In Texas Justice Keller's Trial, What if the US Supreme Court had ruled the other way?
The San Antonio Express-News has provided a video containing snippets from the closing arguments in the trial of Sharon Keller, Chief Justice of the Texas Court of Criminal Appeals (the highest criminal court in that state). It bears viewing, and it's only 2:24 minutes long.
Listening to it, you'll hear an attorney's deep voice talking about the death penalty and how capital punishment depends upon a public trust that there will not be a erroneous death sentence.
As you'll recall (we've posted the details of Justice Keller's trial here and the short video gives a synopsis as well), Justice Keller is being challenged for denying the attorneys for Death Row inmate Michael Richard the ability to file a motion to stay execution on the day he was scheduled to die - they were running late, and Justice Keller admits to telling her clerk to respond that "the clerk's office closes at 5." The motion to stay execution didn't get filed on time, and Mr. Richard was executed by lethal injection at 6 pm that day.
Mind you, that same morning -- the very same morning -- the US Supreme Court had granted writ in a Kentucky case which put lethal injection as a method of execution under scrutiny. Keller's supporters point out that six months later, the Supreme Court decided that this method was not "cruel and unusual" and accordingly, Richard would have been executed anyway.
Here's the question that I'm not seeing: what if the US Supreme Court has RULED THE OTHER WAY in the Kentucky case? Then, would we have a very clear example of the erroneous execution that is referenced in the closing arguments of Justice Keller's trial?
If Baze had come down differently, then I'm wondering not only what this would mean for Keller, but also what it would mean for the attorneys that were tardy in filing the motion to stay.
Talk in Texas is that these appellate attorneys were intentional in their late filing, because they were trying to get an automatic 30 day stay under the rules. Kinda like playing Chicken.
If that's true, then it's not only Keller that needs to be owning up here .... and under your scenario of Baze coming down the other way, then I'm wondering if there would have even been a wrongful death action available to the family of the executed man.
Just more to think about ....
What Sharon Keller did that day was grossly and clearly wrong and was a, if not the, proximate cause of his being killed that night. Whether Dow and the lawyers at TDS were also at fault and whether their actions might also be a proximate cause have nothing to do with whether Keller acted properly.
But none of that has much to do with the post, either. Let's assume that SCOTUS did rule the other way in Baze and conclude that Kentucky's protocol was unconstitutional. We can be pretty sure that there would have been an upheaval and that Richards would have gotten more time before his execution. He might be alive yet today. But don't claim the execution would therefore have been wrongful - or more wrongful.
LI litigation is important. I've' done it. We've got clients who are alive because of it. We can at least hope that fewer will be tortured to death because of it. But it doesn't ordinarily relate to the propriety of the killing itself - just to the propriety of the methodology.
That's a subtle distinction, but it matters a lot because how we make the argument is tied closely to how those who support state murder defend against it. It's different to preach to the choir than to win supporters, and not screwing up the nuance is essential to the latter.