Texas Lawyer writer Miriam Rozen has a long article with lots of new details about what happened on Sept 25 when Sharon Keller said, “We close at 5” and refused to allow the CCA to remain open to accept an appeal from Michael Richard. The article does not provide any new information that disputes earlier accounts from Keller herself that she said “We close at 5”. The article also confirms that Gov Perry could have halted the execution but refused to act, even after being told that the CCA had refused to stay open.

We have already turned in a complaint against Sharon Keller to the State Commission on Judicial Conduct that was signed by around 1600 people. Since we turned it in, another 200 people have signed on to the complaint. We will deliver the new names to the Commission sometime in December.

You can still sign the complaint.

Out of Time: The Last-Day Legal Battle Over the Execution of Michael Wayne Richard

Miriam Rozen
Texas Lawyer
11-19-2007

Around 8:20 on the evening of Sept. 25, shortly before the state of Texas executed Michael Wayne Richard, the convicted murderer uttered his last words: “I guess this is it.”

But Richard’s death, rather than bringing closure, created a controversy that continues with no end in sight — a controversy involving the presiding judge of the Texas Court of Criminal Appeals, the Texas Office of the Attorney General, the Office of the Governor and lawyers at the nonprofit Texas Defender Service.

Questions have arisen because Richard — convicted in 1987 of capital murder — was the last man in the nation executed following the U.S. Supreme Court’s Sept. 25 decision to grant writs of certiorari in Baze v. Rees.

In Baze, two condemned men from Kentucky allege that the trio of chemicals used in lethal injections in Kentucky constitute cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution. Texas and dozens of other states use the same chemicals in lethal injections.

Richard’s execution date was set for Sept. 25, with his death warrant in effect from 6 p.m. — just 10 hours after the high court granted cert in Baze — to midnight. The events of that day — the computer problems that delayed Richard’s defense lawyers’ filings, the CCA’s 5 p.m. closure of its clerk’s office and the Supreme Court’s denial of Richard’s final stay motion — have prompted plenty of finger-pointing. But the story of what happened that day, told from the perspective of key players, shows that Texas executed a man who, given one more day, likely could have persuaded a court to postpone his death.

No one postponed the violent death of Marguerite Lucille Dixon, a 53-year-old registered nurse residing in Hockley, a town about 40 miles northwest of Houston. At Richard’s 1987 trial, prosecutors alleged that Richard stopped by Dixon’s house, asked her son about buying a van in the driveway, waited for Dixon’s children to leave, then entered her home. At the trial, prosecutors presented evidence that Richard shot her and on his way out stole two television sets and the van.

Richard was convicted of capital murder and then successfully challenged his death sentence in a successive state habeas application with the Texas Court of Criminal Appeals based on the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia, which bars the execution of the mentally retarded as cruel and unusual punishment. After an Atkins hearing, visiting District Judge Mary Bacon recommended that the CCA deny Richard relief, which the CCA did on March 21.

On June 12, when 182nd District Judge Jeannine Barr scheduled a Sept. 25 execution date for Richard, Texas Defender Service litigation director and University of Houston Law Center professor David Dow, who has represented death-row inmates for more than two decades, says his team began to focus on the case.

Richard’s case attracted TDS lawyers, Dow says, because they believed he had a bona fide Atkins claim that had not been fully fleshed out in federal court. Richard’s previous habeas counsel had run into a court-imposed time crunch not of his own making and had been diagnosed with Parkinson’s disease. Dow says TDS — which has offices in Austin, Houston and San Francisco — was receiving letters from Richard, asking for help — letters that also showed evidence of Richard’s mental retardation. So the nonprofit offered to take over Richard’s case from his previous habeas counsel.

TDS lawyers represent inmates or assist court-appointed counsel for the majority of Texas’ 393 death-row inmates, most of whom are indigent. Given TDS’ scare resources and the pace of executions in Texas — 26 in 2007 — TDS’ five full-time lawyers and five part-time lawyers, including Dow, have to set priorities, paying close attention to the cases of death-row inmates whose execution dates are set.

Initially, Dow says, two TDS senior staff lawyers, Greg Wiercioch and Maurie Levin, began the work on Richard’s case. They decided by mid-summer that they wanted to make another attempt to get the courts to recognize that Richard was mentally retarded and should not be executed, Dow says.

