The State Commission on Judicial Misconduct is a 13-member panel. The ethics commission convened last Friday, June 18, 2010, to determine if sanctions should be imposed on Texas Court of Criminal Appeals Chief Judge Sharon Keller for her role in the last-minute appeal of a condemned inmate named Michael Wayne Richard in September 2007.

            The facts surrounding the Richard execution are these: The condemned inmate was scheduled for execution at the Texas death chamber on September 25, 2007. Executions are normally carried out at the Huntsville prison facility between 6:00 and 6:30 p.m. Richard was represented by death penalty expert and attorney David Dow and the Texas Defender Service. Dow and the TDS were aware of the state’s execution time frame.

            On the morning of September 25 the United States Supreme Court granted a writ of certiorari in two Kentucky death penalty cases and agreed to decide the issue of whether the three-drug protocol used in lethal injections was cruel and unusual punishment. Richard was the only condemned inmate in America scheduled to die that day. All death penalty experts across the country quickly understood that the Supreme Court’s decision to hear the constitutional challenge to lethal injections created a mandatory moratorium on executions in the United States.

            All Dow and the TDS had to do was prepare a brief motion to stay Richard’s execution based upon the Supreme Court decision in the Kentucky case. Even if the Texas courts denied the motion Dow and the TDS would have had ample time to seek a stay at the federal level. But the attorney did not do that. Instead Dow and the TDS staff embarked upon humongous effort of preparing a mammoth108-page motion/brief to file with the Texas Court of Criminal Appeals, as reported by Joan M. Cheever, author of Back From the Dead, in a Houston Chronicle op-ed piece after the Richard execution.

            While Dow and the TDS were wasting precious time on the behemoth brief, the judges on the TCCA were aware of Richard’s scheduled execution and the U.S. Supreme Court action earlier that day in the Kentucky cases. The judges anticipated a brief and immediate motion to stay the execution from Dow and the TDS. The Harris County District Attorney’s Office, which had prosecuted and secured the death penalty against Richard, was thinking the same thing, particularly since it had been advised by the TDS that they would be seeking a stay of Richard’s execution.

            The TCCA did not have a written “execution day protocol” in place on September 25, 2007. The court’s practice of handling “last minute” death penalty appeals was that one judge would be assigned to handle all matters pertaining to any scheduled execution under that judge’s watch. This practice provided that all communications, either from the court’s staff or attorneys, would be directed to what is generally referred to as the “duty judge.” Judge Cheryl Johnson was the duty judge in the Richard case.

            Late in the afternoon of September 25 the TDS computers “crashed.” This computer glitch prevented the anti-death penalty group from printing out the requisite 11 copies of the 108-page petition it wanted to file with the TCCA. One of the TDS attorneys instructed a “paralegal” to telephone the office of the clerk for the TCCA and make a formal request that the office stay open a few minutes beyond its strict 5:00 p.m. closing time. That was an extremely questionable decision because paralegals should not make any formal requests to the court about a criminal case.

            The TDS’s paralegal call was received by the clerk’s office at 4.45 p.m. Deputy Clerk Abel Acosta informed the paralegal that the clerk’s office would close at its normal 5:00 p.m. closing time, but that he would forward their request that the court stay open beyond 5:00 p.m. to the TCCA’s general counsel, Edward Marty.

            When informed of the TDS request by Acosta, Marty informed Judge Keller about the request. Judge Keller instructed Marty that the clerk’s office should close at its normal 5:00 p.m. closing time. Marty then instructed Acosta not to accept any TDS filings after 5:00 p.m. Acosta informed the TDS at 4:48 p.m. of the Keller decision.

            Neither Marty nor Acosta informed Judge Johnson about the TDS’s request for a late-filing. Judge Johnson was the duty judge and could have granted the request, ordering Acosta to accept any late filing by the TDS in the Richard case.

            The TDS did not inquire of Acosta as to who the duty judge over the Richard execution was. Dow or one of the other TDA attorneys, not a paralegal, should have immediately communicated the computer problem to the clerk’s office and requested a telephone conference with Judge Johnson.

            Furthermore, Dow and the TDS had ample time once the computers crashed to prepare a one-page handwritten motion, which could have been either faxed or hand-delivered to the clerk’s office, requesting an extension of one hour in which to file their stay motion. They did not do this.

