Patterico's Pontifications


Trial Judge Recommends “We Close at 5” Judge Be Exonerated

Filed under: Judiciary — DRJ @ 10:29 pm

[Guest post by DRJ]

I’ve blogged before regarding judicial proceedings against Texas Court of Criminal Appeals Presiding Judge Sharon Keller, also known as the “We Close at 5” Judge. Judge Keller was charged with misconduct by the State Commission on Judicial Conduct after a report that Keller had closed the doors of Texas’ highest criminal court at 5 p.m. as attorneys for Michael Richard, a Texas death row inmate, rushed to file an appeal. Richard was executed later that night.

A trial on the misconduct claim against Judge Keller was held in August 2009, at which time she testified she wouldn’t do anything different if she could do it over again and blamed the incident on the conduct of the defense counsel. Now the trial judge at that hearing has issued a recommendation to the State Commission on Judicial Conduct exonerating Keller:

“Sharon Keller, the state’s highest criminal judge, should not to be removed from office or even reprimanded for her role in a 2007 controversy that resulted in Texas executing an inmate without his final appeal being heard in court, a special judge said.

Though Keller made several questionable decisions on the night inmate Michael Richard was executed, the blame for Richard’s missed appeal lies squarely with his defense lawyers at the Texas Defender Service, or TDS, according to findings by District Judge David Berchelmann Jr.”

Judge Berchelmann found the defense counsel failed to diligently pursue and file Richard’s appeal:

“Berchelmann, however, concluded that TDS lawyers were responsible for “the majority of problems involving the Richard execution” by failing to diligently prepare his final appeal or pursue every option to file it with the Court of Criminal Appeals after 5 p.m.

“TDS has only itself to blame,” he wrote. “(Keller) did not violate any written or unwritten rules or laws.”

The 13-member Texas Judicial Commission will consider Judge Berchelmann’s findings at a public hearing. The Commission can “dismiss the charges, reprimand Keller or recommend she be removed from office.”

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


32 Responses to “Trial Judge Recommends “We Close at 5” Judge Be Exonerated”

  1. If I were in Keller’s shoes I would have given the jackass lazy defense counsel extra room and all kinds of concessions when their ‘computer broke’. Which is exactly why DP cases have so much sloppiness. They expect things to work differently for them because of the stakes. Deadlines and rules are not as important, all because they expect Keller to act like I would.

    I don’t even like Keller. I think her reputation was a big part of why people assumed she was in the wrong in Austin. The law is the law is the law. The defense had an obligation to their client, and expected everyone to let them shirk because of sympathies. If you’re unable to do your damn job on time, please don’t take DP cases.

    Dustin (b54cdc)

  2. Did Keller understand that Richards was going to be executed that night? Did the defense do their job, in other words?

    Beldar asked that, and I wasn’t sure what the answer was. I know, to many, Keller saying she wouldn’t do it differently in hindsight makes that moot, but not to me. In hindsight, we also know that executions were not banned altogether, after all, which is what the last minute appeal was all about.

    Dustin (b54cdc)

  3. was there any good reason that they had waited for the very last minute?

    redc1c4 (fb8750)

  4. red, if I recall correctly, it was a cert grant or some other SCOTUS action in a case outside Texas on the cruelty of a certain method of execution (one I find much gentler than constitutionally required, but whatever).

    It was the same day as an execution, which means it was kinda awesome that an appeal was prepared at all. Very last minute? I think they claimed some kind of printing problem. According to the Austin paper “

    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.

    I don’t think the Austin Paper is particularly good, though. Anyway, the defense says it finished typing the appeal at 4:30, and wasn’t able to get it printed until 5:50 because their printer is old and email didn’t work and all kinds of stuff. They also say that’s not relevant because once Keller was asked to stay late, she should have said ‘yes’.

    I know several have asked, and I never saw the answer: did the defense inform Keller that this man would be executed that night if she didn’t hear them late? Just curious, really. As it turns out, Richards had every appeal heard fairly, and this one was moot, since executions were not barred in Texas.