On Sept. 24, one day before the scheduled execution, Wiercioch, having exhausted the remedies of all other state and federal courts, filed on Richard’s behalf an original petition for writ of habeas corpus and a petition for writ of mandamus in the U.S. Supreme Court, basing his claims on Atkins and Richard’s alleged mental retardation.

The Plan

At 8 a.m. CST on Tuesday, Sept. 25, the U.S. Supreme Court announced it had granted cert in Baze.

Dow didn’t check his e-mail that morning as he headed to the UH Law Center to teach a contracts class. After class he went to his office at the law school, where at 10:30 a.m. he saw an e-mail from Wiercioch that said the Supreme Court had granted cert in Baze.

“I got an e-mail from Greg wondering whether we should do something on the lethal injection front” in Richard’s case, Dow says.

By 11 a.m., Dow and seven other TDS lawyers were on the phone mapping out their plan for the day. Dow and TDS staff attorney Alma Lagarda would work on Baze-related relief. Wiercioch and Levin would continue pursuing an Atkins-related claim.

Until Sept. 25, Dow says, TDS lawyers focused all efforts on relief for Richard through an Atkins claim, rather than raising questions about the constitutionality of lethal injection. The logic behind such a strategy was simple, Dow says: A successful Atkins claim would bring permanent relief from a death sentence. “If you prevail on an Atkins claim, your client moved off death row,” Dow says. Alternatively, “if you prevail on a lethal injection claim, your client could still be executed.”

Historically, Dow says, TDS had seen lethal injection claims gain no traction with the courts. “Our view was that raising a legal injection claim on behalf of Richard would have been frivolous, a waste of time and resources,” Dow says.

But on Sept. 25, the TDS team knew unequivocally that a new avenue of appeal had opened, because the Supreme Court agreed to hear Baze, says Dow. They had to pursue relief for Richard related to the constitutionality of lethal injections. But time was short.

“We were in a fairly intense cauldron,” recalls Dow. “We had six hours before an execution.”

To best pursue a Baze-related claim, Dow believed Richard needed to go to the CCA, where Dow says he expected the judges to deny relief. But by going to the CCA, Dow says, Richard would have exhausted state remedies and would therefore have a clear path by the evening to file an appeal of an unfavorable CCA decision with the U.S. Supreme Court. He did not necessarily need to exhaust other federal remedies to go to the Supreme Court, Dow says.

Dow says he initially planned to file a petition for a writ of prohibition and a successive petition for writ of habeas corpus with the CCA. Dow believes the intellectually sound vehicle for raising a claim related to the constitutionality of lethal injection procedures was a writ of prohibition rather than a writ of habeas corpus. Habeas proceedings are intended to challenge convictions and sentences, he says. Writs of prohibition can be tailored to focus on methods of execution.

Dow had targeted his filings for the CCA, because he says he knew the U.S. Supreme Court was unlikely to hear any appeals that had not first been reviewed by the CCA.

Richard Wetzel, who served as CCA general counsel from 1987 until 2003 and now practices as a solo in Austin working on habeas petitions for death-row inmates, agrees. He says the high court rarely will hear a habeas petition, writ of prohibition or a motion for a stay of execution unless a state’s highest criminal court — in Texas, the CCA — has ruled on it.

The Supreme Court does on rare occasion agree to hear appeals previously not reviewed by a state court, so-called original habeas petitions (or extraordinary writs), but it did so in only four individuals’ cases in the 20th century, according to “Federal Habeas Corpus Practice and Procedure” by New York University School of Law professor Randy Hertz and Columbia University School of Law professor James S. Leibman.

Dow didn’t want to pursue relief from the federal courts, because those courts, the 5th Circuit in particular, had a track record of denying relief if an execution was imminent.

Dow says, “I ruled out the federal court option, because I didn’t think that we were going to have time to go to both federal and state court. I thought that the legal issues that faced us in state court were less daunting than the hurdles that faced us in federal court,” referring to 5th Circuit decisions barring last-minute challenges to methods of execution.

Dow set a 3:30 p.m. deadline for Lagarda to turn in a combined draft of a writ of prohibition and a writ of habeas corpus, which he planned to craft into two filings. He also asked her for a stay motion. “I figured it would take me 30 minutes to edit,” says Dow. Lagarda got him the draft of the three filings in one document on time, Dow says.

Dow, who had left UH to work in TDS’ Houston offices, edited the draft until around 4 p.m. That’s when he tried to e-mail it to Lagarda’s computer, so she could add exhibits as attachments. But panic set in when Dow’s computer wouldn’t let him e-mail the filing. Dow says he tried to save the document on a network drive, ran into problems and then realized the whole office no longer had Internet access.

