Patterico's Pontifications

10/3/2007

“We Close at 5″

Filed under: Law — DRJ @ 6:22 pm

[Guest post by DRJ]

I’m a stickler for law and order but not this kind.

From the Dallas Examiner:

“Judge Cheryl Johnson said she was dismayed when she first learned from a newspaper report that a colleague closed the doors of Texas’ highest criminal court at 5 p.m. as attorneys for a death row inmate rushed to file an appeal.

Presiding Judge Sharon Keller closed the offices at the regular time Sept. 25, preventing attorneys for inmate Michael Richard from filing an appeal seeking to halt Richard’s execution hours after the U.S. Supreme Court said it would consider a Kentucky case questioning the constitionality of lethal injection.

Richard was executed that night after the U.S. Supreme Court refused to grant him a reprieve.

The Austin American-Statesman reported Tuesday that Keller made the decision to close without consulting any of the Texas Court of Criminal Appeals’ eight other judges or later informing them about the decision – including Johnson, who was assigned to handle any late motions in Richard’s case. “And I was angry,” she said. “If I’m in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings.”

Johnson said her first reaction was “utter dismay.” Johnson said she would have accepted the brief for consideration by the court. “Sure,” she said. “I mean, this is a death case.”

Richards’ attorneys claim they needed extra time due to computer problems that delayed the printing of the motion. In her response, Judge Keller noted that she was “relating the court’s long-standing practice to close on time:”

“I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given,” Keller said. “And I know that that is not what other people have said, but that’s the truth. They did not tell us they had computer failure.

And given the late request, and with no reason given, I just said, ‘We close at 5.‘ I didn’t really think of it as a decision as much as a statement.”

While the U.S. Supreme Court considered and denied Richards’ appeal, at least one legal analyst has stated that filing a state appeal might have resulted in the Supreme Court issuing a stay of execution.

– DRJ

91 Responses to ““We Close at 5″”

  1. Note to criminals: It’s safer if you commit crimes in states not named Texas.

    Kevin (4890ef)

  2. BFD, this was a last-minute appeal on behalf of a killer who had a bevy of appeals and a chance to challenge texas’ lethal injection procedure. Too bad.

    Law (62ca0c)

  3. Law,

    That’s an interesting attitude given your choice of blogging name.

    DRJ (ec59b5)

  4. He raped and killed a mother of seven in 1986. But he was not executed for that. He was executed because a heartless bitch of of a judge refused to leave the courthouse door open until his lawyers could file another time-wasting appeal. Oh, and what was the basis of the appeal? That the U.S. Supreme Court had granted certiorari in another case which might lead to a decision that the lethal injection might hurt the poor lamb. Ok….

    nk (7d4710)

  5. “in an other case in an other state”

    nk (7d4710)

  6. “I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given,” Keller said. “And I know that that is not what other people have said, but that’s the truth. They did not tell us they had computer failure.

    “And given the late request, and with no reason given, I just said, ‘We close at 5.‘ I didn’t really think of it as a decision as much as a statement.”

    Uh hello, did the term death penalty appeal ring a bell?

    Itsme (fee8bf)

  7. Michael Richard lived for 21 years after he committed his act of rape and murder. He lost his last appeal to the SCOTUS. How many appeals-and years- should a killer get before his sentence is finally carried out?

    tmac (0c909a)

  8. If they don’t give a reason to keep the courthouse open, they aren’t entitled to it being kept open.

    Is there some reason the appeal had to be filed at the last second?

    Newspapers keep obits on file for living people. You would think a halfway competent law office would keep appeals on file for their death-row clients.

    Daryl Herbert (4ecd4c)

  9. Sounds like the DMV

    SteveG (4e16fc)

  10. Civil servants have lives too.

    So was the appeal the method of execution and not the fact of the execution?

    daleyrocks (906622)

  11. Gotta file on time.

    I understand they teach that in law school.

    See Dubya (f7706f)

  12. NK,

    I can see you’re conflicted about this, too.

    DRJ (ec59b5)

  13. DRJ – Why are we looking to the Judge on this one? If the appeal was that crucial, that important, does it not seem reasonable that his attorney would have bothered to file it with the Court on time, or even early? If a life is in the balance, it seems only prudent to have this ready. It is not like the deadline snuck up on them.

    JD (7da151)

  14. The ‘law’ has been split and splintered into so many fragments that there might some day be the discussion of how many appeals can fit on the head of a pin. I understand and appreciate the importance of blind justice and non-prejudicial application of the law.

    But I also understand why so many non-lawyers are fed up with ‘legal technicalities and practices’ that have evolved over time. All they see is a legal system more concerned with formalities and technicalities than performing the ostensible purpose of dealing with criminals in a way to protect the general populace (referring to criminal law here, not civil). It seems too many times to be a case of lawyers and judges serving the law, rather than serving justice. I’m sure lawyers object and say these two are, or should be, the same thing. Non-lawyers only notice how often the justice part of that equation is superceded on behalf of the ‘angels dancing on the head of a pin’ legal maneuvering.