    Dustin (b54cdc)

  5. I can see a really awesome laser printer commercial coming out of this.

    Dustin (b54cdc)

  6. As far as I know, there isn’t a transcript available for the misconduct hearing so all we have are snippets reported in the newspapers. However, given that the trial judge found Judge Keller’s position persuasive, here’s what the Austin American-Statesman reported Keller testified:

    In her testimony Wednesday, Keller blamed her legal woes on Richard’s lawyers with the Texas Defender Service, or TDS, and said her decision to close the court clerk’s office at 5 p.m. should not have stopped them from filing their briefs directly with one of the court’s nine judges or with the general counsel.

    The judge also blamed negative newspaper articles and editorials on Richard’s lawyers.

    “Those articles were the result of misinformation from TDS attorneys to the press regarding the time they had been ready to file, the length of the pleadings and whether they were volunteers,” she said.

    The article (TDS lawyer David) Dow had written for The Washington Post said somebody had called me and begged me three times (to keep the court open) — and that was not true.”

    “Is there anything you want to say in response to your critics? Babcock asked.

    “I believe they were misled by information that was deliberately provided to them by lawyers for TDS. I think we wouldn’t be here today if that hadn’t happened,” Keller said.

    McKetta asked Keller about the 4:45 p.m. execution-day phone call from Ed Marty, during which Keller declined to allow an after-hours filing at the court.

    “Would you not agree that each time you said ‘No’ on Sept. 25, 2007, it had consequences?” he asked.

    Keller: “It did not. The clerk’s office closed regardless of what I said.”

    McKetta: “Would you not agree that each time you said ‘No’ on Sept. 25, 2007, your choice affected Michael Wayne Richard?”

    Keller: “It was not my choice. By state law and court custom, the clerk’s office closed at 5 o’clock.”

    McKetta concluded with this question: “Knowing what you knew then, and based on the specific things Ed Marty said to you on Sept. 25, 2007, is it correct that there is nothing different you would do if the same questions were put to you today?”

    “Yes, that is correct,” Keller said.

    DRJ (84a0c3)

  7. redc1c4,

    The basis for Richard’s appeal on this day was a U.S. Supreme Court decision issued earlier in the day. The U.S. Supreme Court had granted cert in a Kentucky case, Baze v. Rees, that challenged the constitutionality of the three-drug “lethal injection cocktail” used in Kentucky and Texas. Thus, the question presented in Baze also applied to Richard’s case and it was considered a basis to delay his execution. In fact, based on the Baze case, a Texas court delayed the execution of Texas death row inmate Heliberto Chi the following week and (as I recall) other cases were delayed after that.

    DRJ (84a0c3)

  8. DRJ, you’re saying (that they are saying that) the defense should have filed their briefs with the correct judge? That’s lame. It’s still not clear to me that Keller knew enough at the time to refer them to the right person to file with (And I suppose that’s not her responsibility).

    It’s hard to like Keller, either way. Not her fault, I can buy, but still, let’s just let these lawyers send their ridiculous last minute appeals to whoever is supposed to get them, and if you don’t like that activity on Friday nights, don’t be on a court that gets that kind of crap. If she knew what was going on at the time, she could have picked up a phone. Did she know? Probably not, or they would have made that part of their propaganda efforts.

    Dustin (b54cdc)

  9. Dustin,

    Here’s what I think happened: The trial judge found that defense counsel are experienced death penalty defenders who knew the procedure for death penalty appeals. The process allows for after-hours filings directly with appellate judges or the court’s general counsel — not after-hours filings with the Clerk’s office. Thus, the defenders erred by insisting on filing with the Clerk’s office instead of following the normal after-hours death penalty procedures.

    DRJ (84a0c3)

  10. I’m not a criminal law attorney but I have one other theory about this: I think defense counsel focused on the Supreme Court filing and may have left the Texas criminal court filing to an assistant who may not have been as familiar with death penalty procedures. Ultimately, though, the Supreme Court refused to hear the appeal because the defense had not filed a state appeal and thus did not exhaust their remedies.

    DRJ (84a0c3)

  11. I appreciate you laboring to make that clearer to me.

    The onus is on the defense to not make that kind of error, and I don’t think there’s any doubt these were experienced DP defenders. So why did they screw this up?

