Texas Judge sued by Executed Inmate’s Wife
[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.
— DRJ
DRJ – I would hate to be the claims handler that gets this claim. Though, at first glance, it appears that some of the qualified immunity might apply, there could be questions of intentional acts that would bring coverage into question. Additionally, though it also appears to be without merit, it is rarely so easy to get these dismissed.
JD (49efd3) — 11/8/2007 @ 8:57 amJudge Keller is unfairly getting a bad rap. I have yet to hear any of the anti-dp media question the actions of the defense team. They are the ones that screwed up.
As to this scumpal’s lawsuit, I’m sure she will troll deathrows until she finds another sociopath to marry her.
dave (c44c9b) — 11/8/2007 @ 9:01 amHow is it an improvement? If the defense team had bothered to obtain the name and telephone number of the judge handling motions, they could have faxed or hand delivered any filings to him/her directly after hours.
dave (c44c9b) — 11/8/2007 @ 9:06 amAll the appeal was about was the manner of execution, not that the prisoner was innocent of the crime.
PCD (b7be44) — 11/8/2007 @ 9:06 amI know it’s callous of me, but: she married a guy on death row? What did she expect would happen to him?
Steverino (e00589) — 11/8/2007 @ 9:08 amNo, you are not being callous. These women actively seek deathrow inmates to marry. After the execution they can claim victimhood and write books no one will ever read. I hope Keller is still around to deny her brother’s last minute writ. Knowing Texas, I’m sure she will.
dave (c44c9b) — 11/8/2007 @ 9:20 amThis is a perfect case for qualified judicial immunity. The judge’s motion to dismiss should be granted almost without thought.
aphrael (e0cdc9) — 11/8/2007 @ 10:35 amI would say absolute judicial immunity. That some functions by judges are ancillary, that is relating to the orderly functions of the courts, does not make them any less judicial. Due Process means playing by the rules — all the rules. Moreover, it was not her duty to tell the lawyers how to properly do their job.
nk (597e8b) — 11/8/2007 @ 10:44 amRight. I’ve seen no claim that the inmate’s defense attorneys were unaware of the name and phone number of the duty judge assigned to handle after-hour matters that day, nor any indication that they tried to contact that judge.
It’s not like any of these issues actually arise at the last minute to the attorneys. There is a pretty standard flurry of last-minute stay requests which are filed at the last minute before any execution. They could all easily be filed days, if not weeks and months, prior to the execution. Baze may have been decided the day before the execution, but it was hardly the first case to raise the method of execution issue. If defense counsel, for tactical reasons, declined to raise it before hand, they have only themselves to blame.
PatHMV (0b955c) — 11/8/2007 @ 11:19 amaphrael – I agree, and with a colleague as a defendant, it is even more likely.
JD (b830c0) — 11/8/2007 @ 11:23 amSo shouldn’t the suit be for “wrongful means of death” rather than “wrongful death”?
Watchman (d45d44) — 11/8/2007 @ 11:43 amThe whole thing is nonsense. If Keller had kept the court open past the deadline, she would have been bending the rules for a killer. This fetish with the supposed rights of death row inmates is fascinating. If the courts close at five, they close at five. Next time, file your appeals earlier.
The more important question is why the state feels the need to accommodate these last-minute appeals. I would insist on proper service of process, and I would certainly not hold an execution up while last-minute stay requests are being considered. I would also turn off fax machines and certainly, I would not answer phone calls from courts.
If these lawyers want to game the system, the state doesn’t have to go along with it.
SPO (62ca0c) — 11/8/2007 @ 11:51 amI have no problem with the courts accommodating last minute appeals on capital cases. However, keeping a courthouse “open” which is what the defense called and asked to be done is nonsense. All they needed was access to the judge who would hear the motions and this was something that should have been arranged earlier by the defense or when they called. But, this is not what the defense asked for. This is done all the time and I have no idea why the defense team dropped the ball. Again, Judge Keller is getting a raw deal and being vilified by the press who don’t have the balls to ask why didn’t the defense do their job. Regardless, as has been pointed out, the guy was guilty and was afforded decades of due process.
dave (c44c9b) — 11/8/2007 @ 12:21 pmLook, I know that shouting the “N” word several times during a stand-up comedy routine can be bad form, but to give the guy the DEATH PENALTY for it? That’s a bit harsh…
Justin Levine (155c17) — 11/8/2007 @ 1:13 pmWhat was worse was all the people outside the prison chanting, “Death to Kramerica!”