    This is one of those instances to a number of non-lawyers.

    allan (6c55e3)

  15. Sorry to be a troll, DRJ. I just can’t see the injustice in a court following its own rules after giving the defendant twenty-one years’ worth of the benefit of them.

    nk (7d4710)

  16. so when the judge was told they were gonna be late w/ the appeal she didnt ask why? as for the law firm, copy it to disc and go to a damn kinko’s and print! equal blame in this case.

    chas (ac0ce9)

  17. JD,

    As I understand it (and I may be wrong), the U.S. Supreme Court granted cert in the Kentucky case earlier on that same day indicating it would review the constitutionality of lethal injections. The attorneys for Richards had to read that opinion and modify the motion to urge that as a basis for staying the execution. The attorneys probably already had raised the lethal injection point in general, but they had to add to the motion appropriate references to the Kentucky case.

    It takes time to prepare legal pleadings and they were undoubtedly working on the Supreme Court motion, too.

    DRJ (ec59b5)

  18. The bottom line is that this guy could have filed his lethal injection challenge earlier. He did not. He cannot expect people to jump through hoops to deal with a last minute appeal. That’s just how it goes. Where is the injustice here?

    Law (62ca0c)

  19. DRJ–too bad. The world doesn’t end because a killer is to be executed. I for one, would not interrupt anything to hear a last-minute appeal were I a judge. Why? Because entertaining these appeals encourages more of them, and last-minute stays are appallingly cruel to victims’ families.

    Law (62ca0c)

  20. NK,

    You couldn’t be a troll if you tried (but don’t try).

    When I first wrote this I started to say that it wouldn’t have made any difference because the Supreme Court reviewed the case, too. However, then I ran across the quote from the Harvard Law professor who speculates that the subsequent Carlton Turner execution might have been stayed because the issue was first raised at the state court level. After that, I didn’t feel like I could cavalierly state I knew this was a non-issue.

    One would think the U.S. Supreme Court was aware of the issue (having just granted cert in the Kentucky case) and if needed would raise it sua sponte when considering the last-minute Richards’ motion. One would think … but who knows?

    DRJ (ec59b5)

  21. Law,

    I support the death penalty and I deplore the lengthy time frame that attaches to death penalty appeals. But there are times when the process matters and I think this is one of those times.

    DRJ (ec59b5)

  22. court closes at 5. that’s the law. doesn’t have to make sense. that’s the way it is. the law is 10,000 little rules you try your best to keep abreast of, because courts and legislatures don’t show you the courtesy of personally notifying you when they change something. a lawyer doing litigation practice in a specific jurisdiction really ought to know when the courthouse opens, closes, when the tro signing window is. important stuff! life is full of injustice. sometimes bad things happen to good people (like his victim), sometimes bad things happen to bad people (they executed him). why should i care? this is somebody in texas’s personal problem. i have my own problems. how much more wear can i get off these tires, and should i buy new tires, or, after over six years, a brand new rig with new tires on it? i’ve never murdered anyone, so it may be hard for me to relate. here’s a stock line i’ve used for years:

    my worry budget is fully subscribed right now. absolutely no additional worries will be entertained until the beginning of the next worry planning period.

    assistant devil's advocate (3bd05f)

  23. As Ron White says: If you kill someone in Texas, we will kill you back.

    Kevin (4890ef)

  24. ada #22:

    a lawyer doing litigation practice in a specific jurisdiction really ought to know when the courthouse opens, closes, when the tro signing window is.

    Actually, it seems they did know and that’s why they called and asked the court to stay open a little longer.

    Itsme (fee8bf)

  25. well as a texan i dont consider this a personal problem. as i stated in an earlier post they coulda figured a work-around. i do think closing time at the court is prolly a policy not a law though. and its not his guilt that is at question its whether lethal injection is cruel punishment. the anti-death crowd keeps raising the bar. just because a method of death causes pain doesnt make it cruel. thats the standard they want to establish which is completely unreasonable.

    chas (ac0ce9)

  26. there’s a california case (don’t have title or citation) where a clerk kept her counter open after hours to accept a civil case filed on the last day of the statute of limitations, and the ruling was that it was untimely filed, even though it bore a timely endorsed filed stamp. the process was correctly observed in texas. hello clerk, i’d like you to forsake your family, your dinner, your ritual beer at the pub so you can stay open to accept this appeal i should have filed earlier this afternoon. i’d also like you to come over here and do my dishes. i hate washing dishes!

    assistant devil's advocate (3bd05f)

  27. on the dark side though this really was a “deadline”

    chas (ac0ce9)

  28. DRJ, I take issue with your position this was an injustice. It wasn’t.

    Court closes at 5, judge asked if there was any reason why the filing was delayed, and wasn’t told about an alleged “computer failure”.

