State panel opens case over last-minute appeal



By R.G. RATCLIFFE Copyright 2009 Houston Chronicle
Feb. 19, 2009, 6:02PM

AUSTIN — A state judicial conduct commission is launching proceedings 
that could result in the removal of the top criminal courts judge 
from office for bringing "public discredit" on the courts by refusing 
to accept an appeal from a death row inmate hours before his execution.
The Texas Commission on Judicial Conduct today filed seven charges of 
misconduct against Texas Court of Criminal Appeals Chief Justice 
Sharon Keller.
Keller declined to comment. She has 15 days to file a formal response 
with the commission.
The commission said Keller willfully and persistently failed to 
follow court procedures and state constitutional protections in her 
handling of the last-minute appeals of death row inmate Michael Wayne 
Richard.
Richard was 49 when he was executed for the 1986 Harris County sexual 
assault and shooting death of nurse Marguerite Lucille Dixon.
Richard’s lawyers had wanted a stay because the U.S. Supreme Court on 
the morning of his scheduled Sept. 25, 2007, execution had agreed to 
hear a case questioning whether lethal injection amounted to cruel 
and unusual punishment.
Richard’s lawyers called the court’s general counsel to say computer 
problems would prevent them from filing before the court clerk’s 
office closed at 5 p.m. and to ask if they could have more time. The 
counsel called Keller at home, and she said no, cutting off Richard’s 
state appeals.
The commission said Keller did not follow court procedure because 
Judge Cheryl Johnson was assigned to handle Richard’s appeals and was 
at the court waiting for them. The commission said Keller should have 
referred the counsel’s call to Johnson.
Because the appeal did not get filed, Richard was executed. But two 
other death row inmates with similar appeals received stays of 
execution during the following week from the U.S. Supreme Court on 
similar appeals.
While the commission has issued sanctions against members of the 
statewide judiciary in the past, this is the first case in that could 
result in a public trial and possible removal of a statewide judge.
More than 300 Texas lawyers filed complaints with the commission 
seeking Keller’s removal from office.
Jim Harrington of the Texas Civil Rights Project, one of the lead 
lawyers filing the complaint, said the commission’s action is 
``pretty amazing.’’
Harrington said the commission’s charges shows an in-depth 
investigation had occurred and found that Keller misled her fellow 
Court of Criminal Appeals judges about her actions in the Richard case.
The formal proceedings said the judges gathered the morning after the 
Richard execution and that Judge Cathy Cochran expressed surprise 
that Richard had not appealed based on the Supreme Court’s actions.
"Judge Keller did not disclose to the other judges her communications 
with (the court’s general counsel) the night before nor the fact that 
Mr. Richard’s lawyers had called the CCA to ask whether filings after 
5 p.m. could be accepted," the brief said.
The charges will result in a public trial of Keller by a special 
master who will then report to the commission so it can decide 
whether the case should be dropped. Keller should be sanctioned or 
removed from office, said commission Executive Director Seana Willing.

r.g.ratcliffe@chron.com

http://www.chron.com/disp/story.mpl/metropolitan/6271613.html