“We were having big computer problems, and we were not going to be done by 4, and that we could only get one filing, rather than two, out,” Dow recalls.

He decided to file a writ of prohibition and motion for stay with the CCA, not a successive habeas petition. In the writ he included a footnote reminding the court that it was “not limited by the denomination of the instant petition” — meaning that the court could judge the filing as a writ of habeas corpus if that’s what the judges wanted, Dow says.

At about 4:30 p.m., Dow says he shouted to Lagarda to have paralegal Rindy Fox call Abel Acosta, the CCA’s deputy clerk, and tell him TDS needed extra time to file the writ and motion because of computer problems. Within moments, Dow says, Lagarda told him that Acosta said the court closed at 5 p.m.

Dow says he gave instructions for Fox to call Acosta again to explain the situation and ask if TDS lawyers could file electronically. Acosta told the paralegal he would check to see if the court could stay open later, Dow says. But at 4:51 p.m., Dow says, the deputy clerk called back and told Fox the court would close at 5 p.m. At that point, technicians resolved TDS’ computer problems, Dow says, and he e-mailed the petition for writ of prohibition and motion for stay to TDS staff in Austin, who began photocopying the documents.

When they finished at 5:10 p.m., Dow says, he told Fox to call Acosta one more time to see if the clerk would accept the filing. Dow says Acosta told Fox the court was closed.

Acosta declines to comment for this article, referring questions to CCA Judge Tom Price, who did not return three telephone calls seeking comment.

CCA general counsel Ed Marty refers questions about the events of Sept. 25 to Price as well. “We work for the judges,” Marty says, adding that since he arrived at the CCA in November 2003, he does “not recall an instance when the court has stayed open late.”

Last month, Marty told Texas Lawyer that when he learned Richard’s lawyers wanted more time, at about 4:45 p.m. on Sept. 25, he asked CCA Presiding Judge Sharon Keller if the court’s policy was to close at 5 p.m. Keller told him yes, Marty said. [See “Missed Deadline, CCA Closure Lead to Complaint Against Judge,” Texas Lawyer, Oct. 15, 2007, page 1.]

Dow says he doesn’t believe Acosta was the decision-maker.

Could the CCA clerk’s office have stayed open? Former CCA General Counsel Wetzel says yes. He recalls that during his tenure, CCA judges frequently considered requests for relief from executions in the middle of the night.

“I always stayed in touch with the defense lawyers. I had them bring stuff to my house. I had judges review filings in their pajamas. The court’s position was ‘bring it on, we will consider.’ There was always a venue available. Part of my job was to stay open to the last minute, and generally we were always able to reach judges.”

In October, CCA Judge Cheryl Johnson told Texas Lawyer she was the judge assigned to handle late motions in Richard’s case but she was not told that his attorneys had requested the court to remain open past 5 p.m. “I was out of the loop,” she said.

When asked why he didn’t call the CCA judges directly on Sept. 25, Dow says: “I wouldn’t know how to call a judge. I don’t have their cell numbers.” He also believes such communication might have been an ex parte conversation.

Keller declines a request to provide a chronology of events on Sept. 25. “The court’s just not commenting on it,” she says.

But Keller told the Austin-American Statesman in an Oct. 3 article:

“I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given. And I know that that is not what other people have said, but that’s the truth. They did not tell us they had computer failure. And given the late request, and with no reason given, I just said, ‘We close at 5.’ I didn’t really think of it as a decision as much as a statement.”

In an Oct. 5 Houston Chronicle article, Keller was quoted as saying: “You’re asking me whether something different would have happened if we had stayed open, and I think the question ought to be why didn’t they file something on time? They had all day.”

Harris County Assistant District Attorney Lynn Hardaway, who represented the state in its post-conviction litigation with Richard in state court, agrees. She says motions for a stay “don’t have to be long documents. They could have been handwritten.”

Bell County District Attorney Henry Garza agrees. Regardless of computer problems, Garza says, “I certainly can express on one handwritten page a motion for a stay based on Baze,” Garza says.

But Dow rejects the notion that he could have dashed off something short to a trial court or the CCA.