    So the murderer was hung. And the basis for the appeal was the supposed inhumanity of lethal injection. Well ‘scuse me if I don’t shed a tear.

    The man deserved torture and death as a matter of justice, and if there is a God he will receive both in Hell. Yet the U.S. Constitution, wisely in my estimation, prohibits cruel and unusual punishment. So no torture.

    Normal executions, all of which are exceedingly painful, like firing squad, gas chamber, lethal injection, hanging, and beheading, all work for me. They hurt… but are neither cruel nor unusual.

    Frankly, I think their should be a wide variety of potential means of execution and let the guilty party decide. Then let God sort out the true justice and/or redemption.

    Christoph (92b8f7)

  29. Sorry, not “hung”. Total brain expulsion of gas. Murderer was injected and executed. It’s all good. An equally painful and frightening hanging would have worked for me. Deterrent and punitive effect.

    Christoph (92b8f7)

  30. C,

    There’s always injustice in life. Inmates who were executed last month or last year could claim injustice that their appeals – based on the same objections to lethal injections – weren’t granted while two recent cases were. The Florida man whose execution probably spurred the Supreme Court to consider the constitutionality of lethal injections has a claim for injustice given the horrific manner of his death. We can’t stop injustice and, frankly, our legal system doesn’t promise to.

    What we promise is due process and equal protection, and I’m concerned with the inequality this case suggests. It’s my understanding that courts routinely accept last-minute appeals in death penalty cases. They even have procedures for it, e.g., there was a specific judge assigned to handle the final appeal in this case. I think the same is true for the U.S. Supreme Court.

    Because someone’s life was at stake, procedures matter more and this incident was too arbitrary for my taste. But I understand people can have different opinions and I respect that, too.

    DRJ (d48e2d)

  31. My opinion, DRJ, is a half hour with a knife and pliers wouldn’t begin to equal justice.

    I’m not going to sweat his lethal injection as “inhumane”.

    Christoph (92b8f7)

  32. Christoph, I agree that lethal injections aren’t inhumane – unless they are botched, but I don’t think that’s the case in Texas.

    DRJ (d48e2d)

  33. And for the record, DRJ, I would oppose strenuously any attempt to add what I have implied which is indeed torture to the justice system. It would be massively corrupting as it has been in every country where it is used.

    My point was, however, that even something that entirely awful would STILL not equal justice. Because he truly took innocent life, and that makes all the difference in the world.

    I’d prefer evil didn’t exist at all as would you. Sadly, it does.

    Christoph (92b8f7)

  34. You know, it’s when attorneys wring their hands about some rabid hominid being put down like a mad dog, with an injection just like at the vet’s, that it becomes clear why attorneys are viewed by ordinary citizens as something nearly as low as journalists and Congress.

    Here is an obituary of Michael Richard (the skell at issue here) which includes many facts that this thread is not taking into cognizance, like —

    1. Richard raped and killed a woman in a home invasion.

    2. He was caught and confessed. He helped cops find the gun he shot her with. His fingerprints were in the house. Multiple witnesses placed him on the scene. His confession gibed with the witnesses and physical evidence.

    3. He was no stranger to the law. The criminal bar had sprung him many times for prior home invasions, and he was on parole at the time he raped and killed Mrs. Dixon. “In March 1978, he was sent to prison on a 6-year sentence. He was paroled in May 1981. In January 1985, he was returned to prison on a 5-year sentence. He was paroled in June 1986, about two months before Dixon’s murder.”

    Another way to look at it: when he was raping and killing that woman, the defense bar stood with him, egging him on. “Do it. We’ll get you off.”

    4. Armies of attorneys swooned over him, filing literally dozens of appeals and motions.

    5. He tried every dodge in the book, or his lawyers did: he was an abused child, he was retarded, he was illiterate, the detectives tricked him, it was all his daddy’s fault for teaching him to be a thief.

    6. “Lee Coffee, the prosecutor in Richard’s first trial…said that, at the Dixon family’s request, he offered Richard a life sentence, but Richard rejected the plea offer.”

    7. The failure to file in the state did NOT prevent the attorneys from filing in the Supreme Court. They were denied at 8:00 (presumably Texas time).

    All here:
    http://groups.google.com/group/alt.obituaries/browse_thread/thread/0b1458c59c5de330/47a2e4af29acdb73

    I’m sick and tired of these slimy, scale-covered, skin-shedding, belly-sliding, sidewinding, no-shoulders lawyers taking the part of the Michael Richards and all but remurdering the Marguerite Dixons. Richard may have been cursed with poor impulse control; it shouldn’t keep him alive (any more than extreme stupidity should, one of the Supreme Court’s most retarded rulings) but it means he is probably a much better human being all-round than the reptiles who represented him over the last 21 years.

    Kevin R.C. 'Hognose' O'Brien (88bf29)

  35. Since I believe in either recycling or heaven and hell, I don’t have any particular problem with killing the guilty immediately. They have no right to live for decades while trial lawyers debate their fate after they have been found guilty of horrible crimes.