Steverino (e00589) — 11/8/2007 @ 1:24 pmI’m glad you all have such a high regard for human life…
Sean (6a8e10) — 11/8/2007 @ 2:23 pmWould this be the same regard the now dead murderer had for the two people he killed?
They were trying to game the system into another stay. He was convicted 20 years ago.
It had to end some time.
Scott Jacobs (91f7ff) — 11/8/2007 @ 2:33 pmIt’s not like anything I can say here will bring him back to life. Besides, he removed himself from my regard when he murdered two people.
Steverino (e00589) — 11/8/2007 @ 3:17 pmBecause I do have such a high regard for innocent human life, I believe those who murder forfeit the right to theirs.
dave (c44c9b) — 11/8/2007 @ 4:10 pmIs Texas a pure comparative negligence state? If so, I could see the judge being 0.1% liable for closing her doors on time, and Richards being 99.9% liable for … um … killing people.
Xrlq (6c2116) — 11/8/2007 @ 4:33 pmI don’t get something: what exactly is the widow’s standing to sue? What harm has she sustained?
Let’s put the worst possible construction on Judge Keller’s action. Let’s assume she knew perfectly well who wanted the court to stay open and why, and she callously refused the request in order to ensure that the appeal would not be heard (knowing, as she did, that the lawyers had foolishly neglected to obtain contact information for the judge in charge of last-minute appeals, etc.). Let’s also assume that had the appeal made it to the judge in charge a stay would have been granted. Let’s further assume that the Supreme Court will, in due course, decide that the lethal injection regime is indeed cruel and unusual and that states must use a less painful method of execution.
The result of all that assuming is that, as a result of Keller’s misbehaviour, the State of Texas administered to Richards a more painful death than it had the right to do. The State exceeded its authority, and Richards suffered more pain than he should have done. I’m still not seeing how this harmed the widow in any way. It’s not as if her husband’s death itself was in any way unjust, unconstitutional, or wrongful. He was not illegally deprived of even a minute of life to which he was entitled. On the contrary, had his execution been stayed, he would have had a windfall of some extra months or years of life to which he was not entitled. Can someone really sue for having been deprived of a windfall? Especially someone who would only have indirectly benefited from that windfall, by having the company of her husband on those occasions that she visited him in jail? Would his estate have been enriched by even a penny, had the stay been granted? So where’s her standing?
Milhouse (f10fb3) — 11/8/2007 @ 5:15 pmMilhouse,
I think the law recognizes a person’s estate is entitled to compensation if his life is cut short due to negligence or wrongful conduct, even if the deceased had a terminal illness and was not expected to live much longer. The amount of compensation may be minimal but that doesn’t negate the entitlement. Similarly, family members can be compensated for lost companion time.
Thus, I think there is an argument that she was deprived of her right to visit him during whatever additional days he might have had.
DRJ (5c60fb) — 11/8/2007 @ 5:32 pmIt’s not looking good for Sharon Keller. It seems like every day there is a new editorial against her. In Dec, Texas Monthly will even call for impeachment, if she is not removed before by the Texas Supreme Court upon recommendation of the State Commission on Judicial Conduct.
SharonKiller.com
JS (00e67c) — 11/8/2007 @ 5:36 pmCan someone please explain where anyone has the right to keep a court open past its closing time?
SPO (62ca0c) — 11/8/2007 @ 6:04 pmThere was a court open “past closing time”. The judge assigned to hear emergency motions. The scum’s lawyers just didn’t go to it.