There was absolutely no chance a motion for modification or withdrawal of execution date would be granted by a trial court, Dow says. Based on his experience in filing such motions for clients who had Atkins-related claims, Dow says he knew state trial courts would say no. He notes that, after Sept. 25, no state trial courts in Texas, despite condemned men’s requests, granted Baze-based motions for modifications or withdrawal of execution dates. “Any lawyer in Texas who is counting on a trial court to grant a stay because of a cert grant in the Supreme Court is crazy,” says Dow.

“The notion that we were going to get anything from state [trial] court was absurd,” says Dow, based on his experience with Texas courts.

Regarding filing something short with the CCA, he says, “Our only thought was to run something [Baze-related] through state court [the CCA] so we could go to the Supreme Court and it could grant a stay if it wanted.”

Dow says he didn’t file something short with the CCA, because he thought the Baze-related document needed to be comprehensive. His petition for writ of prohibition — intended for the CCA but eventually filed in the 182nd District Court in Harris County — was 23 pages long. “At that time we felt we had to make a full, robust argument,” Dow says. Filing a one-pager that day “would have been preposterous,” he adds.

Shut out of the CCA, Dow says he scrambled for other options. He began to prepare to file a motion for a stay directly to the U.S. Supreme Court, which he knew would accept a faxed or electronic filing after 5 p.m. He also sent TDS office administrator Sally Sepulveda to the trial court in Houston shortly after 5 p.m. to file the stay motion and petition for writ of prohibition prepared originally for the CCA.

Lawyers for the state were paying close attention to events in Richard’s case that day. Hardaway had left her house that morning before 9 a.m., knowing Richard’s execution was scheduled. As a result, she expected to stay in the office late, at least until after the execution took place or, alternatively, a court halted it so she could answer any questions or respond to any last-minute requests for relief by the defense.

By noon on Sept. 25, Hardaway was in regular contact with Baxter Morgan, an assistant attorney general in the post-conviction litigation division of the Office of the Attorney General. In his job, Morgan represents the Texas Department of Criminal Justice when the agency opposes death-row defendants seeking habeas relief in the federal courts. Also, as the lawyer for the Texas prison system, on execution day he stays in regular contact with a prison warden at the Walls Unit in Huntsville, where officials prepare for an execution. Responding to e-mailed questions sent to AG spokesman Jerry Strickland, Morgan explains his office’s general role in executions: “[W]e try to ensure that the convicted capital murderer does not have any pending or potential litigation under way when the execution warrant is carried out at the court-appointed time.”

Hardaway says she talked several times with Morgan who kept her apprised of the defense’s plans as he understood them. She spent much of the morning in court on another case and the rest of her time waiting for defense attempts to obtain last-minute relief for Richard.

Morgan says that he called TDS’ Wiercioch at 2 p.m. on Sept. 25 and that Wiercioch told him that the defense was working on a constitutional challenge to lethal injection. By 2:30 p.m., Morgan says, Morris Moon, a TDS staff lawyer, called him to say TDS would file a successive state habeas petition and a petition for mandamus raising a lethal-injection claim with the CCA. Morgan further says that on the afternoon of Sept. 25 he repeatedly called Wiercioch, who was working on the Atkins claim rather than the lethal injection claim, to ask about the proposed filings with the CCA based on a constitutional challenge to lethal injection. “The response was in essence, ‘We are working on it,’ ” Morgan says.

For his part, Wiercioch says, he initially told Morgan that he wasn’t working personally on the lethal injection claim, instead focusing on the Atkins claim. Wiercioch says he told Morgan about the computer problems around 5 p.m.

Working from TDS’ Austin offices, where the computers were working, by 4 p.m. on Sept. 25 Wiercioch filed supplemental pleadings with the U.S. Supreme Court in support of Richard’s Atkins claim. At about 5 p.m., the high court faxed back its ruling on the Atkins claim, rejecting relief for Richard, says Wiercioch, who worked for TDS in Texas for nine years before he launched the nonprofit’s San Francisco office.

At 5:45 p.m., with news of the high court’s rejection of Richard’s Atkins claim, Morgan states he contacted Wiercioch again. Wiercioch told Morgan the defense team planned to file a second claim with the Supreme Court, this time based on Baze, according to Morgan.

Wiercioch, who says he was still in shock upon learning the CCA wouldn’t stay open past 5 p.m., remembers the call from Morgan as disturbing. “Are you going to file anything, because as far as I’m concerned nothing further is pending,” Wiercioch remembers Morgan saying. Wiercioch says the assistant AG was “officious, almost as if he was reading from a decree.” At the end of the conversation, Wiercioch says, Morgan announced, “I’m going to give you six minutes to file whatever you’re going to file.” Wiercioch recalls telling Morgan that TDS would not make the deadline he had imposed.