    I also don’t find it cruel and unusual punishment if their punishment and death is the result of the state inflicting upon them what they inflicted on their victims. They didn’t regard it as cruel and unusual when they inflicted that death so why should they find it cruel and unusual if applied to them?

    Curtis (36a8d4)

  36. A compelling argument, Curtis, but I still don’t want torturers on the government payroll, however tempting that may be when it comes to sickos that hurt kids, for example.

    I say kill the bastards, then let God have at ‘em.

    Christoph (92b8f7)

  37. DRJ #30:

    I agree. Especially when you consider that there was a judge assigned specifically to hear late appeals, and she would have been willing to accept it if she had known:

    …including Johnson, who was assigned to handle any late motions in Richard’s case. “And I was angry,” she said. “If I’m in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings.” …. Johnson said she would have accepted the brief for consideration by the court.

    Itsme (fee8bf)

  38. As you can tell I get wroth about these things, and Curtis’s suggestion made me grin, but in this case the cruel and unusual punishment would be delivered to the poor executioner who had to rape Richard before shooting him.

    Maybe me could make his defense attorney do it? It would give a whole new meaning to “loser pays!”

    I wish I had the self-restraint to view this all as equably as Christoph. Alas, I don’t.

    Kevin R.C. 'Hognose' O'Brien (88bf29)

  39. My self-restraint is mostly theoretical, Kevin. It helps that I never heard of the guy before tonight.

    Christoph (92b8f7)

  40. Though I like that, “kill the bastards,” counts as self-restraint.

    ;-)

    Christoph (92b8f7)

  41. Yeah, but you didn’t torture ‘em. That’s truly enlightened.

    Although if I get your meaning, your concern is the impact on the torturers and the institutions and society they represent — not the impact on the skell. [Anglo-Saxon epithet] him!

    Kevin R.C. 'Hognose' O'Brien (88bf29)

  42. DRJ, here’s a little more backgound:

    WASHINGTON (AFP) — Since the US Supreme Court agreed to review the legality of lethal injections last month, only one convict has been executed: a rapist-murderer for whom a Texas court refused to stay open 20 minutes longer to hear his appeal.

    At 10:00 am on September 25, the Supreme Court announced it would review in early 2008 an appeal by two Kentucky death row inmates challenging the legality of the lethal injection.

    The same day, Michael Richard, 48, was scheduled to receive the deadly cocktail at 6:00 pm in southern Texas for the rape and murder of a woman in 1986.

    His attorneys said they rushed to draft an appeal to the Texas Court of Criminal Appeals, the state’s highest court for criminal cases.

    At 4:50 pm, the lawyers called the court to ask it to remain open 20 more minutes after they were stalled by a computer malfunction.

    “We close at 5:00,” was the response from the court clerk, a quote widely reported by local media.

    In a last-ditch effort, Richard’s attorneys took their case to the Supreme Court, which remains open for executions.

    The legal move delayed the execution by a few hours, but since the convict did not file his appeal with a local court first, his arguments were not accepted in Washington.

    The execution went ahead that evening and Richard was declared dead at 8:23 pm. No other death row inmate has been executed since then.

    The court’s behavior angered a leading Texas daily newspaper, the Dallas Morning News, which expressed outrage in an editorial titled “We Closed at 5.”

    “Hastening the death of a man, even a bad one, because office personnel couldn’t be bothered to bend bureaucratic procedure was a breathtakingly petty act and evinced a relish for death that makes the blood of decent people run cold,” the newspaper said.

    On Tuesday, the Texas Court of Criminal Appeals granted a stay of execution to convicted murderer Heliberto Chi, 28, a sign that it might step back while the US Supreme Court weighs the constitutionality of lethal injection.

    ………….
    AFP

    Itsme (fee8bf)

  43. One of the problems here, of course, is that what he actually did is getting lost in the commotion. I had never heard of him, so I googled it to find out but all I’m coming up with are headlines such as this

    “Man Executed After Court Refuses to Remain Open for Extra 20 Minutes to Hear Appeal”

    But as I understand it, the man was executed after committing rape and murder. Sorry, can’t seem to muster up any outrage over this.

    Not My Problem (85ef67)

  44. Since opponents of the death penalty have a long history of lying, I take this story with a grain of salt.

    For the sake of argument, let’s assume it is true. Did the person identify themselves as from the Richard defense team? Did they call Judge Johnson who was the designated judge to hear appeals and ask her help? Did Judge Johnson who was aware that an execution was scheduled at 6 pm that night, say, Hey! Anyone hear from the Richard defense team? No? Did she ask her clerk to call them and inquire if they anticipated filing a late appeal?

