The Dallas Morning News is reporting that another troubling incident occured at the Texas Court of Crminial Appeals and that Judge Cheryl Johnson reported this second incident to the State Commmission on Judicial Conduct, which interviewed the CCA’s general counsel. This case involved an appeal for Larry Swearingen, whose appeal includes strong claims of innocence.
Just weeks before the presiding judge of the Texas Court of Criminal Appeals was charged with “willful and persistent conduct” that discredited the judiciary, she was involved in a second incident in which lawyers for a condemned man were initially blocked from filing a last-minute appeal.
Judge Sharon Keller, a former Dallas prosecutor, was called shortly after the court’s general counsel and a clerk refused to formally accept legal filings requesting a halt to the execution of Larry Swearingen, a well-placed source told The Dallas Morning News. Keller’s attorney confirmed she was alerted but said it was after the incident was resolved.
The January incident was reminiscent of the September 2007 case in which Michael Richard was executed after the court, allegedly on Keller’s orders, refused to stay open past business hours to accept his attorneys’ appeals.
Amid the nationwide controversy that erupted over Richard’s execution, the state’s highest criminal appeals court formalized its rules of procedure for executions. The written procedures said the duty judge should be notified of any filings and work closely with the general counsel “to reasonably accommodate” defense lawyers, especially if they notified the clerk’s office that they were at risk of missing the deadline.
The Swearingen incident showed that problems remained.
Swearingen’s lawyers arrived at the clerk’s office at 5:01 p.m. on Friday, Jan. 23, after calling to say that copying problems were causing unexpected delays. Once inside, they were told their filings would not be entered into the court record until the office reopened Monday morning. That delay could have shortened the court’s timeframe for evaluating the appeal and subjected defense counsel to sanctions for failing to meet a 48-hour deadline for filing petitions in execution cases.
Their pleadings were accepted only after another judge on the court, Cheryl Johnson, intervened and ordered the chief clerk to return to the courthouse, several people involved in the matter said.
Although there is some dispute over what role Keller may have played in the latest case, she has long been a lightning rod for opponents of the death penalty, who contend she routinely favors the state’s position in capital cases. After the Richard execution, even some of her fellow judges were publicly outraged.
One of them, Johnson, had been the duty judge for Richard but had not been notified of the filing problems in that case. She intervened in the Swearingen case after his lawyers called her for help.
She later reported the incident to the state Commission on Judicial Conduct, the source said, on condition of anonymity. The commission interviewed the court’s general counsel about Swearingen, the source added.
Judge Mike Keasler said he, too, heard the commission had interviewed the general counsel, although he was not sure why.
The executive director of the judicial conduct commission, Seana Willing, said she could not confirm or deny knowledge of the Swearingen incident. She said she also could not discuss whether a complaint had been filed or anyone had been questioned.
Johnson declined to discuss the matter.
“Given all that’s pending right now, I really don’t want to comment,” she told The News. “Richard was not pending, and Swearingen is still pending. I’m going to leave it at that.”
Unlike Richard, Swearingen was not executed. A federal appeals court stayed his execution the day before he was to die to give his lawyers more time to pursue their case.
Concerns about how Swearingen played out, including why the judge assigned to the case was not notified, have prompted court members again to try to clarify their procedures, Keasler said.
“We need to get things as clear and as understandable so that everybody knows about it as much as possible,” he said.
