The Harris County District Attorney's Office said Wednesday it will place some of its capital cases on hold until the U.S. Supreme Court rules on the constitutionality of the lethal injection process next year.
It made little sense to pursue execution dates when those who already have them are receiving stays, District Attorney Chuck Rosenthal said.
"Since we don't know when the Supreme Court will rule, we thought we'd wait until they decided and then set them all," Rosenthal said.
The decision will affect only defendants who have been convicted of capital murder and sentenced to death, and whose appeals are nearing an end.
The high court agreed in September to hear the appeal of a Kentucky inmate who argued that the lethal injection method of execution violates the constitutional ban on cruel and unusual punishment. Such appeals have argued that the chemical cocktail used in most states could cause excruciating pain while masking the condemned prisoner's ability to express it.
That court's acceptance of the case has resulted in a de facto temporary ban on executions across the United States. On Tuesday, Supreme Court justices stepped in again, staying the execution of Mississippi killer Earl Berry just minutes before he was to die.
The only exception was 48-year-old Michael Wayne Richard of Houston, who went to his death just hours after the court said it would consider the Kentucky case. His lawyers contend they were unable to get courts to properly consider their last-minute appeal in light of the day's developments.
It may be impossible to remove the stain that Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, has placed on the state's judiciary. But two lawyer-driven actions might keep it from spreading.
More than 300 members of the Texas bar joined a petition last week asking Judge Keller's court to adopt modern procedures and allow e-mailed filings in death penalty cases. Of course it should.
If the Court of Criminal Appeals hesitates, state lawmakers could force the issue in their 2009 session by inserting an imperative in the Code of Criminal Procedures. It would be a disappointment if things came to that.
Separately, lawyers across the state are seeking to have Judge Keller disciplined as a result of her decision to bar the courthouse door. One of the complaints filed with the State Commission on Judicial Conduct accurately states that she is a "source of scandal to the citizens of the state." It might add that she makes the nation's leading death penalty state look overeager to carry out its grim business.
Her decision is particularly hard to stomach because other judges who were working late Sept. 25 said they would have reviewed the post-deadline appeal.
Judge Keller's judgment is morally offensive. Texans deserve to know whether it also offended legal or judicial standards that seek to keep the court system open and fair.