    And Baze was not a surprise in that it has been pending for a couple of months, conference was set on 9/24, the execution scheduled for 9/25. So, everyone knew a decision would be made on whether to grant cert in Baze either 9/24 or 9/25. Richard’s defense team should already have had copies of Baze’s petition. All it would have taken is maybe an additional page noting that cert had been granted and therefore they should grant cert in Richard’s case, too.

    Come hell or high water, Texas will execute him. He lost out on a couple more months of living, while denying his victim, Mrs. Dixon, 21 years. The only person to blame for his execution is Richard, himself.

    His atty was no light weight either. He lives in SF but appears to practice primarily capital defense law in Texas. Go figure.

    dave (2e8be5)

  45. DRJ, bottom line, the guy had his chance to appeal lethal injection, but did not until the very very last minute. There’s no process issue or any other. Your piousness is misplaced.

    SPO (2f22ca)

  46. SPO,

    I believe the fact that the REASON for the appeal had not been known until that very day (the Supreme Court made the ruling that same day, and the filings don’t just appear out of thin air) is what DRJ is talking about.

    I have to say, that while I fully support killing scum like this, I am not sure I can just dismiss it as “they should have filed sooner”.

    Should they have looked into the future, and filed the stay based on a ruling by the SCOTUS that the SCOTUS hadn’t made yet?

    Scott Jacobs (425810)

  47. “The man deserved torture and death as a matter of justice, and if there is a God he will receive both in Hell.”

    - Christoph

    Unless he repented, right?

    Right? I’m serious. I’d like to see where you stand on this, Lex Talionis.

    Leviticus (b987b0)

  48. Well, sure… If he repents honestly, then sure. No hell for him.

    He still dies, though. That’s not negotiable…

    Scott Jacobs (425810)

  49. Well said. I just wanna see Christoph say it.

    Leviticus (b987b0)

  50. See Dave’s comment at #44. I think that the press has given us a very abridged and slanted story. I can’t see how experienced death penalty attorneys did not know how to page the Justice “on call” and present their petition instanter.

    nk (7d4710)

  51. NK,

    I agree we don’t know the whole story. Having “computer problems” and “We close at 5″ both sound lame to me, but we have to go with the narrative we’re given. The judge in charge of this execution should have been consulted.

    DRJ (d48e2d)

  52. Apparently, Scott, you don’t know the rules about when a claim arises. The complaints about LI are well-known, and murderers shouldn’t get any help for last-minute stuff when they could have raised the claim much earlier. This guy could have filed a lethal injection claim years ago–he did not. And he wants to file at the last-minute, sorry.

    Read Hill v. McDonough about last minute stays and when they should be granted.

    Law (62ca0c)

  53. DRJ–why should the judge have been consulted? Why should murderers get any better treatment than other litigants? What everyone seems to forget is that lethal injection claims have been well known for years. And this guy waits until the last minute. Too bad.

    Law (62ca0c)

  54. I believe the fact that the REASON for the appeal had not been known until that very day (the Supreme Court made the ruling that same day, and the filings don’t just appear out of thin air) is what DRJ is talking about.

    Again, Richard’s attys had to know the ussc was going to grant or deny cert on the Baze case on 9/24 or 9/25. But, you’re correct in that these filings don’t appear out of thin air — the capital defense bar is well organized and prepared for them and work together.

    Should they have looked into the future, and filed the stay based on a ruling by the SCOTUS that the SCOTUS hadn’t made yet?

    Yes. It was foreseeable. All they had to do is make a bare bones LI argument and note that the ussc had granted cert on the same issue and file the brief in the state court. It didn’t have to be a winner. All they had to do is exhaust the issue in the state court in order to get to the ussc.

    Where is Beldar? Why isn’t he weighing in on this?

    dave (2e8be5)

  55. The real problem is that the Supreme Court is granting stays for all the other tardy lethal injection litigants. What garbage.

    Law (62ca0c)

  56. I am a strong proponent of capital punishment. I have been a frequent defender of the Texas judicial system’s administration of the state’s capital punishment laws.

    But I was also once a federal appellate court clerk who, from time to time, was “on call” to handle emergency (read: “last minute”) filings in capital cases. And from time to time in that capacity, I had to take extraordinary steps to track down and get in touch with my own judge or one of her fellow judges after hours or on court holidays. I once read an emergency motion aloud over the phone to a Fifth Circuit judge who was standing in his fishing waders on the porch of his East Texas fishing cabin. We hadn’t expected to have to do that, but we’d made plans so that we could if the need arose, and it did; and the judge made a ruling on the merits, which I relayed to a designated deputy clerk of the Fifth Circuit in New Orleans, and thence to the litigants.

    That said: DRJ, I don’t think there’s any reason for you to be concerned that this reflects a serious systemic problem.

    There is always — always — a judge who’s reachable somehow, even if the doors to the courthouse are literally locked. The “on call” arrangements are made in advance, and only an incompetent lawyer would fail to make preparations to take advantage of irregular channels of communications in a death penalty case.