    Was there an advantage to filing to the clerk’s office instead of the general counsel or the judges? Would it somehow taken longer to resolve, giving their client a weekend to live? I apologize if this stuff is already well understood.

    Either way, I have this picture in my head of Keller calling the attorney to tell them to send this to the right place, even if it was their responsibility and fault (and they already knew they were supposed to do this). That’s probably why I wouldn’t make a good judge. These rules need to be followed for everyone to get their turn, their fair shake, etc, and it’s kinda lazy on my part to want to bend the rules for cases that seem special.

    Dustin (b54cdc)

  12. Also, my idea of what Keller could do is probably extremely unrealistic given volume. The procedure wasn’t even followed, so that’s where the problem was.

    Dustin (b54cdc)

  13. and i’m guessing that there was no question as to the defendant’s guilt, just that he didn’t, unsurprisingly, want to get the death penalty.

    he should have thought about that a few years earlier.

    redc1c4 (fb8750)

  14. You may want to take another look at Beldar’s post, Dustin. He discusses your concerns far better and more thoroughly than I could.

    DRJ (84a0c3)

  15. Beldar talks about a copier commercial? that’s too funny….. %-)

    redc1c4 (fb8750)

  16. I can see a really awesome laser printer commercial coming out of this.

    Comment by Dustin

    yer a sick and twisted individual Dustin……

    don’t ever change. %-)

    redc1c4 (fb8750)

  17. Or a FedEx ad: “When your appeal absolutely, positively has to be there on time”.

    Icy Texan (01c224)

  18. I’m a little confused. In California, missing a deadline to file an appeal is considered a jurisdictional defect, meaning the cout has absolutely no authority to even hear the appeal. And the Code of Civil Procedure (don’t know what the penal code says) states that if a document is presented for filing or service after the close of business it counts as having been served or filed the next business day. So what is so different about the law in Texas that this even warranted a reprimand?

    Sean P (334463)

  19. How is the death penalty procedure unconstitutional?

    Michael Ejercito (b0a575)

  20. My heart just pumps piss that this snot nosed little killer didn’t get his appeal thru and had the legal death sentence imposed on him that he illegally imposed on an INNOCENT person.

    peedoffamerican (ab0cf4)

  21. Thanks for the link back to my blog, DRJ.

    I’m reading the Special Master’s Findings of Fact closely now. I recommend them to anyone who’s interested in this subject, since there has been an awful lot of genuinely awful reporting on this matter, and most of the punditry I’ve seen has been based on badly wrong assumptions or misstatements of fact.

    Beldar (da5bc1)

  22. Having now read his findings, I think the Special Master, District Judge David Berchelmann, Jr., got things about right.

    One thing he didn’t mention, and that almost all the pundits criticizing Chief Judge Keller have ignored, is that judges aren’t supposed to engage in the practice of law — and especially not on behalf of the litigants who are appearing before them.

    Michaels Richard’s defense team — acting through a paralegal supervised by a brand-new first-year lawyer, neither of whom knew better but both of whom should have been corrected by senior lawyers who did — were asking the wrong question. They didn’t actually want or need to “keep the Clerk’s office open,” or to “keep the Court of Criminal Appeals open.” They needed to arrange for an after-hours emergency filing with one of the Judges, and as the Special Master’s findings point out, if they’d phoned the chambers of the Court’s members (all of whose phone numbers were in the phone book), they’d have found their way to Judge Johnson, who was expecting and indeed waiting for their filing. To know that, all they had to do was read Texas Rule of Appellate Procedure 9.2(a)(2), which specifically permits delivery of court documents directly to “a justice or judge of that court who is willing to accept delivery.” But Richard’s team didn’t even try to do that. Instead they rushed straight to the SCOTUS (where they had no chance of success precisely because they’d skipped the Texas Court of Criminal Appeals). And then, when it was too late, they blamed Judge Keller in the press — and, frankly, misrepresented the facts and the law to do so.

