State District Court Judge David Berchelmann was selected by the Texas Commission of Judicial Conduct last year to hear misconduct charges leveled against Texas Court of Criminal Appeals Court Judge Sharon Keller in response to her conduct surrounding the execution of Michael Wayne Richard on September 25, 2007.

            The Keller case has received national and international media attention, fueled more by misinformation than fact. On January 21, 2010, Judge Berchelmann issued a 16-page report which effectively exonerated Judge Keller of any judicial misconduct in the Richard case. The Berchelman report concluded—a conclusion I drew and have written about in various venues—that Richard’s defense team, the Texas Defender Service, “bears the bulk of fault for what occurred on September 25, 2007.”

            In a April 20, 2009 blog posted here titled “Judge Keller Not the Only Village Idiot,” I presented the following indictment of Richard’s defense team:

I will make my case against Richard’s TDS attorneys with the “facts” set forth in the February 19 “notice of formal proceedings” against Judge Keller issued by the Commission and from “facts” existing in the public record..

            Fact #1 – While there was no written “execution day protocol” in place in the CCA on the day of Richard’s execution, there was an unwritten protocol clearly understood by all the CCA judges and death penalty attorneys practicing before the court. The unwritten protocol called for one judge to be placed in charge of any scheduled execution—and that all communications either in-house or from attorneys would be directed to this duty judge.

            Fact #2 – All the CCA judges, including Judge Keller, knew that Richard was scheduled for execution on September 25, 2007.

            Fact #3 – Judge Cheryl Johnson was the judge in charge of handling all matters relating to Richard’s execution.

            Fact #4 – On the morning of September 25 the U.S. Supreme Court granted a writ of certiorari to two condemned inmates who had challenged the three-drug protocol used by the State of Kentucky to carry out lethal injection executions as cruel and unusual punishment.

            Fact #5 – All the CCA judges and the court’s general counsel, Edward Marty, were aware of the U.S. Supreme Court decision and its potential impact on the pending Richard execution.

            Fact #6 – The Texas Defender Service was also aware of the U.S. Supreme Court decision. They began to prepare a petition to stay Richard’s execution. The TDS notified the Harris County District Attorney’s Office that it was in the process of preparing that stay petition. Writing in a “guest column” for the Houston Chronicle several days after Richard’s execution, Joan M. Cheever, an attorney and author of “Back From the Dead,” wrote that the stay petition was 108 pages in length.

            Fact #7 – Earlier in 2007 before Richard’s execution two federal courts—a federal district court in the Northern District of Texas and the Sixth Circuit Court of Appeals—had issued rulings rejecting “cruel and unusual punishment” claims against the three-drug protocol utilized by Texas and Tennessee to carry out their “lethal injection” executions 

            Fact #8 – The TDS experienced computer problems—described as a computer “crash”—that prevented the group from printing out the necessary 11 copies of the 108-page petition that had to be filed with the CCA. The public record is not clear as to exact time the TDS’ computers crashed.

            Fact #9 – The TDS first called the clerk’s office of the CCA at 4:45 p.m. to make a formal request that the office stay open a few minutes past its normal closing time to accept a “late filing” in the Richard case. Deputy clerk Abel Acosta informed the TDS that his office closed at 5:00 p.m. but he would pass the TDS request that the office stay open a few minutes beyond its normal closing time to the CCA’s general counsel, Edward Marty.

Fact #10 – Marty informed Judge Keller about the TDS request that the clerk’s office stay open past 5:00 p.m. Judge Keller said “no” to that request. Marty immediately instructed Acosta not to accept any filing after 5:00 p.m.

Fact #11 – Neither Acosta nor Marty notified Judge Cheryl Johnson about either

the TDS request for a late filing or Judge Keller’s decision not to allow such as both were required to do under the CCA’s well-understood execution day protocol.

            Fact #12 – The TDS did not inquire with either Acosta or Marty about which CCA judge had been placed in charge of the Richard execution. The TDS was aware—or certainly should not been aware—of the CCA’s execution day protocol and, therefore, should have placed their request for additional time directly with Judge Johnson.

            Fact #13 – The TDS had ample time but elected not to either fax or hand deliver a one page motion for an extension of time of one hour (or however much time was needed) to file their 108-page stay petition. Such a motion would have been immediately delivered by Acosta to Judge Johnson and, in all likelihood, would have been granted.

            Fact #14 – Acosta called the TDS at 4:48 p.m. and informed them that the clerk’s office would close at precisely 5:00 p.m. A TDS paralegal told Acosta that she would take the stay petition to the court and drop it off with the security guard. Acosta said that would serve no purpose because the clerk’s office would close at 5:00 p.m. The TDS then called Acosta back and asked if they could e-mail or fax something to the court. Acosta informed them that the decision had already been made not to accept any filings after 5:00 p.m. Shortly before 6:00 p.m. TDS once again called Acosta to say they were headed to the court to hand deliver the pleadings. Acosta informed the TDS that no one would be there to accept the late filing.

