Chuck Lindell of the Austin American Statesman has been producing excellent journalism on the Sharon Keller case. In a blog post today, he reports on the exchange on the stand between Keller and prosecutor Mike McKetta. During the exchange, Keller confirmed that she used the phrase “we close at 5” during the telephone conversation on Sept 25, 2007 with general counsel Ed Marty.

Based on Cheryl Johnson’s testimony on Monday that Johnson was the duty judge and Keller’s testimony Tuesday, it is clear that Keller violated the Execution Day Procedures and should be removed from office.

Excerpt

McKetta: “You have no precise recollection of the words you used?”

“Right.”

McKetta: “You remember saying ‘No, why?’ … And your best recollection is that Ed Marty said, ‘They wanted to file something but they were not ready.’ … And you said, ‘No,’ right?”

Keller agrees.

Then McKetta pointed to an Oct. 3, 2007 Austin American-Statesman article that quoted Keller as saying: “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.”

On Tuesday in court, McKetta asked: “You did say we close at 5?”

Keller: “I think I did.”

McKetta: “So you didn’t just say, ‘No, why?’ and ‘No’?

Keller: “I think I did.”

XXX

McKetta: “So in addition to ‘No, why?’ and ‘No,’ there was a clear statement that we close at 5?

Keller: “I told him that we close at 5.”

XXX

McKetta: “At a minimum, you knew they wished to file and were not ready?”

Keller agrees.

McKetta: “What more did you ask to know before you said no a second time?”

Keller: “I don’t remember.”

Questions about following the Court of Criminal Appeals’ execution-day procedures:

“You knew that this (call from Marty) was about tonight’s execution?” McKetta asked.

“Yes.”

McKetta: “You knew you were not the assigned judge?”

“Yes.”

McKetta: “You knew there was an assigned judge?”

“Right.”

XXX

McKetta: “You were aware that the lethal injection protocol might be basis for a challenge (by Richard) that very day?”

“Yes.”

XXX

McKetta: “You knew the call dealt with the scheduled execution?”

“Right.”

“You knew it dealt with somebody making a call to the court?”

“Right”

“That it was about that night’s execution?”

“Right.”

“That you were not the assigned judge?”

“Right.”

“That there was an assigned judge?”

“Right.”

“That if the execution were to take place that it could not be undone?”

Keller agrees.

David Dow and Sharon Keller are expected to testify on day two of the trial of Sharon Keller, according to the Texas Lawyer blog.

The highlight of day one yesterday was the testimony of Cheryl Johnson, the duty judge on the night of Sept 25, 2007 when Michael Richard was executed. According to reporting in the Statesman by Chuck Lindel, Johnson:

said Keller violated Court of Criminal Appeals procedure in 2007 by unilaterally denying defense lawyers the opportunity to file execution-day briefs after 5 p.m. after she refused to keep her court open late to accept a man’s last-minute appeal.

“She should have directed (the request to file late briefs) to me,” said Johnson, who had been assigned by rotation to be the only judge expected to handle execution-day phone calls, faxes and filings from lawyers for the inmate, Michael Richard.

“And I would have told them that they could file,” Johnson said. “It’s an execution. They might be valid pleadings. I have no other way of knowing.”

Johnson, however, said she didn’t learn about the request for more time until four days after Richard was executed — an account contradicted in parts of a witness deposition revealed Monday.

“I was upset by it. I was frustrated,” she said. “And it made the court look bad.”

Below are a couple of other news stories from day one. You can also see the videos on YouTube here and here.

Editorial: TEXAS JUSTICE SYSTEM

Keller drags Texas through the mud

Austin American Statesman

Editorial Board

Monday, August 17, 2009

No matter the outcome of the hearing scheduled to begin today that could end in sanctions against embattled Texas Court of Criminal Appeals Chief Justice Sharon Keller, her already battered reputation will be pounded some more. While the judge’s many detractors will find some satisfaction in that, the Texas way of administering criminal justice also will take a beating.

A politician’s reputation is insignificant in the grand scheme of things, but if a society claims to be one based on law, then its justice system is only as good as the confidence in it.

Beyond the question of whether Keller’s handling of a last-minute death row appeal was legally appropriate is the much larger question of whether criminal appeals in Texas are handled objectively and whether the state’s court of last resort in criminal cases is in reality nothing more than a state agency dedicated to upholding convictions.

