[Guest post by DRJ]
Judge Sharon Keller is the Presiding Judge of the Texas Court of Criminal Appeals. She may forever be known as the “We Close at 5” judge because of her role in last month’s death row appeal and execution of Texas inmate Michael Richards. Earlier posts on this topic are here and here.
As noted in the earlier posts, Michael Richards was the last person executed in the US since the US Supreme Court granted cert in Baze, a Kentucky case that concerns the use of lethal injections in executions. The Supreme Court granted cert in the morning and Richards was executed that evening, after his attorneys unsuccessfully tried to halt his execution citing Baze. It appears the Supreme Court refused to stay Richards’ execution because he did not file an appeal on that basis in the Texas courts.
Richards’ attorneys claimed they were unable to timely make the state court filing deadline because of computer problems and that the Texas court and Judge Keller refused to accept a late filing (after 5 PM). Judge Keller has consistently maintained she stated the court’s customary closing time and did not block the filing of Richards’ appeal.
Subsequently, the Austin American-Statesman reported that an ethics complaint was filed against Judge Keller “for refusing to accept an after-hours appeal from death row inmate Michael Richard.”
Yesterday, Michael Richards’ wife sued Judge Keller (and unknown other court/clerk officials) claiming their actions violated Richards’ rights:
“An executed man’s wife filed a lawsuit Wednesday alleging that a judge violated his rights by refusing to keep the state’s highest criminal court open late so his lawyers could file an appeal the day he was set to die.
Texas Court of Criminal Appeals Presiding Judge Sharon Keller refused to allow the court to stay open past 5 p.m. on Sept. 25 even though attorneys for Michael Richard had called and asked for extra time to file their appeal. “I would ask her why she just couldn’t wait a few more minutes. It wouldn’t have cost her anything to do this,” 43-year-old Marsha Richard said.
Keller is accused of violating an “open courts” provision of the Texas Constitution, causing Michael Richard’s wrongful death and violating his Fourth Amendment right to protection against unlawful searches and seizures.
The lawsuit is asking for an unspecified amount of punitive damages and seeks a court order to be issued directing Keller, the Texas Court of Criminal Appeals’ clerk and other court personnel not to stop emergency death penalty appeals from being filed.
The 11th Amendment gives states immunity from federal lawsuits. But Kallinen said Keller is not immune to a lawsuit because her actions violated established statutory or constitutional rights.”
The plaintiff has a special concern for and a rare double connection with death penalty inmates:
“I hope nothing like this happens to anyone else,” said Marsha Richard, who married her husband five years ago after meeting him while she visited her brother, who was also on death row.”
I think judges have absolute immunity from prosecution in connection with official judicial acts but their immunity may be qualified as to administrative functions. I don’t know which area this action falls into but, either way, it will be a difficult lawsuit to sustain. IMO this matter should be resolved by the judicial commission, not the courts.
However, in a related positive development, the article notes that the Texas Court of Criminal Appeals instituted Tuesday new procedures that permit “emergency e-mail appeals in death penalty cases.”
Update 11/10/2007: More on this story here.