    If Judge Keller’s statements are correct — if Richard’s lawyers didn’t ask her about possible irregular channels for after-hours filing — then the blame is entirely theirs. Neither judges nor court staffs are supposed to practice law on behalf of the litigants who appear before them. “Hey, you didn’t ask this, but here’s how you ought to do your job, Mister Lawyer, now that I’ve told you we close at 5:00 o’clock p.m., you ought to ask, ‘What after-hours arrangements can I make?’ and then I’d tell you, ‘Well, here’s a phone number where you can reach Judge Johnson’s law clerk, who can reach Judge Johnson, after hours because she’s got the on-call duty [or oversight responsibility for your case].’” No, that’s not the way the system works. And Richard’s lawyers should have already secured that information days or weeks earlier anyway, just on the chance that a “computer glitch” or a flat tire or a car accident or anything else might have interrupted their plans to file during regular business hours.

    As far as how big a deal this is, overall and in the big picture: Keep in mind that there is no suggestion that because of this communications problem, an “innocent man” was wrongly executed. And there’s no suggestion that Richard’s execution was any more or less painful than any of hundreds of others than have taken place over many years in Texas and many other states.

    “We close at 5″ makes a great headline, and a great tag-line for misleading arguments intended to portray the Texas judiciary and criminal justice system as cruel or incompetent. But the people who are trying to put that spin on this event are either badly misinformed, or else they’re ignoring or even concealing the true facts because they are promoting a particular agenda.

    Beldar (429f74)

  57. It may not be the court staff’s responsibility, but I would be surprised if they wouldn’t have offered the information if they were told the request was in regards to an impending execution. What puzzles me is why the Texas Defender Service dropped the ball.

    dave (2e8be5)

  58. Beldar, don’t you think that the courts’ availability to do these last-minute appeals contributes to the last-minute nature of these appeals? Remember, these stays are incredibly abusive to victims’ families.

    I don’t think that judges or courts have any obligation whatsoever to deal with a last-minute appeal request, and, for what it’s worth, if I were a governor/warden making a decision, I would not make it easy for the criminal to get court orders to me. There’s no law that says that I have to keep my fax machine on, and there’s no law that says that a litigant has to make service easier. And I certainly would not take a telephonic order from a judge.

    Law (62ca0c)

  59. I dunno, Law. Our black-robed masters have taken a lot of powers unto themselves following Marbury v. Madison. It’s only fair that they should also take on a lot of obligations. In Republican Rome the Tribunes Of The People had the power to veto any law passed by the Senate but they also had the obligation to stay in the City the whole time of their tenure and keep the doors to their houses open to anyone who wanted to petition them twenty-four hours a day.

    nk (7d4710)

  60. Beldar has spoken and I defer to his knowledge of how the system works in this area. I know enough about this to acknowledge that procedures are worked out in advance to make it unlikely something like this will happen.

    Beldar, I assume this means you don’t view it as important that the attorneys apparently spoke with a judge (even the “wrong” judge – rather than, say, a court clerk) to request an after-hours motion in a death penalty case? I view their roles and duties in different lights.

    DRJ (d48e2d)

  61. I still don’t understand why anyone should get worked up at all about this.

    Fact: Lethal injection issues have been percolating for years. This guy should have filed his claim months ago, as his execution date was set a while ago.

    This means that they rolled the dice and lost. TFB.

    Law (62ca0c)

  62. DRJ (#60): Chief Justice Keller is quoted as saying that they attorneys asked to keep the courthouse open — not to arrange to file an emergency motion in a death penalty case outside of regular hours:

    Keller defended her actions, saying she was relating the court’s long-standing practice to close on time.

    “I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given,” Keller said. “And I know that that is not what other people have said, but that’s the truth. They did not tell us they had computer failure.

    “And given the late request, and with no reason given, I just said, ‘We close at 5.’ I didn’t really think of it as a decision as much as a statement.”

    If she’s right about what she was asked, and about the lack of explanation given by the attorneys, then it’s the attorneys’ fault.

    Asking to “keep the court open” is a bizarre way of describing what they wanted. It makes me wonder if what actually happened was that the attorneys had either a very junior lawyer or, more likely, a paralegal or secretary call the court. And instead of asking how to arrange an after-hours filing for an emergency motion in a death penalty case, he or she said, “Hey, will you please keep the court open?” Either whoever answered the phone at the court bumped that request up to Chief Justice Keller, or the attorney/paralegal/whatever persisted until he/she got that far upstream.

    But it was certainly up to whoever was on the phone for Richard to make it clear why they wanted something out of the ordinary, and to do a better job of explaining what they wanted. Chief Justice Keller obviously didn’t consider herself to be making a ruling; they didn’t manage to get it across to her that they were asking for some sort of judicial decision (even a procedural one to accept something after hours).