    Chief Judge Keller was arguably in a position to correct their error. The Special Master arguably and somewhat implicitly faults her for not doing that when he writes that “Judge Keller’s silence on several occasions conflicts with the ideal that courts should foster open communication among court staff and litigants.” But it’s wrong for judges to (metaphorically) lean over the bench and say to one team of lawyers or the other, “You’re doing this wrong. You’re asking the wrong question. What you really want and need to be asking instead is this.”

    Beldar (da5bc1)

  23. Sean P wrote (#18 — 1/21/2010 @ 5:25 am):

    In California, missing a deadline to file an appeal is considered a jurisdictional defect, meaning the cout has absolutely no authority to even hear the appeal. And the Code of Civil Procedure (don’t know what the penal code says) states that if a document is presented for filing or service after the close of business it counts as having been served or filed the next business day. So what is so different about the law in Texas that this even warranted a reprimand?

    This only makes sense if you undertand that the entire basis for the emergency stay application was the U.S. Supreme Court’s grant of certiorari in Baze. And that ruling didn’t come out until the morning of the night that Michael Richard was already scheduled for execution. His lawyers couldn’t have known in advance that cert would be granted in Baze or, if so, when. When it happened, then, they therefore had less than one business day to prepare, file, and get a ruling from the Texas Court of Criminal Appeals in order to exhaust their state-court remedies before asking the U.S. Supreme Court to grant a stay. Had they done so — had they not screwed up by asking to “keep the Clerk’s office open” instead of asking to arrange for an after-hours filing — the odds are indeed quite good, approaching certainty (based on rulings from similar cases) that either the Texas Court of Criminal Appeals or, failing that, the SCOTUS would indeed have granted the stay.

    Of course, after Baze approved the use of lethal injections, the stay would have been dissolved and, in all likelihood, Richard would have been executed anyway.

    Beldar (da5bc1)

  24. (And this wasn’t an appeal as of right. We’re talking about post-conviction, post-appellate, successive writ of habeas corpus (based on potential changes of the law) filings. There was no jurisdictional issue of the sort that you’re discussing (although like California, Texas does have deadlines for initiating direct appeals that can be jurisdiction-destroying when missed).

    Beldar (da5bc1)

  25. Very enlightening comments, Beldar. Many thanks.

    SPQR (26be8b)

  26. Thanks, Beldar. Your blogging on this was first rate before you came to this thread, too. Nice story-telling in particular.

    You make a powerful point, and you’re right that many (myself included) expected Keller to do something about this problem… to act by talking to Johnson or to the lawyers. That’s not what judges are for, but it’s very hard to see myself not going ahead and fixing that situation. I guess I shouldn’t be a judge, then.

    Keller didn’t talk to Johnson about this even when prompted (after Richards was dead and the issue was moot), which just strikes me as bizarre. Not misconduct or incompetence… just antisocial. But that’s unfair of me, and the information about Dow’s ethics are very annoying and make it hard to trust any of the irrelevant crap about computers and conversations. I’d hate to be represented by someone who antagonizes the bench like that. This computer crashing internet problems stuff make his office look ridiculous, especially when they are expecting Keller to set them straight on procedures they aren’t following.

    At the end of the day, I just don’t like elected judges and that’s making it hard for me to be fair when her act of omission happens to go badly for the defense. She runs as a person who sees the “prosecution’s side” and all that. I don’t like a system that sets itself up for that. Judges shouldn’t have to campaign at all.

    Anyway, this was a very educational thread.

    Dustin (b54cdc)

  27. Dustin, thanks for the kind words. Being a lawyer, of course I have to quibble with you now.

    I’m actually one of David Dow’s fans, although we’re better described as acquaintances than as actual friends. (We clerked for the same Fifth Circuit judge, although not at the same time, and we have tons of common acquaintances and friends.) By all accounts, including those of people who are more familiar with his work as a teacher and lawyer and whose judgment I trust, he’s a fine lawyer. He’s performed a genuine public service with the TDS — and I say that as someone who’s a strong proponent of the death penalty in general, but who also believes that capital defendants need and deserve the full benefits of procedural due process and their substantive rights, including representation by competent counsel. David’s an aggressive advocate for his clients, and as part of that he’s a diligent opponent of the capital punishment system as it operates in Texas. But I believe in the adversary system, and so I also believe that his participation in that system actually is a very good thing.

