Texas Judge Denies Fault in Handling of Appeal



By MICHAEL BRICK
Published: August 19, 2009

SAN ANTONIO — Accused of denying a condemned man the chance for a last appeal hours before the state’s lethal drug cocktail stopped his heart, the highest-ranking criminal judge in Texas was called to the witness stand on Wednesday for the second day to defend her decision, her reputation and potentially her job.

The judge, Sharon Keller of the Texas Court of Criminal Appeals, took her seat below the bench, across from her accusers and under the gaze of lawyers, opponents of capital punishment and relatives of the executed inmate, Michael W. Richard. She pursed her lips. She cocked her head. She gave no ground.

Judge Keller said the lawyers for Mr. Richard had missed deadlines, ignored open avenues of filing their appeals and failed him all the way to the execution chamber.

“I think it’s a legitimate question to ask,” Judge Keller testified, “why his lawyers had from 9:30 in the morning until 8:30 at night and did nothing.”

The case against Judge Keller, a civil fact-finding procedure that could result in a recommendation for censure or removal, concerns a brief telephone exchange on the afternoon of the execution.

But to some, it has become a referendum on the career of Judge Keller, a former member of the Dallas County district attorney’s office who was elected to the court in 1994 on a pro-prosecution platform and was later elevated to presiding judge.

Through rulings favorable to prosecutors in capital cases, Judge Keller has drawn criticism in the form of editorials, a critical Web site, a legislative proposal and even a song, “Sharon Killer,” by the band Possumhead.

Testimony in the case has centered on the afternoon of Sept. 25, 2007. By all accounts, Judge Keller left her office around 4 p.m. That morning, the United States Supreme Court had effectively suspended lethal injection nationwide. Mr. Richard, whose own appeals to the Supreme Court had been rejected, was scheduled to die that evening for killing a 53-year-old nurse in the course of a sexual assault. An assigned duty judge was waiting at the Texas courthouse to accept any after-hours filings, standard procedure for an execution day.

Based on the action by the Supreme Court, lawyers for Mr. Richard were working on arguments to delay his execution. Around 4:45 p.m., the general counsel for the Texas court called Judge Keller at home to relate a request from Mr. Richard’s lawyers to file paperwork after 5 p.m. Judge Keller, by all accounts, indicated that the clerk’s office closed at 5 p.m.

Based on that conversation, the State Commission on Judicial Conduct accused Judge Keller of intentionally circumventing the standard procedures for execution days. In the view of the commission, Judge Keller ordered a court employee to reject any after-hours filings from Mr. Richard’s lawyers. In her own view, as described in written arguments, Judge Keller merely confirmed the usual business hours of the court clerk’s office.

A lawyer for the commission, John J. McKetta, roamed the courtroom rubbing his chin, affecting a puzzled look. Was it a part of her judicial duties, Judge Keller was asked, to follow normal execution day procedures?

“I had a responsibility to understand how executions were conducted,” Judge Keller said, “and I did.”

Why, she was asked, were the procedures never written down until a few months after the execution of Mr. Richard?

Judge Keller called the procedures “an oral tradition.”

Directly accused of denying Mr. Richard and his lawyers a grace period, Judge Keller said: “That is not true. I declined to keep the clerk’s office open past closing time.”

After lunch break, Judge Keller took questions from her lawyer, Charles L. Babcock. She gave a brief account of her background as a cashier at her father’s hamburger shop in Dallas, scholarship student, philosophy major, lawyer and judge.

How, she was asked, has the accusation of unfairness affected her?

“It has been hard on me,” Judge Keller said.