    Beldar (4ce3af)

  63. Assuming an inexperienced member of the defense team dropped the ball and the courthouse closed, wouldn’t one of the lead attys on the Richard defense team know how to get in touch with Johnson, who was assigned to handle late motions, or some other judge?

    dave (2e8be5)

  64. I gotta admit I have little sympathy for a murderer who lived 21 years longer than his victims by playing on the technicalities of our court system, finally meeting his fate as a result of those very same technicalities. Those who whine about how he should have been given a little more leniency are the very same who think there should be absolutely no leniency given to the victims or the protection of society.

    Socratease (64f814)

  65. Beldar,

    This was my focus:

    “I got a phone call shortly before 5 and was told that the defendant had asked us to stay open.

    I agree we don’t know everything with certainty, but it sounds like Judge Keller knew this pertained to a specific death row defendant. She might have known his execution was set for that night. (As Presiding Judge, I would think she did know that, don’t you?)

    If the attorneys didn’t even identify themselves as counsel for this defendant, that would make a world of difference to me. I expect a judge to show special concern for last-minute death penalty appeals but not for routine court business.

    Having said that, my guess (and it’s just a guess) is that defense counsel’s A team was working on the Supreme Court motion, reasoning that their best bet was with the Court that had just stayed an execution on grounds they could also assert. The B team may have been working on the state court motion and might have stumbled a bit, calling the Presiding Judge instead of the judge on call.

    DRJ (d48e2d)

  66. Unless he repented, right?

    Right? I’m serious. I’d like to see where you stand on this, Lex Talionis.

    Comment by Leviticus — 10/4/2007 @ 6:25 am

    Leviticus, I’m not a Christian for many reasons this being one of them. I can say he deserves death and punishment for his actions. I am totally unconcerned whether some rapist murderer or child-destroying sonofabitch later feels “sorry”.

    In any event, philosophically, the Bible makes clear that everyone is supposed to pay for their sins to the last farthing or whatever currency they’re using. I think the punishment unique to those who don’t accept Jesus is supposed to be remaining in hell in eternal separation from God or something like that.

    Christoph (92b8f7)

  67. Beldar, thanks, words of wisdom. Law, this is scary:

    I don’t think that judges or courts have any obligation whatsoever to deal with a last-minute appeal request [none whatsoever? sorry, you just made the deadline so screw you?], and, for what it’s worth, if I were a governor/warden making a decision, I would not make it easy for the criminal to get court orders to me [as a governor of a state or warden of a prison, you would hide from the court and make it difficult to be reached with lawful orders re: a man's life? you're a sicko. seriously]. There’s no law that says that I have to keep my fax machine on [no, not you as junior graveyard shift convenience store clerk or whatever you do for a living, but you're talking about a prison, which deals with law and has the power of God over hundreds of inmate's lives turning off its communications to the outside world, plus the governor of a state, presumably all states, doing the same], and there’s no law that says that a litigant has to make service easier. And I certainly would not take a telephonic order from a judge. [wow]

    You’re a loon.

    Christoph (92b8f7)

  68. How much did the good people of Texas have to pay to keep this criminal alive for 21 years after he raped and murdered a woman? Too bad that money couldn’t have been given to the woman’s children instead.

    PatAZ (56a0a8)

  69. Frankly, Law, if you intentionally ordered state property designed for communicating with the outside world and courts be turned off so you could avoid service of a stay of execution then you received a telephone order from a judge and refused to obey it, you would be booted from office in disgrace and I would expect you would be prosecuted for murder.

    If on the guilty, I’d vote to convict you based on those facts.

    Christoph (92b8f7)

  70. * If on the “jury”.

    Christoph (92b8f7)

  71. If on the jury, I’d vote to convict you based on those facts.

    If you were on the jury, I would have you arrested and charged with perjury to get on a jury since you are not a US citizen.

    dave (2e8be5)

  72. Obviously, dufous, as would anyone who is from Georgia who is commenting here, or Rhode Island. They aren’t Texas citizens. Its rhetorical.

    I’m not on the jury nor am I part of his jurisdiction. Unless you’re Texan, neither are you. Even then, you’d probably have to be from his county or wherever they are having the trial.

    So get off your high horse and take a deep breath.

    Christoph (92b8f7)

  73. Wasn’t Law’s statement rhetorical?

    Patterico (3d9917)

  74. I don’t know, Patterico. He didn’t give any indication it was.

    He seemed to clearly say he would avoid service from the court as much as possible — as governor or warden. Reprehensible positions, rhetorical or actual.

    Isn’t everything that is said on this blog rhetorical if you want to parse it that way?

    Christoph (92b8f7)

  75. Oh, can it, Christoph! You jumped all over Law and then whine when you get called on your own crap.

    dave (2e8be5)

  76. Up yours, dave. Wish it could be delivered in person with a swift kick. The prostate is a very vulnerable target.

    Christoph (92b8f7)

  77. The whole “lethal injection is cruel and unusual punishment” paradigm is just an end around of capital punishment. Its not. Its as pain-free and peaceful as dying in your sleep. Only a lawyer could conceive of it otherwise.
    I’m guessing the judge in question agrees with me.
    Or should the judge taking appeals spent the night sleeping on a cot in her office?