Asked about the characterization of the telephone conversations between Wiercioch and Morgan, Strickland writes, “The Texas Defender Service and Greg Wiercioch’s recollection and characterization of the conversation are not accurate. The attorney general’s office proactively communicated with convicted murderer Michael Richard’s counsel. Once we learned that no litigation was pending before either the Texas Court of Criminal Appeals or the U.S. Supreme Court when the execution order became effective, we urged counsel to file any remaining appeals as quickly as possible. Richard’s counsel knew full well that the execution warrant, which is a court order, would be effective as of 6 p.m.”

It was about 5:50 p.m. when TDS office administrator Sepulveda and assistant DA Hardaway met in the elevator at the Harris County Criminal Justice Center, Hardaway recalls. Hardaway says she had anticipated all day that defense counsel would file something, somewhere, to attempt to halt Richard’s execution. When Hardaway learned from Morgan that TDS lawyers had missed the CCA’s deadline and were going to file in the trial court, she headed for the lobby to make sure she got a copy. Hardaway says she showed Sepulveda the box in the courthouse lobby where she could deposit her documents and get an after-hours file stamp on a copy.

Without closely looking at the filing Sepulveda gave her, Hardaway says, she presumed Richard’s lawyers had filed a subsequent habeas application, which by law the trial court sends to the CCA. She called Dow and told him that she would send the filing on to the CCA. But after reading the document and realizing it was a petition for writ of prohibition and motion for stay, not a subsequent habeas application, she called Dow back and told him, “There is no action for me to take on this.”

She says if Dow had filed a motion to modify the execution date, a trial judge could have acted on it. “I would have gotten the judge on the phone,” says Hardaway. Or if the defense had filed a subsequent habeas writ, the trial court would have sent it to the CCA, Hardaway says. But what TDS filed on Richard’s behalf was a petition for writ of prohibition and motion for stay of execution, both of which, Hardaway says, are appropriately filed directly with the CCA.

Hardaway told Dow that she had called Barr and she and the judge agreed that the trial court could do nothing with the stay motion and the writ of prohibition, because those should have been filed with the CCA.

Barr did not return two telephone calls seeking comment.

Dow says he knew the documents were not appropriately filed with the trial court, but he wanted to get something filed in a state court before going to the U.S. Supreme Court.

At 6 p.m. the court-ordered warrant for Richard’s execution became effective. Morgan states that by that time he agreed to wait for Richard’s lawyers to file one last appeal with the Supreme Court, even though no litigation was pending and the death warrant was in effect. Morgan states that Wiercioch told him TDS was preparing to file a motion for stay of execution with the Supreme Court based on Baze, which the defense team did.

In the Baze-based motion for stay of execution, the TDS lawyers noted, “This morning, this Court agreed to review precisely the question that Mr. Richard seeks to raise.” The motion also explained what had happened earlier in the day after computer problems hampered TDS’ efforts to file a Baze-based motion for stay within the CCA’s business hours: “The clerk of the Court [of Criminal Appeals] refused to remain open past 5 p.m. to permit Mr. Richard’s counsel to file . . . pleadings,” the motion noted.

But at 7:30 p.m., the justices denied Richard’s request without stating why.

Dow says he still doesn’t know the reason for the high court’s denial. But four habeas lawyers interviewed believe the high court denied the motion because the TDS defense team hadn’t gotten a ruling from the CCA. They note that, after Sept. 25, the Supreme Court has halted the scheduled executions of all death-row inmates who, after exhausting state and lower federal court remedies, sought stays based on Baze.

Upon learning about the Supreme Court’s denial of Richard’s request for a stay, Morgan states that he called Wiercioch again.

“Is this it?” Morgan says he asked Wiercioch, and Wiercioch answered yes.

Morgan says, “After the final conversation with Richard’s counsel, which was initiated by the Office of the Attorney General, we notified TDCJ that all litigation had been exhausted.”

Having exhausted their options with the courts, TDS turned to the executive branch. Wiercioch says at about 7:40 p.m., TDS’ Levin called Michael Bryant, assistant general counsel to Texas Gov. Rick Perry for the third time that day.

Levin says Bryant told her that although the CCA clerk’s office closed at 5 p.m. and the Supreme Court had decided to hear Baze, Perry would not grant Richard a reprieve, which Richard had requested in writing earlier that day.

