in a special
trial that begins Monday in San Antonio. Denying the rights of a
condemned man is among five judicial misconduct charges that Keller,
the presiding judge of the Texas Court of Criminal Appeals, is up
against.

Nicknamed "Sharon Killer" among critics for a tough-on-crime
reputation crafted over the years, Keller is the highest-ranking
judge in Texas to be put on trial by the state Commission on Judicial
Conduct. The judge overseeing the trial will submit a report to the
commission, which could dismiss the charges, issue a censure or
suggest Keller be removed from the bench.

Keller, a Republican who has served on the court since 1994, has not
spoken publicly since being charged in February. Her attorney, Chip
Babcock, said the widely repeated narrative of what happened the day
Richard was executed isn't accurate.

"The truth is, the court was never closed to them," Babcock said.
"They always had the ability to file."

There's a lot more to the story than late paperwork.

On the morning of Richard's execution, the U.S. Supreme Court agreed
to review a Kentucky case over whether unconstitutional pain and
suffering was caused by a three-drug combination used in executions -
the same lethal cocktail used in Texas.

Richard's lawyers sprung to work. The high court's decision opened a
new window for a reprieve, but Richard's lawyers say the good timing
of the Supreme Court case gave way that afternoon to bad luck:
computer problems. E-mail failures slowed down drafting an appeal,
they said.

The Texas Court of Criminal Appeals, the state's court of last resort
for death row inmates, closed at 5 p.m. Richard was represented by
the Texas Defender Service, which called the court and asked for more
time.

Keller, who had left the court earlier that afternoon to meet a
repairman at home, got a phone call from the court around 4:45 p.m.
to ask if the clerk's office could stay open late. She said no, and
the appeal never made it to the court. Richard was executed at 8:23 p.m.

A week later, Keller told the Austin American-Statesman that she was
never given a reason behind the question, so she simply said, "We
close at 5." According to depositions in the case provided to The
Associated Press, Keller said she never knew Richard's lawyers were
having technical issues.

"If there had been some comment about computer problems, I would have
started thinking in a different direction," Keller said in a June
deposition.

Keller had no right to turn away the appeal even if there was an
explanation, said Neal Manne, a lawyer who represents Texas Defender
Service, a nonprofit group that represents mostly indigent defendants
in capital murder cases.

"Who cares? To me, it doesn't matter if they had computer problems at
all," Manne said. "If what Judge Keller did was misconduct, the
nature or existence of this computer issue doesn't change that."

The case was widely publicized around the country, and fallout from
the Richard case flooded the commission with complaints from lawyers.
Newspaper editorials roundly rebuked Keller, and a state lawmaker
tried impeaching her.

Keller, 56, is expected to testify during the trial. Her defense will
include allegations that Richard's lawyers exaggerated computer
problems, and that they should have known an appeal could be given to
a judge even if the clerk's office is closed. A duty judge was at the
court that night.

The Richard saga energized opponents of capital punishment opponents
who saw the controversy as a blow to the legitimacy of executions.
Richard was the 405th prisoner executed since 1982 in Texas, the
nation's busiest death penalty state.

Richard was executed for 1986 rape and murder of a Houston-area nurse
and mother of seven. His last words were "Let's ride. I guess this is
it," before becoming the last condemned inmate in 2007 to be put to
death anywhere in the country - the Kentucky challenge effectively
halted executions nationwide until the Supreme Court upheld lethal
injections the following April.

© 2009 The Associated Press

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