Texas Chief Justice Keller - Finally, Clear Charges On Violation of Execution Day Protocols

We've been following the melodrama surrounding Sharon Keller, Chief Justice of Texas' highest criminal court since allegations that her acts caused the execution of Michael Richard to go forward back in 2007. For background, here are some of our posts giving the details on this horrifiic story:

Sept 2009 - Texas' Chief Justice Keller's Trial - Shocking Report from FactFinder

August 2009 - In Texas Justice Keller's Trial, What if the US Supreme Court had ruled the other way?

April 2009 - Texas Chief Justice Sharon Keller's Lesson to Us All About Due Process

Well, yesterday was the deadline for the Examiner (read that, "prosecutor") to file objections to the fact findings that a state district judge (Judge David Berchelmann of San Antonio) issued recently after a week long trial in August.  That judge simply didn't find that she did anything that bad - that the public ridicule of Justice Keller was more than enough punishment. 

Lots of folk (including us) were SHOCKED at this response.  Now, thankfully, a clear and solid voice has come forth in the public record, as the Examiner files its case before the Texas Commission on Judicial Conduct (which has the power to remove her from the bench). The entire filing is important reading, and we're hopeful that you'll take the time to go through the 38 pages that explains everything so well. 

And to be fair, Justice Keller has filed her formal response to this filing, and you might want to read that, too.  It's the right thing to do, something that you'll recall wasn't allowed to Michael Richard on that fateful day he died at the hands of the State of Texas. 

Texas' Chief Justice Keller Trial - Shocking Report From FactFinder

As you'll recall, the Chief Justice for the highest criminal court in the State of Texas was on trial in August 2009 for her alleged bad acts on the day that Michael Richard was executed. 

The same day that the United States Supreme Court issued a ruling that Richard's attorneys argued should have stayed that execution, but whose motion to stay never made it to the court for consideration because of some logistical problems that afternoon.  Logistics that revolved around Justice Keller, who was at home meeting with repairmen that fateful day. 

You'll remember -- when the attorneys got to the high court, the doors were locked.   It was 20 minutes after 5.  When they called the lackey inside, who then called Chief Justice Keller at home for guidance, she said the clerk's office always closes at 5 pm.  Nevermind that Justices were on stand-by for this motion.  Everyone knew it was coming, including Justice Cheryl Johnson, the justice on call that day for emergency motions.

Michael Richard was executed by lethal injection within hours of Chief Justice Keller's dismissive phone response. 

So, a trial was had and a state district judge, David Berchelmann, was assigned to act as fact-finder in the trial of Justice Keller,  His findings then go to the state's Judicial Commission for final disposition (removal, etc.). 

The fact-finding judge issued his report last week.  And he's apparently so sympathetic with the "public humiliation" that the Chief Justice has already experienced that he thinks she's suffered enough.  However, if you actually READ his opinion, it's very curious.

Substantively, he's arguing that the Chief Justice didn't violate any rule, and then he explains (on page seven) that the "tradition" or "rule" of having a justice on duty to answer queries like the ones made by Richard's attorneys may have been ignored.  Like maybe ignoring having Justice Johnson take the call, having Justice Johnson run with the ball, instead of shutting things down with "the clerk's office closes at five"?

Experienced jurists and experienced criminal defense appellate attorneys know that there are occasions when filings are placed before the court after the standard close of business.  Especially on days when the United States Supreme Court makes rulings that impact the possibility of stay in death penalty cases. 

This fact finding report is shocking.  One can only wonder what the State of Texas will do next. 


For other responses to Judge Berchelmann's report:

Gamso for the Defense

Grits for Breakfast

Dallas Morning News

Houston Chronicle (great headline here, "Keller is lucky judge wasn't just like her.")



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?

Texas Chief Justice Sharon Keller's Lesson to Us All About Due Process

Due process under the law has been constitutionally protected since our nation began, although the phrase gets tossed around quite a bit these days without much concern as to its real importance.

Due process is protected by the 5th (federal) and 14th (state) Amendments to the U.S. Constitution, although it is a principle with origins in the Magna Carta. In that historic document, England's King John promised that "...[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land."

King John signed the Magna Carta over 790 years ago. You'd think that due process of law would be pretty much settled into a traditional, solid role in our society by now. Particularly so, when it comes to those officials in positions of authority. But if you think that, you'd be wrong.