Bryant declines to comment for this article, referring all questions to the governor’s press spokesman Robert Black. In an e-mail, Black’s office, noting complaints filed after Sept. 25 against Keller with the State Commission on Judicial Conduct, the state agency charged with investigating allegations of misconduct by judges, says, “Given that the facts surrounding the recent execution of Michael Richard are currently being reviewed by the Judicial Conduct Commission, it would be inappropriate for the Governor’s Office to comment. It should be noted, however, that the Governor’s Office waits to proceed until the courts have completed their work.”

At 8:20 p.m., the state executed Richard by lethal injection.

For Hardaway, who learned from the AG’s office that the execution had taken place, the end of Richard’s life meant the end of a long day of waiting: “We just always stay until the execution is complete,” she explains, “in case there are any questions to answer.”

Wiercioch says when he first learned the CCA had closed at 5 p.m., he thought about “getting on the phone and yelling at somebody.” But he says, “I don’t know any judges there. In hindsight maybe I should have gone over there and banged on the door.”

The closing of the CCA clerk’s office “took the air out of me, every last bit of energy,” Wiercioch says. “I wasn’t sure what to do. I still held out the hope that we were going to be allowed to file this thing. I also thought foolishly we would just tell the Supreme Court what happened and they’ll stay the execution. It’s very clear now Michael Richard shouldn’t have been executed on Sept. 25.”

Dow says the hour between the Supreme Court’s rejection of the motion for stay and the execution left him more unsettled than he usually becomes during such depressing days for TDS lawyers. He believed, during the 90 minutes it took the high court to reject the stay, that the court might grant it.

Aftershocks

The news reports that circulated about Keller refusing to keep the CCA clerk’s office open past 5 p.m. on the day Richard faced execution prompted complaints to the State Commission on Judicial Conduct.

Texas Civil Rights Project director James C. Harrington is among the lawyers who have filed complaints against Keller with the State Commission on Judicial Conduct. In an Oct. 11 complaint, Harrington and 19 other attorneys allege that “Judge Keller’s actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution. Her actions also brought the integrity of the Texas judiciary and of her court into disrepute and was a source of scandal to the citizens of the state.”

Harrington also filed a grievance with the Office of the Chief Disciplinary Counsel (OCDC) of the State Bar of Texas in October.

A letter to Keller from the OCDC, dated Nov. 1, states that it dismissed the grievance after determining that the information provided did not allege professional misconduct or a disability.

The National Association of Criminal Defense Lawyers (NACDL) filed a complaint against Keller with the judicial conduct commission on Oct. 23, says Jack King, the association’s director of public affairs. King says it is the first complaint the NACDL has ever filed against a judge.

Austin solo Keith Hampton says the Texas Criminal Defense Lawyers Association filed a complaint against Keller with the judicial conduct commission on Oct. 25. “We asked them to look at this seriously,” Hampton says.

Seana Willing, the commission’s executive director, declines comment on how many complaints it has received against Keller. “I cannot confirm or deny we’ve received any complaints,” Willing says.

Keller, who has been on the CCA since 1994 and has been presiding judge since 2000, has earned the enmity of death penalty opponents, some of whom have started a blog at www.Sharonkiller.com dedicated to enlisting support to impeach her.

Also criticized has been the CCA’s lack of an electronic-filing system for handling after-hours pleadings. The CCA announced on Nov. 6 that it had established a temporary electronic filing system. [See “CCA Creates E-Mail Filing System for Urgent Pleadings,” Texas Lawyer, Nov. 12, 2007, page 5.]

On Nov. 7, Richard’s widow sued Keller and unnamed defendants in the U.S. District Court for the Southern District in Houston seeking unspecified monetary damages, including punitives. Among other allegations, Marsha Richard alleges in her original complaint in Richard v. Keller, et al. that Keller acted without authority when she prevented Michael Richard’s lawyers from filing a petition for writ of prohibition and a motion for stay of execution in the CCA. In addition to damages, the widow asks the federal court to enjoin the defendants from “again unlawfully interfering with the due process appeal rights of the condemned under the United States and Texas Constitutions.” On Nov. 8, Marsha Richard’s lawyer filed a notice of dismissal in that court. A day later, he mailed the suit to the Western District of Texas. [See “Presiding Judge Sued,” Texas Lawyer, Nov. 12, 2007, page 3.]

With so many questions and complaints lingering, Michael Wayne Richard’s last words couldn’t have been more wrong.