We’re less than two weeks out from the judicial conduct hearing on Court of Criminal Appeals Chief Justice Sharon Keller, and it’s clear that her defense strategy will be to attack her accusers.
Keller, facing potentially career-ending charges that she improperly closed her court to a death row appeal, will argue that defense lawyers fabricated — or at least exaggerated — computer problems the day Texas executed Michael Richard.
Keller’s new accusation is an attack on the credibility of Richard’s lawyers, three of whom are expected to be called as witnesses when her special trial convenes Aug. 17 in San Antonio.
The attack, a recent addition to Keller’s defense strategy, also seeks to undermine the narrative that has emerged against the judge: that she refused a reasonable request to keep the Texas Court of Criminal Appeals open past 5 p.m., penalizing Richard for events outside his control — computerbreakdowns experienced by his lawyers.
“Judge Keller’s position will be that there was no computer problem,” said her lawyer, Chip Babcock. “There will be testimony that (Richard’s lawyers) — maybe — had e-mail problems for a few minutes in the afternoon.”
However, in recent pretrial depositions, provided to the American-Statesman by agreement of all parties, Richard’s lawyers testified under oath that the computer difficulties were real and delayed work on Richard’s briefs.
Even Keller’s forensic computer expert, Eric Shirk, testified in a July 17 deposition that he could not rule out computer trouble — only that he found no evidence of a “series of computer crashes,” which is how Richard lawyer David Dow described the problem shortly after Richard was executed in 2007.
That recent Texas Monthly article gives a pretty good accounting of the timeline, and it’s clear that the defense could have been better organized, though they really were operating on a very tight deadline. Having said that, this isn’t about them, it’s about her, despite her efforts to pass the buck. I’ll say it again, I can only wonder what Justice Keller would think of the arguments being made on behalf of Defendant Keller if the latter were to appear before her.
According to depositions, working from the Texas Defender Service’s office in Houston, lawyer Alma Lagarda began drafting Richard’s briefs about noon. Dow, the organization’s litigation director, joined her about 2:45 p.m., and Lagarda e-mailed Dow her first draft about 3:30.
The first sign of trouble came around 4 p.m., when Dow tried to send his changes back to Lagarda and discovered that nobody in the office could send or receive e-mail, according to sworn testimony from Dow and Lagarda.
All computers, however, continued to function, allowing Lagarda and Dow to finish the brief about 4:30 p.m. by working from printouts. Still, several efforts to e-mail the document to the Texas Defender Service’s office in Austin — where the Court of Criminal Appeals is located — did not succeed until 4:51 p.m., the lawyers testified. Then began the laborious process of making 11 copies, as required by court rules, on the organization’s outdated printer. That didn’t end until 5:50 p.m., according to testimony.
“The best indication is that it slowed them down by half an hour or an hour,” Manne said.
Manne admitted that they “might have been a few minutes late even if there were no e-mail problems at all. But the question is: What did (Keller) do and was it appropriate? It’s a classic legal defense to create a credibility contest over something that doesn’t matter anyway.”
But Shirk, the computer expert hired by Keller, said in his deposition that subpoenaed Internet records and a forensic review of Texas Defender Service data files turned up no verifiable computer crashes, which is how Dow described the problems in an opinion piece he wrote for The Washington Post in 2007.
When asked if his definition of crashes — “catastrophic hardware or software failures” — might conflict with a layman’s definition, Shirk demurred. “The more time I spend in this business, the more I have less of an ability to understand what the layperson thinks,” he said.
Okay, well, I’ve spent nearly 20 years in the IT business, mostly in customer service, and I can tell you that to an end user, a “computer crash” can mean any number of things, mostly something along the lines of “the program I was using failed in some fashion, and I had to start all over”. Maybe they had a hang, maybe they hit a wrong key and lost their data, maybe Outlook or whatever email program they were using crashed on them. Who can tell? I speak from experience when I say you have to quiz non-expert users very carefully to really understand what actually happened to them, because they don’t speak the same technobabble we geeks do. Maybe whatever happened to them would be apparent in a check of their ISPs log files or the data files they submitted – one assumes it was far too late for the computer in question to yield any useful evidence by the time Shirk got involved – and maybe not. What Shirk is saying here tells me nothing, and proves nothing. Thanks to South Texas Chisme for the Statesman link.
Far more egregious than any of this, however, is Keller’s argument that she should be judged by a standard of proof more favorable to the defense than would normally be used. Tex Parte explains.
In the motion she filed with the commission, Keller requests that 37th District Judge David Berchelmann Jr., the special master for Keller’s hearing, base his findings of fact regarding the charges against her on the evidentiary standard of clear and convincing evidence. Under judicial conduct commission rules, the master would base his findings on the lower standard of preponderance of the evidence. “Application of the preponderance of the evidence standard would not be sufficient to ensure that any deprivation of Respondent’s [Keller’s] property interest in her position as Presiding Judge of the Court of Criminal Appeals would not be arbitrary,” Keller alleges in the motion.
UPDATE: Grits has more.