Due Process of Law is endangered in this country.

Never has our sacred right to due process under the law been more endangered than it is today. And no - I'm not about to delve into the current Florida case concerning a young woman awaiting trial for the murder of her child.

Instead, I'm looking over at our sister state, Texas, and what's been going on over there since the afternoon of September 26, 2007.

Texas Chief Justice Faces Criminal Charges, Civil Trial, and Impeachment Arising From Death Penalty Case

Criminal charges were recently filed against Sharon Keller, the Chief Justice of the Texas Court of Criminal Appeals, by Texans for Public Justice for her actions on the day that Michael Richard was executed by lethal injection. (In Texas, the Court of Criminal Appeals is the highest court for all criminal matters; the state divides its civil and criminal caseloads, and has a separate high court, the Texas Supreme Court, which hears all civil matters as the state court of last resort.)

Chief Justice Sharon Keller has already been investigated and charged by the state's Commission of Judicial Conduct, where she will be facing trial in August. In the state legislature, impeachment proceedings are also being advanced against her.

What Chief Justice Keller Allegedly Did On the Day that Michael Richard Died

On the day that Michael Richard was scheduled to die, everyone knew - the state prosecutors, the Governor's office, the inmate's attorneys, and the Court of Criminal Appeals - that a motion to stay his execution would be forthcoming if the United States Supreme Court made its announcement that it would be considering whether or not execution by lethal injection was cruel and unusual punishment, and therefore an unconstitutional and illegal means of execution.

When that announcement came down from Washington, D.C., on the morning Mr. Richard was scheduled to die by lethal injection, lots of people when into action. His attorneys began working on finalizing a motion to stay the execution, and Justice Cheryl Johnson of the Court of Criminal Appeals, the justice assigned to the task, began working on the Court's response to that motion. Due process of law had begun regarding Michael Richard's legal rights.

Sharon Keller Went Home to Meet a Repairman.

Sometime that afternoon, it is uncontested that Chief Justice Keller left work and went home - purportedly to deal with a repairman. It is also uncontested that the inmate's attorneys had some computer snafu and were unable to deliver the final motion before closing time at the clerk's office. As time sped by, and it became clear that the defense attorneys would not be able to file their motion to stay before the 5:00 closing time for the Clerk of the Court of Criminal Appeals, they called the Court and asked for an additional twenty minutes.

It's All About 20 Minutes.

When the staff attorney of the high court called Justice Keller, relaying the request, she didn't allow the clerk's office to remain open for twenty minutes - giving the inmate's counsel enough time to file the motion. No one knows why.

And because Justice Keller said that the clerk's office would close at five o'clock, Michael Richard was unable to have his motion heard.

He died that night. Michael Richard died at 6:00 p.m. CST on September 26, 2007, executed by lethal injection during a time period where the U.S. Supreme Court was considering the legal issue of whether or not that was a form of cruel and unusual punishment.

Of course, there are questions. Where was Justice Johnson in all this? Why wasn't she involved in this decision? What about filing the motion at the Chief Justice's home?

As part of the Commission's investigation into Justice Keller's actions, another interesting bit of information has been revealed that is also very troubling: apparently, the Justices had already met and voted that they would deny Richard a stay if the U.S. Supreme Court did take up the issue - and they met and voted long before they ever read anything presented to them by Richard's attorneys. With courts like this, you wonder why they even bother having defense motions filed at all.

Due process is never more important than when the death penalty is involved.

Here's the key: due process is never more important than when a death penalty case is involved. Due process of the law must be insured, at every juncture, before our government should be allowed to take the life of any citizen.

Doesn't matter what that citizen may have done. The focus is upon the power of the State, not the culpability of the individual. Strict adherence to the due process of law is supposed to keep those in authority from abusing their power.

And when a Chief Justice finds it acceptable to leave her office early to check on a repairman, when a man is scheduled to die that night - all while there is reason to believe that a due process issue may be involved -- and when the Court itself decides to meet and vote on an issue before the defense can even be heard -- then we all need to stop and consider the seriousness of the current American apathy toward due process of law in this country today.

Protecting Due Process of Law is Our Responsibility

Because due process of the law will remain only so long as it is vigilantly and vigorously respected and protected - by all of us. Trusting those in authority to man the helm here is not enough, as Justice Keller has so wisely taught us all.


Austin American Statesman

New York Times

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