            Fact #15 – Neither Acosta nor the TDS informed Judge Johnson about the last-minute communications concerning the Richard execution. She was kept completely out of the loop on this issue by Acosta and Marty as well as the TDS. More to the point, the TDS did not make any attempt to go around Acosta and contact Judge Johnson through her office telephone number.

            Taken together, these facts offer compelling evidence that the TDS should face the same kind of professional disciplinary scrutiny currently being leveled against Judge Keller. First, and foremost, the TDS had to file its request for a stay with the CCA before it could ask either a federal district court or the U.S. Supreme Court for a stay. Time, therefore, was critical. There was no reason to believe the CCA would grant a stay. Two federal courts had just months earlier rejected cruel and unusual punishment claims with respect to the three-drug protocol used by Texas and Tennessee

Against that legal backdrop, there was absolutely no legal reason to prepare a 108-page petition for stay of execution with the CCA. Even if the petition had been timely filed, there was no way either the judges or their law clerks could have researched or fact-checked all the information contained in such a mammoth legal pleading. At most a ten-page or less petition for stay based solely upon the U.S. Supreme Court ruling earlier that day would have sufficed to allow the TDS to move in and out of the CCA in order to quickly get their stay petition filed in federal court.

Furthermore, as soon as the so-called computer “crash” occurred, the TDS should have prepared a one-page motion for extension of time to file the stay petition. They had ample time to file such a motion and it would have been directly routed by Acosta to Judge Johnson for an immediate ruling. And after Acosta told the TDS that the clerk’s office would not remain open after 5:00 p.m., any communication with him after that was an unnecessary exercise in futility. Once Acosta informed the TDS that a decision had been made that his office would not to stay open beyond the 5:00 p.m. closing time, it was absolutely incumbent upon the TDS to at least make an attempt to contact Judge Johnson directly. This was not done.

The TDS, therefore, botched Richard’s last minute appeal by, first, attempting to file an unnecessary 108-page stay petition when a much shorter petition would have sufficed; second, by not filing as soon as the computer crash occurred a one-page motion for extension of time to file the stay petition; and, third, by not directly contacting Judge Johnson which would have been permissible under the CCA’s execution day protocol.

Finally, both Acosta and Marty bear as much responsibility as Keller in Richard’s late appeal not being accepted. They both knew Judge Johnson was the judge in charge of the execution. Acosta should have contacted her, and not Marty, about the TDS request to file the late stay petition –and once Acosta presented the TDS request to Marty, the general counsel should have sought a decision on that request from Judge Johnson, not Judge Keller.

            The Berchelmann report vindicates the assertions I put forth in that April 2009 blog. It also supports similar conclusions I set out in our book, Capital Punishment: An Indictment by a Death Row Survivor (Arcade Publishing, N.Y. 2009), co-authored by my wife, Jodie, and I. It also supports similar conclusions I have expressed about Richard’s attorneys in at least two other blogs posted last year.

            I was also pleased to read Houston Chronicle columnist Rick Casey admit in a January 21, 2010 column that he and other members in the media “were taken in by exaggerations by the defense team, which were not countered by Keller or her staff. We made, as Berchelmann pointed out, small errors that grew.”

            I am one member of the media who was not suckered by the erroneous public statements made by Richard’s defense team. I am honored that, as a prison journalist, I was the recipient of the prestigious George Polk, Robert F. Kennedy, Sidney Hillman, and ABA Silver Gavel journalism awards. I didn’t earn those awards being a sucker.

            But I do understand how Casey and his colleagues “were taken in” by Richard’s defense team. They were not served well by the old axiom, “you can fool the fans but not the players.” I understand the death penalty, probably as much or more than any “death penalty expert” in the State of Texas. Two of the articles that garnered me the Polk and Hillman awards were about the death penalty.

            And I know lawyers and the law – I know what lawyers should and should not do, and I understand what the law says and doesn’t say. From the outset, the Richard defense team knew it screwed up, but they also knew they could deflect criticism from their own failings by playing them off against Judge Keller’s unpopular standing in the media and anti-death penalty movement.

            I could have tagged along with the Richard defense team’s “exaggerations.” I had “no dog” in the Keller/anti-death penalty movement fight. My wife and I were in the middle of trying to sell a book that is an indictment of the death penalty. It didn’t serve our financial interests for me to ally myself with Keller against her lynch mob in the anti-death penalty movement.

            But, my friends, I don’t like lynch mobs—never have, never will. I spent 40 years in the Louisiana prison system fighting lynch mobs. I was not about to let a Texas lynch mob, even one from the anti-death penalty movement, lynch the truth in the Judge Keller saga—and that is probably the only time in life I will ever find common ground with the judge.

Sources:

http://www.chron.com/disp/story.mpl/headline/metro/6826395.html

http://www.chron.com/disp/story.mpl/metropolitan/casey/6827327.html

http://www.capitalpunishmentbook.com/?p=245

http://www.capitalpunishmentbook.com/?p=171

http://www.capitalpunishmentbook.com/?p=140