Texas has always relished its “tough on crime” reputation. Politicians who campaign against crime always find a friendly crowd, and Keller jumped on that and rode pro-prosecution rhetoric to a seat on what should be an objective forum for hearing appeals. But promising fairness is boring and doesn’t get you on television.

Keller — and by extension, the state’s justice system — has been the subject of hours of air time, gallons of ink and enough bytes of electronic information to operate a fleet of spaceships as a result of the case that has led to today’s proceedings before the State Commission on Judicial Conduct.

A brief background: Lawyers for convicted killer Michael Richard tried to file a last-minute, after-hours appeal in 2007. According to Richard’s lawyers, they were having computer problems and asked if they could file motions after 5 p.m. They said they were told “no.”

Keller’s lawyer disputes that now-famous reply. Furthermore, he claims that defense lawyers are to blame for Richard not getting a hearing.

Only two months after his release from a second prison term in 1986, Richard raped, shot and killed Marguerite Lucille Dixon, 53, a nurse and mother of seven, inside her Harris County home. Richard won a second trial after pleading that he was abused as a child and possessed an IQ well below average. Tried again, he was convicted again in 1995 and sentenced to death.

The last-minute appeal was based on the U.S. Supreme Court’s announcement earlier that same day that it would hear a case arguing that death by injection violates the Constitution because it constitutes cruel and unusual punishment.

Keller’s critics say closing the Texas Court of Criminal Appeals to the appeal was callous. The state’s Commission on Judicial Conduct filed a list of more legal complaints against Keller in connection with the Richard case.

The he-said, she-said nature of the depositions doesn’t hold much promise for shedding light on the situation but offers a rare glimpse into the court’s inner workings. However repugnant some may find it, the hearing ought to be considered mandatory viewing.

Some commentators predict that the worst that will happen is that Keller will end up with a slap on the wrist once it’s all said and done.

If so, that slap on the wrist will result in yet another black eye on a Texas justice system that is supposed to be blind.

Representatives of Peoples’ Judicial Complaint Signed by About 1,900 Members of the Public to Participate in Demonstration at Trial of Sharon Keller

A group of people who signed a judicial complaint against Judge Sharon Keller will hold a demonstration at 8 AM in San Antonio at the Bexar County Courthouse before Keller’s trial begins on August 17. The trial is expected to begin at 9:30 AM. The demonstration will be held near the entrance of the building in which the trial will take place in the courtroom of David Berchelmann jr, presiding judge of the 37th District Court, at 100 Dolorosa in San Antonio. The group will represent the approximately 1,900 people who signed a judicial complaint against Keller submitted by Texas Moratorium Network to the State Commission on Judicial Conduct in November 2007.

Why: “Keller has damaged the integrity of the Texas judiciary and violated the public trust placed in her by the people of Texas. She has violated several provisions of the Code of Judicial Conduct and denied Michael Richard his constitutional right not to be deprived of life without due process and denied his right to be heard in court. Because of her arbitrary decision not to stay open to accept the appeal of death row prisoner Michael Richard, which she made in violation of her own court’s rules and without consulting the other judges on the Court, Keller should be removed from office”, said Scott Cobb, president of Texas Moratorium Network.

From the judicial complaint filed by TMN: “It is clear from her actions that Judge Keller can no longer be expected to preside over death penalty cases with the requisite fair, bias-free and even-handed disposition so critical to such serious life and death matters. Justice was not done in the Richard case, and if it was not done because Keller dishonestly said “We close at 5″, then there is no question that Keller is unfit to be a judge and should be removed from office”.

Date: Monday, August 17, at 8 AM

Place: Outside Bexar County Courthouse
100 Doloroso
San Antonio, Texas

The demonstration is sponsored by Texas Moratorium Network, Texas Death Penalty Abolition Movement, Texas Students Against the Death Penalty and Campaign to End the Death Penalty – Austin.

A PDF of the judicial complaint filed in November 2006 is here: http://su.pr/2ArO3J

A video of a copy of the judicial complaint being delivered for Sharon Keller to the clerk of the Texas Court of Criminal Appeals in November 2007 is on YouTube at http://www.youtube.com/watch?v=dbVd9P3R7MU. The video contains a statement by the sister of Michael Richard outside the CCA.