            What the TDS paralegal did was to inform Acosta during his 4:48 p.m. call that she would take the stay petition to the court and drop it off with a security guard. The clerk informed the paralegal that would serve no purpose because the clerk’s office would be closed at 5:00 p.m.

            After the 4:48 p.m. Acosta call, someone with TDS called Acosta back and asked if the group could email or fax something to the court. Acosta once again informed TDS that no filings would be accepted after 5:00 p.m. Then at 6:00 p.m. the TDS once again called Acosta to inform him that they were headed to the court to hand-deliver the pleadings. Acosta informed the TDS that no one would be at the clerk’s office to accept the documents.

            Acosta did not inform Judge Johnson of any of these communications between him and the TDS as the unwritten protocol would have suggested. She was, after all, the judge in charge of the Richard case and actually had superseding authority over Judge Keller in that case.

            The TDS did not make any attempt to contact Judge Johnson about their stay request. Basic common sense, not to mention legal expertise, would have suggested that Richard’s attorneys contact the TCCA’s duty judge about the stay petition rather than having a paralegal waste time with the clerk’s office.

            Richard was executed.

            Immediately after the execution, David Dow, the TDS, and the entire anti-death penalty movement in the State of Texas launched a media blitz to crucify Judge Keller for her decision not to keep the clerk’s office open beyond the 5:00 p.m. closing time. These forces were quickly joined by the nation’s liberal media establishment, like The New York Times, in blaming Keller for the execution. They all clamored that the TCCA’s chief judge had violated the standards of judicial conduct and should face charges by the State Commission on Judicial Conduct.

            The campaign against Judge Keller from the very beginning was bullshit. It was a smoke screen to cover for the irresponsible and incompetent conduct of David Dow and the TDS in the handling of Richard’s final appeal. They made all the wrong decisions on September 25—preparing a 108-page legal pleading when a several page motion to stay would have sufficed; failing to prepare a backup handwritten motion for an extension of time to file the stay motion which could have been filed before the TCCA’s 5:00 p.m. closing time; instructing a low-level paralegal to communicate with the clerk’s office about the request for a late filing when there were only minutes to spare; and failing to contact Judge Johnson directly rather than continuing the fruitless telephone conversations with clerk Acosta.

            But the anti-Keller media frenzy proved effective. The Judicial Commission filed formal misconduct charges against the judge for her role in the Richard case. State District Court Judge David Berchelmann was appointed to hear the charges. On January 21, 2010, Judge Berchelman issued a 16-page report that effectively exonerated Judge Keller of any misconduct and placed the blame squarely on the TDS for the many errors made on September 25, 2007.

            At the June 18 hearing Keller’s attorney, Chip Babcock, informed the Commission that the charges against the chief judge were, in fact, the result of a media frenzy and that the Commission had been used by these anti-death penalty forces “I think it’s organized (propaganda), and I think for the commission not to recognize it is naïve.”

            I agree wholeheartedly. Regardless of what the Commission does in the case, nothing will excuse the conduct of Michael Wayne Richard’s defense team which effectively sent him to a premature death.

            And Special Prosecutor Mike McKetta actually made the best argument at the June 18 hearing for Judge Keller’s exoneration of misconduct charges. McKetta told the Commission that Judge Keller had a duty on September 25 to forward calls regarding Richard’s execution to Judge Johnson.

            “She knew that the caller wanted to file something … that the caller requested to file something after 5 p.m.,” McKetta said. “Judge Keller intercepted and disposed of a communication while the assigned judge was waiting—expecting something to be filed.”

            McKetta is correct. There was a “duty” to inform Judge Johnson about the TDS communications. But that duty began with Abel Acosta and ended with Edward Marty. Both knew Johnson was the duty judge. Acosta should have forwarded the TDS paralegal’s 4:45 p.m. telephone request for a late filing to Judge Johnson, not to Chief Counsel Marty.

            Furthermore, Marty should have conveyed the TDS communications to Judge Johnson, not Judge Keller. The chief judge did not “intercept” the TDS communications as charged by McKetta. She was simply told by Marty that the TDS wanted the clerk’s office to stay open beyond the 5:00 p.m. closing time so they could file an untimely pleading. She denied that request. Was that harsh response? Yes. Was it judicial misconduct? Absolutely not!

            But all the actions by the court’s personnel on September 25 are irrelevant. Had the TDS conducted itself in a responsible and professional manner, there would have been no need to request permission to file a pleading after the 5:00 p.m. closing time. The fault lies squarely with the TDS.