October 16, 2007
Chron: Keller must go

I agree.

The events of Sept. 25 have put a stain on Texas justice that can only be cleansed by the removal of Chief Justice Sharon Keller from the Texas Court of Criminal Appeals.

On that day, Judge Keller let her personal bias in favor of the death penalty trample the right of now-executed prisoner Michael Richard to access the courts and have due process. In doing so, she abdicated her role as the state's chief criminal justice to become its chief executioner.

As laid out in a complaint to Texas' State Commission on Judicial Conduct signed by 20 distinguished Texas attorneys, including Houston's Dick DeGuerin and University of Houston Law Center professor Michael Olivas, Judge Keller's actions were legally inexcusable. The plot line could be straight from a Law and Order episode, with the twist that in this case it was the justice who committed the injustice.

After the U.S. Supreme Court agreed to consider a challenge to the constitutionality of lethal injection, attorneys for Richard, a convicted murderer, had less than a day to craft an appeal for a stay of execution pending resolution of the issue before the high court. A ruling by the Texas court was necessary before the U.S. Supreme Court could consider his appeal.

Because of computer problems, Richard's lawyers requested that the Court of Criminal Appeals remain open past 5 p.m. to take the last-minute appeal. The judge assigned to the case, Cheryl Johnson, and two other judges had stayed late, anticipating that an appeal might be forthcoming before the execution scheduled later that evening. Without informing them of her decision, Judge Keller refused to allow the appeal to be filed after 5 p.m. Richard was executed hours later.

Note that, as Grits points out in the comments, the Supreme Court ruling that created this opportunity to appeal came down at 3 PM that afternoon. There's no justification at all for Keller turning this into a game of beat the clock.

The irresponsibility of Keller's behavior was highlighted by subsequent legal developments. Two days after the Richard execution, the Supreme Court stayed the execution of another Texas prisoner, Carlton Turner. Although his appeal had been denied by the Texas court, the fact that it was heard allowed the high court to act.

Then the Court of Criminal Appeals stayed the scheduled execution of convicted murderer Heliberto Chi, effectively signaling a halt to death by injection in the state until the high court rules on its constitutionality.

Just as Turner and Chi were spared pending the resolution of the issue, so Michael Richard should be alive today. Since she will not face the voters until 2012, the miscarriage of justice perpetrated by Chief Justice Keller can only be remedied by a recommendation by the Judicial Conduct Commission to the Texas Supreme Court that she be removed from office.

What else is there to say? Keller must go. I can only hope that the Judicial Conduct Commission sees it that way as well. If you want to join in on the Harris County Criminal Lawyers Association complaint, you can do so here.

Posted by Charles Kuffner on October 16, 2007 to Crime and Punishment

I agree with you. And this is nitpicking. But I hate to see any grounds for challenging the egregiousness of this situation take hold. Grits assertion that the SCOTUS Order didn't issue until 3:00 p.m. the afternoon the motion to stay and brief was due is slightly off.

SCOTUS issued cert for the case on September 25, 2007. There were four issues in the original petition. Because the original grant did not limit the scope of review, ostensibly cert was granted for all four issues. On October 3, 2007, SCOTUS issued a misc. order amending the original grant and limiting review to the first three of the four issues. The copy of the order available on-line is not time stamped, but SCOTUSblog had a comment about the order with a link to the document up at 12:59 p.m. EST on the 3rd. This means that the order actually issued earlier that morning, which is consistent with SCOTUS orders. (Other comments at TalkLeft have pointed to the original, September 25th grant of cert as proof that counsel had time to timely brief and file their motion. Those comments all ignore the subsequent, October 3rd amendment.)

I don't have any first-hand knowledge about this, but defense counsel probably didn't get notice that the scope of review had been limited until around 3:00 p.m. The amended order more than likely directly affected their arguments and the text of anything else they had already briefed. Even if they had gotten notice earlier in the day, that's not much time to amend, copy, and file a brief on an issue this important.

Posted by: helverings nag on October 17, 2007 11:35 AM