    KobeClan (cba13e)

  78. Call me stupid, but… if we just had something hit the criminal’s brain… like an 10 gauge shotgun shell at 4 inches… wouldn’t that be over so quick as to be painless?

    Christoph (92b8f7)

  79. How about a .50 caliber round right to the brain stem?

    WLS (bafbcb)

  80. I agree. Quarter pound of C-4 strapped to his forehead might be even quicker and just as painless.

    KobeClan (cba13e)

  81. I was thinking just the same thing (I actually typed 4 @ 1oz packages of C-4) before I decided not to finish because either the shot gun shell or .50 caliber round would do it.

    But great minds do think alike.

    Christoph (92b8f7)

  82. DRJ: I dunno. It’s entirely possible to read that quote from Chief Justice Keller as meaning that someone on her staff, relaying a request from someone on Richard’s legal team, told her that a generic defense lawyer — maybe not even from a capital case, much less for one with an execution scheduled for that night — wanted them to keep the courthouse open but couldn’t explain why.

    You don’t ask to “keep the courthouse open.” I’ve never heard that phrasing before; it’s the kind of thing someone who has no clue about emergency stay proceedings would say (which is what makes me think it was a paralegal or secretary or a very, very inexperienced lawyer). You’d ask about making arrangements for an emergency filing outside office hours.

    If Chief Justice Keller knew this involved a capital murder defendant with an execution scheduled for that night and she didn’t make further inquiries, that might be cause for concern. I still think that’s putting a burden on the courts and court staff that ought properly to be on the defendant’s legal team. But I can’t conceive of any judge that I’ve ever met who actually knew what was going on saying, “We close at 5″ as a way of saying “We won’t consider your emergency motion outside business hours.” If I had to bet which this was, I’d give heavy odds that Chief Justice Keller was acting without knowledge that this involved a capital murder defendant scheduled for execution that night.

    Beldar (673787)

  83. Mea culpa: On the Texas Court of Criminal Appeals, they’re just “Judges,” and Keller is indeed “Presiding Judge,” not “Chief Justice.” (I was thinking of the Texas Supreme Court’s nomenclature, that being the parallel appellate court that handles civil matters.)

    Beldar (673787)

  84. Was Michael Richard executed because Presiding Judge Sharon Keller ordered the Texas Court of Criminal Appeals’ doors closed at 5:00 p.m. before his emergency stay of execution motion could be filed?…

    From the right, DRJ at Patterico’s Pontifications titles her post We Close at 5. From the left, Jeralyn Merritt at TalkLeft titles her post TX Judge Closes Courthouse, Prevents Death Appeal. I like and respect both of these lawyer-bloggers, so I paid …

    BeldarBlog (72c8fd)

  85. DRJ #65:

    I agree that it may likely have been a paralegal or administrative assistant making the call and just not making the nature of the request clear. On the other hand, if they thought they were really only going to be a few minutes late, it might not have been unreasonable to think in terms of asking them to keep the doors open a bit longer rather than asking for after-hours filing procedures.

    Just a guess as all this is still a bit murky.

    Itsme (d5878f)

  86. Itsme (#85): If your goal is just to get a time-and-date stamp on something, then “keeping the courthouse open” for an extra five or ten minutes may be all that you need and want.

    Obviously, though, a file-stamp alone wasn’t going to do Michael Richard any good. They needed to know that a judge was standing by to look at their application right away. That’s another reason why the focus on the “doors” seems peculiar to me, and makes me think it was a phrasing from someone who didn’t understand the process very well.

    Beldar (673787)

  87. B #86:

    I agree that it sounds like it was someone who didn’t really know how or possibly what to ask, but am not sure it means they didn’t think a judge was available to review the application.

    In any case, I’m sure all parties are re-thinking their protocols by now.

    Itsme (359e3c)

  88. To clarify, the caller evidently came away thinking the review itself was being closed off. Hence the end run to the USSC.

    You’d think someone who knew to appeal to the USSC would understand how the standby judge thing works, but again, it may be a case of poor information relayed through too many people or inexperienced people.

    Itsme (359e3c)

  89. jack…

    Definitely, the most sensible thing i have seen in a long time….

    jack (111904)

  90. [...] Appeals Presiding Judge Sharon Keller, the “We close at 5″ Judge? (Former posts here and here, as well as Beldar’s excellent analysis [...]

    Patterico’s Pontifications » Texas Judge Sharon Keller Misconduct Trial (e4ab32)

  91. [...] I was leery of Judge Keller’s actions when this occurred but Beldar counseled caution. Beldar was right. [...]

    Patterico's Pontifications » Trial Judge Recommends “We Close at 5″ Judge Be Exonerated (e4ab32)


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