Patterico's Pontifications

10/11/2007

A “We Close at 5″ Update

Filed under: Judiciary,Law — DRJ @ 9:55 am



[Guest post by DRJ]

Following up on this earlier post, 20 Texas lawyers have filed a judicial conduct complaint against Texas Judge Sharon Keller in connection with the execution of death row inmate Michael Richard.

According to the Houston Chronicle:

Twenty lawyers from across Texas filed a formal judicial conduct complaint Wednesday against Texas Court of Criminal Appeals Presiding Judge Sharon Keller, accusing her of violating the constitutional due process of a condemned man.

The complaint to the State Commission on Judicial Conduct says Keller improperly cut off appeals that preceded the execution of Michael Richard on Sept. 25, even though just hours earlier the U.S. Supreme Court had accepted two Kentucky cases on the constitutionality of chemicals used for lethal injection.”

I recognize many of these names as people who could fairly be described as politically or ideologically opposed to Judge Keller. The complaint may have a solid basis or it may not, but I think this will result in a confidential investigation.

The article also notes criticism of Republican Texas Attorney General Greg Abbott by two former Democratic AGs (although the article doesn’t mention the latter’s party affiliation):

Keller, a Republican, was not the only state elected official criticized Wednesday in connection with the Richard execution. Former Gov. Mark White and former Attorney General Jim Mattox, who both fought to enforce the state’s capital punishment laws during their terms as attorney general, said Abbott, as the state’s top lawyer, has a duty to halt executions when they appear to violate an inmate’s due process rights.

White said Abbott is an officer of the court and he “should have been obligated to ask for a stay” in the Richard execution. Mattox said the attorney general may lack actual legal authority to stop an execution, but the state prison system will follow an attorney general’s order.”

Sometimes it’s hard to tell what’s politics and what’s principle.

— DRJ

16 Responses to “A “We Close at 5″ Update”

  1. Mattox said the attorney general may lack actual legal authority to stop an execution, but the state prison system will follow an attorney general’s order

    So, the AG should ignore the fact that they have no legal authority to stop this, but use the blunt force of the name of their office to stop it anyway?

    JD (55129f)

  2. Deadlines violate due process? Personally, I believe if Keller truly knew they were filing a brief on a condemned man who was going to be executed in an hour, she would have arranged to accept a late filing. Again, I suspect defense counsel had a major role in dropping the ball. I wonder if these 20 attys are aware they may be opening another can of worms? And as Beldar pointed out — an innocent man was not executed.

    dave (782c57)

  3. And as Beldar pointed out — an innocent man was not executed.

    We shouldn’t wait until an innocent man is before asking these questions on procedure.

    Fco. (42897b)

  4. Was 5:00 an arbitrary deadline? Was this deadline changed and the defense counsel not made aware of it? Did this deadline sneak up on him?

    JD (55129f)

  5. “Sometimes it’s hard to tell what’s politics and what’s principle.”

    When in doubt (on either side of the aisle), assume politics.

    tomjedrz (562284)

  6. This whole kerfluffle seems to be confusing the idea of “filing” something with a clerk, and “filing” something with a judge.

    I know that when a search warrant is issued, that warrant is valid when the judge attaches his signature. The fact that it is later “filed” with the clerk’s office does nothing in terms of making that warrant effective. That simply puts it in the public or sealed archive of court records.

    Similarly, even though the clerk’s office might have been closed to the defendant’s lawyers, nothing prevented them from getting the necessary paperwork to the individual judge responsible for emergency stay applications. That judge could have reveiwed the application and issued the stay. That stay would have been effective the moment the judge put pen to paper, whether the clerk’s office was open for business or not.

    This whole thing reeks of political opportunism.

    WLS (bafbcb)

  7. This whole thing reeks of Judge Sharon Keller allowing her own personal views on the death penalty to interfere with the fair administration of justice.

    Bob (47409b)

  8. So what should happen to the lawyers who did not know how to page Judge Johnson who was “on call” for emergency petitions that day?

    nk (6e4f93)

  9. WLS,

    The Austin American-Statesman article that originally published this story reported someone from the defense contacted the Clerk’s office about filing and the Clerk’s office talked to the Court’s staff counsel, Judge Keller, or both. Beldar hoped to flesh this out but I’m not sure if that’s happened yet.

    DRJ (74c23b)

  10. Comment by WLS — 10/11/2007 @ 11:37 am

    Hear, hear.

    Christoph (92b8f7)

  11. Bob, that reek actually tied to any facts?

    SPQR (6c18fd)

  12. Please excuse my ignorance but is a judge required or even obligated to issue a stay on the basis of a MOTION?
    It does not carry the weight of law, even if a supreme has granted certiore.
    I can see no reason a judge should be bound by a motion that a clever wordsmith convinced a person holding one vote of nine to consider.
    Lunatics like the 20 should be held, at least civilly if not criminally liable for wasting the courts time with this drivel.

    MaaddMaaxx (c46f5e)

  13. Please excuse my ignorance but is a judge required or even obligated to issue a stay on the basis of a MOTION?

    No. But an appellant is required to exhaust all state remedies in the state court before review will be granted in the federal courts. Because they could not file their brief in TCCJ, the USSC would not grant cert. and issue a stay. If memory serves me, the execution was delayed about 2 1/2 hours as the attys tried to get the USSC to grant a cert./stay anyway.

    dave (befe88)

  14. How confidently it is asserted that we can take comfort in the “fact” that “an innocent man was not executed.” Ignore and dismiss the dozens who have been exonerated from death row after such confident convictions “beyond a reasonable doubt” and the hundreds who have had life or long sentences overturned.

    Sure, this case looks ironclad and beyond questioning. But so did so many of the others — which were later proven to be wrong, or at least questionable.

    nosh (53dd5b)

  15. Wait a minute. that last part there, are 2 former AGs saying that the AG has an obligation to violate the law, and that prison officials will aid and abet this violation? Not just the law mind you, but the Texas Constitution. Is anyone going to call them on this? The Texas Consitution is pretty clear on the limits the executive has on stays of execution and the AG is prohibited from issuing them. Heck the Governor can only issue one stay for a maximum of 30 days without getting approval.

    one of many (71ce26)

  16. How confidently it is asserted that we can take comfort in the “fact” that “an innocent man was not executed.

    Since the dp was reinstated there hasn’t been an innocent man executed. The anti-dp side likes to throw out a name or two but a closer examination of the facts demonstrates their claims are bogus. (And please don’t copy and paste names that others claim have been innocent as a retort unless you have actually read the opinions). Ironically, it’s ghoulish how much the anti-dp side wants an innocent man to have been executed.

    dave (dcf56d)


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