I have confidence in the Texas legal system. The death row groupie will get her head handed to her in short order.
nk (597e8b) — 11/8/2007 @ 6:18 pmMore importantly, SPO, keeping the court open was not the correct procedure. I’ve been baffled as to why the appellate lawyers had this happen to them and wonder if this was their first death penalty case.
SPQR (6c18fd) — 11/8/2007 @ 6:19 pmSPQR,
Based on what I’ve read, I think these were experienced death penalty attorneys. It’s possible Baze through everyone for a loop – after all I don’t think anyone knew it was coming down that day. It’s also possible we haven’t heard the whole story. The complete facts may support Richards’ counsel or they may support Judge Keller.
DRJ (5c60fb) — 11/8/2007 @ 6:25 pmDRJ, these defense attorneys already had a last-minute appeal ready to go on other issues. It is a tactic of these jerks to file at the last-minute so as to maximize chances at a stay. He could have filed much earlier. He didn’t. TFB.
SPO (62ca0c) — 11/8/2007 @ 6:52 pmDRJ #22:
I know that, which is why I carefully pointed out in my question that his life was not wrongfully cut short, even by a single moment. Had there been an argument that he ought not to have been executed at that time, but only some time later, then I would not have asked the question. But in this case there is no such argument. Even if we assume the very best case for him and the very worst for Judge Keller, the only harm done to him is that he was executed at the right time, but with the wrong method. And I don’t see how that wrong caused the widow any harm.
I think people are being distracted by the fact that, had the stay been granted, he would have lived longer. But as I pointed out, those extra months or years that he would have lived, would have been a windfall. He was not even claiming to be entitled to them. So how can depriving him of them have been a wrong of any sort?
Put another way: suppose the stay had been granted; it would not have said “you can’t execute him”, but rather “you can’t execute him by lethal injection (and since you have no other lawful method I’m afraid your hands are tied)”. Had the state defied that stay, had it decided to tell the judge where to stick it and executed Richards anyway, the person responsible for that decision would not be guilty of murder. Contempt of court, yes, but not murder, because the killing itself would still have been lawful. So how was the widow harmed here?
Milhouse (f10fb3) — 11/8/2007 @ 6:52 pmMilhouse,
I agree that for Richards to live a few more weeks or months could be considered a windfall. However, it was a windfall all death row inmates received since Baze. To me, the point is that he was deprived of extra time that similarly situated death row inmates received and that he reasonably could have expected to receive, but didn’t because of the filing problem.
To me, this is a hypothetical discussion because I don’t think the lawsuit will or should survive the defense of judicial immunity. Nevertheless, it’s interesting to contemplate the tort aspects.
DRJ (5c60fb) — 11/8/2007 @ 7:25 pmHow is it that the government has immunity from pretty much everything, but I don’t have immunity for protecting my home?
State immunity is bad policy. Giving the government immunity can and will only lead to them further abusing their power and trampling on the Rights of citizens. This is a small, basic example of the contempt the government has towards citizens.
Whether Richards deserved to die is ultimately irrelevant. The issue that most people see is that Judge Keller wouldn’t stay a little bit late after closing time. Many people have and do stay late at work to help someone out or finish up that last minute project. I know of many places that have stayed open late to give someone a break. And this woman, Keller, couldn’t stay a little late when it involved a man’s life?
What do you think the “common” man thinks about this? Maybe it’s the arrogance that pervades all of government? Maybe people are sick and tire of it and Keller is the perfect person to make an example. Such callousness from someone whose SOLE job is justice is unacceptable. Agents of the government MUST be held to a higher standard.
Sean (6a8e10) — 11/8/2007 @ 8:04 pmSean, there is a difference between governmental immunity and the immunity of a judge in his judicial role.
As many others have discussed, there is some dispute over whether or not the judge was saying that the court hours would not be extended was the same thing as denying that the petition could be filed.
As for callousness, you seem to think that last minute filings by death penalty appeals are unique.
SPQR (6c18fd) — 11/8/2007 @ 8:13 pmThe problem is, the literally wasn’t her job. There was another, different judge to hear these last minute appeals. They had several hours between 5pm and the time of execution to call him, or go see him, and they made zero attempt.