    Someone can make a mistake without necessarily being evil or unethical or incompetent in general.

    Despite the self-contradictions and lack of corroboration by independent witnesses, I personally don’t disbelieve the TDS’ position that they had some sort of computer/internet problem. I don’t really think that’s an important issue. The stay application could have been given several different titles, and it could have been written in crayon on toilet paper. An average lawyer could have framed the issues in ten sentences or less. I’m sure the TDS wanted to present something far more polished even under these tight time circumstances, and I’m sure they reasonable expected that they’d be able to squeak through — up until sometime close to the last minute, when suddenly they must have had a sick feeling that they weren’t going to be able to meet their earlier expectations. Most lawyers who have adversary practices, criminal or civil, have been in their shoes. If they had gotten through to Judge Johnson, she wouldn’t have penalized their client for the fact that it was after 5:00 p.m. They didn’t need the “computer problems” excuse, whether it was inflated or not.

    The failure to anticipate that their paralegal would frame the question in the wrong way is an understandable mistake; the failure to realize in time that that’s what had happen is more unfortunate, but still understandable.

    I have a much bigger problem, actually, with the media circus that David and the TDS have encouraged. I think they’ve been insufficiently candid — so much so that among the knowledgeable observers with whom their credibility is most important, including judges both on the Texas Court of Criminal Appeals and elsewhere, they may have permanently damaged their own credibility. And I think they let what are ultimately political instincts — opposition to the death penalty as a policy matter, as part of which leading a witch-hunt against Judge Keller may have seemed like a splendid idea — adversely affect their ability to continue representing their clients in court. I actually hope I’m wrong about that.

    Beldar (da5bc1)

  28. I recommend them to anyone who’s interested in this subject, since there has been an awful lot of genuinely awful reporting on this matter, and most of the punditry I’ve seen has been based on badly wrong assumptions or misstatements of fact.

    You mean those careful, unbiased journalists who are vital to democracy got it wrong? Impossible!

    Brother Bradley J. Fikes, C.O.R. (9eb641)

  29. Thank you for commenting on this, Beldar.

    DRJ (84a0c3)

  30. You’ve caught me. I have no reason to blame David Dow specifically for the first year lawyer or paralegal or whoever for making the mistakes that occurred.

    The computer excuse was simply pathetic. It isn’t relevant except to establish a nice narrative for the public. We differ… I think they are lying about that. But it’s pointless to even worry about it.

    I still am annoyed with the David Dow (and I guess I should be more fair and just say TDS) that I see in the report you linked, and the one I see in the papers fostering and building this confusing circus. Just annoyed, that’s all. Being an aggressive and perhaps annoying character was a calculation Dow made, and probably made in consideration of the rest of his death penalty clients. I’m sure he would be happy to trade his reputation with random internet commenters for a chance at making 11th hour appeals more successful generally… or some quixotic effort to eliminate the death penalty in Texas. Maybe Keller is really that ‘bad’ that getting her off the bench would change the death penalty in Texas. He gets to play hardball with this kind of case, and I’m glad someone out there is actually doing what I consider a terrible chore.

    I can’t imagine what that sick feeling you describe must have felt like for whoever realized they were running out of time and later were not going to be able to file (a mistaken view, apparently). I’m glad I didn’t have to deal with that firsthand.

    Dustin (b54cdc)

  31. I am a criminal defense attorney, and a (former) member of a death penalty defense team, and I knew right from the start that it was the lawyers’ screwup. I practiced in front of a not at all criminal friendly court and have been denied permission to withhdraw and instead ordered to argue a frivolous appeal. Judges don’t go out to deny anybody a hearing. Hearings is what their job is.

    nk (df76d4)

  32. Press and most public still misunderstand issues in Keller judicial complaint…

    Regarding the Texas State Commission on Judicial Conduct’s handling of the complaint made against Presiding Judge Sharon Keller in connection with the Michael Richard execution in 2007, Peggy Fikac of the Houston Chronicle’s Austin bureau reported to…

    BeldarBlog (0436bf)

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