That they failed so utterly is not this judges fault. If anything, the woman should be suing the lawyers of incompetence.
Frankly I don’t give two shits about what “the common man” thinks about this. The “common” man is by-and-large an idiot, and easily manipulated by things that either aren’t relivant or are outright lies.
The fact that you seem to want Keller to be made an example of when she didn’t do anything wrong, and wasn’t in any way responsible for the “late appeals” judge hearing or not hearing this appeal seems to prove out my point.
Besides, very few of us here are what I would consider “common”, and I would thank you to not insult myself in particular in such a manner again.
You might be common, but I am not.
Scott Jacobs (a1de9d) — 11/8/2007 @ 8:32 pmDeath row inmates, especially ones who file last-minute appeals that could have been filed earlier, don’t have the right to demand that a judge stay one second past “quitting time”. Honestly, if I were a judge, and I were going to see my kid’s little league game–TFB for the inmate.
This is just a manufactured controversy.
SPO (62ca0c) — 11/8/2007 @ 8:48 pmWell said, Scott Jacobs, well said indeed.
GO ILLINI ! Buckeyes are going down.
JD (49efd3) — 11/8/2007 @ 8:58 pmI’m common.
Last shot came after the buzzer… and he was down by twenty anyway.
Don’t murder people and then you won’t have to worry about your lawyer filing your last minute death sentence stay paperwork late has been a rule of thumb that works; commonly, for 99.999999% of men in America every day
SteveG (4e16fc) — 11/8/2007 @ 9:18 pmI usually just make sure my lawyers aren’t morons, and do shit the right way…
Hypotheticall, that is.
And JD, I could care less about a school that pussied out and dropped The Chief.
Go KSU!!
Scott Jacobs (a1de9d) — 11/8/2007 @ 10:04 pmThe common man thinks the death penalty process is far too long as it is and that 20 years on death row is long enough. The common man doesn’t give much of a damn about the notion of lethal injection being “cruel and unusual” punishment.
Pablo (99243e) — 11/9/2007 @ 3:44 amSPQR-
“Sean, there is a difference between governmental immunity and the immunity of a judge in his judicial role.”
So courts and judges AREN’T a part of the government? Sorry I was mistaken, I was positive that the judiciary was part of the government. Thanks for setting me straight.
Scott Jacobs-
“I would thank you to not insult myself in particular in such a manner again.”
I’m glad I mean enough to you to be able to insult you. However, in no way, shape or form (other than your mind) did I imply anyone here was “common”. That was exactly my point, you all think you are above and better than everyone else. Many of you are part of the problem.
Sean (6a8e10) — 11/9/2007 @ 5:05 amActually, it is time for this squabble to go off the clock. The inmate met his deserved fate.
I am not a lawyer, nor a legal activist. I believe in Robert Heinlein’s theory of Balancing. I especially believe in cases of murder that the killer should meet their fate in as much as possible the same way the victim was terminated. No “Cruel and Unusual” crapola. It is what the creep dishes out, therefore the creep shouldn’t object to receiving the same.
PCD (b7be44) — 11/9/2007 @ 6:31 amI agree PCD. I agree completely.
but where are you gonna find the people to administer stuff like brutal rape, and then 50 stab wounds, or whatever the guilty did to kill someone?
Scott Jacobs (91f7ff) — 11/9/2007 @ 7:18 amSean, spare me the sarcasm because you really don’t understand the terms being used and the related concepts.
Governmental immunity means that the government has not allowed itself to be sued. Its derivative of the old concept of soverign immunity. In the United States, government entities have by statute waived governmental immunity for many causes of action, but not all.
Judicial immunity means that the individual person, rather than the government as a whole, cannot be sued for his or her actions as a judicial officer. In other words, there is no cause of action for “negligent judging”. It means that a court judgment can’t be attacked collaterally by suing a judge. It can only be appealed in the normal manner.
These are completely different things based upon who is being sued.
SPQR (26be8b) — 11/9/2007 @ 8:07 am