A commenter here has provided a link to a copy of Sharon Keller's request to dismiss the lawsuit against her filed by Michael Richard's wife.

Keller claims in the motion that there was no reason for her to order the court to stay open because other judges on the CCA could have been contacted directly, whether the clerk’s office was open or closed. She does not explain in the motion to dismiss, however, why she did not tell the court's clerk to tell Richard's lawyers to contact the duty judge or why she did not tell the clerk to inform the duty judge that the lawyers wanted to submit an appeal.

Keller told the lawyers for Richard "We close at 5". This was a lie, because according to her own admission, the duty judge and any judge on the CCA can accept after hours submissions. It is also a lie because she acknowledges in her motion to dismiss that she had the authority to keep the clerk's office open after 5, but she chose not to.

A truthful statement would have been, "We close at 5, but I have the authority as presiding judge to keep the court open past five in order to accept your appeal or you may just contact the duty judge on this case who is Judge Cheryl Johnson and here is her phone number".

In the course of arguing that the lawsuit should be dismissed because she was acting in her official capacity, Keller admits that she has the authority as presiding judge to keep the court's clerks open after 5pm. Excerpt:

Texas statutory law provides that the normal office hours of a state agency are from 8 a.m. to 5 p.m., Monday through Friday. It also authorizes, but does not require, the chief administrator of a state agency to keep offices open during other hours if the administrator “considers it necessary or advisable.” Thus, under Texas Law, the CCA closes at 5 p.m. unless Judge Keller exercises her discretion in her capacity as Presiding Judge to keep the court open.

and

Only Presiding Judge Keller had the authority to keep the clerk’s office open beyond the state-mandated hours. However, as discussed above, she was under no duty or obligation to do so
since any CCA judge could have accepted the filing. Richard did not need the clerk’s office to remain open because he could file his motion with the judges that Plaintiff admits remained at the CCA past 5 p.m.

In response to a request for public information to her from the Houston Chronicle, Keller admits that she broke the unwritten rules of the court. For that breach of the rules, she should be removed from office.

Excerpt from Chronicle: 

In its public information request, the Chronicle asked for the state appeals court procedures for handling death penalty cases on the day of Richard’s execution.

“No written policies regarding those matters existed on that date (Sept. 25),” Keller wrote. “Subsequent to that date, the court reduced to writing the unwritten policies that did exist on that date.”

The written policy the court later adopted said the judge assigned to the case should stay on duty on the day of an execution until the execution occurs. The policy also said “all communications regarding the scheduled execution shall first be referred to the assigned judge.”

It was a big week in the fight to hold Keller responsible for her unethical behavior in the “We close at 5” fiasco. The Houston Chronicle wrote two news articles with new information from Keller herself and today Rick Casey comments on the situation in his column.

Casey’s column today “Death judge broke rules” asks if Sharon Keller will be held accountable. The evidence is mounting that Keller broke the rules of her court and so she certainly should be punished. In fact, since her behavior resulted in the death of a person, which can not be reversed, she should be sanctioned with the most severe punishment, including removal from office.

Casey’s column is in response to an earlier article by R.G. Ratcliffe on Dec 13th in the Chronicle (Judge in death case violated policies“) that reported that she admits there was an unwritten policy and she broke it.

Excerpt from Casey’s Sunday column:

Yet in response to public information requests from the Houston Chronicle and at least two lawyers, Keller herself disclosed a contrary policy that was in place on that day, though it wasn’t set down in writing until later.

The policy required that one of the court’s nine judges “be assigned to be in charge of each scheduled execution.”

“Unless the Court has been informed by defense counsel that no pleadings will be filed, or pleadings have been filed and ruled on,” both that judge and the court’s general counsel must be available “until the time of execution has passed.”

In other words, unless the condemned person’s lawyers notified them otherwise, the court’s policy was to assume there would be last-minute appeals and to be ready to receive them.

Part of the policy was carried out. Judge Cheryl Johnson was assigned to be the judge in charge, and made herself available to be contacted.

The policy also required that “all communications regarding the scheduled execution shall first be referred to the assigned judge.” That specifically includes “telephone calls.”

Johnson expressed anger that she was not alerted of the attempt to appeal. By the time she learned of it from media accounts, Richard was dead.

In another article on Dec 14 in the Chronicle “Judge wants wrongful death lawsuit dropped“, reporter Lisa Sandberg reported on a motion by Keller to dismiss a wrongful death lawsuit against her. Keller’s new story is that Richard’s lawyers could have contacted any other of the judges on the court and submitted their appeal. But instead of her telling them that they could contact another judge, such as the duty judge, she instructed her clerk to tell them “We close at 5”. That is where she broke the policy. She should have told the clerk to inform the duty judge of their request to submit an appeal.

Excerpt from Sandberg’s article:

But in a motion, Keller said Texas law “provides a clear and unambiguous avenue for litigants to file documents with the (Court of Criminal Appeals) directly through any of its judges, so Richard did not need the CCA clerk’s office to stay open after hours to file his motion.”

This is the first time Keller has claimed Richard’s lawyers could have directly gone to other judges on the court. She previously has tried to shift blame to Richard’s lawyers by saying they had all day to file.

New reporting from the Houston Chronicle’s R.G. Ratcliffe (“Judge in death case violated policies”) includes an admission from the unethical presiding judge of the Texas Court of Criminal Appeals, Sharon Keller, that she violated the unwritten rules of the court on the day she said “We close at 5” and refused to accept an appeal from a man set for execution that day.

The rules have since been written down to prevent a similar injustice, but the unwritten rules in effect on Sept 25 were that Keller should have referred the request from Michael Richard’s lawyers to keep the court open 20 minutes after 5 pm to the duty judge, but instead she decided on her own to close the court and refuse the appeal. The policy, which has since been written down, is that “all communications regarding the scheduled execution shall first be referred to the assigned judge.”

Now that has admitted wrongdoing, there is no doubt that Sharon Keller should accept the demands on her to resign. More than 1,800 people have signed a judicial complaint against her with the State Commission on Judicial Conduct.

Click here to watch an excellent video report of a protest against Keller on Nov 16 from FOX 7 News. We kept the court open late that day accepting letters from people urging Keller to resign.

Excerpt from Houston Chronicle:

In response to a public information request from the Houston Chronicle, Keller said in a letter that no written court procedures existed Sept. 25, the day of Richard’s execution. However, she said the new written rules reflected the court’s unwritten policies on that day.

Keller was not the judge assigned to handle Richard’s appeal when she decided to close the clerk’s office so that Richard’s lawyers could not file a late appeal.

Judge Cheryl Johnson was in charge of Richard’s case on the day of his execution, but did not learn of his lawyers’ attempts to file for a stay of execution until the day after his death.

and

In its public information request, the Chronicle asked for the state appeals court procedures for handling death penalty cases on the day of Richard’s execution.

“No written policies regarding those matters existed on that date (Sept. 25),” Keller wrote. “Subsequent to that date, the court reduced to writing the unwritten policies that did exist on that date.”

The written policy the court later adopted said the judge assigned to the case should stay on duty on the day of an execution until the execution occurs. The policy also said “all communications regarding the scheduled execution shall first be referred to the assigned judge.”

SharonKiller.com

We need to find some good candidates for the discredited Texas Court of Criminal Appeals. In 2004, Texas Monthly called the all-Republican Texas Court of Criminal Appeals the “Worst Court in Texas” in a bold headline on the cover of the magazine. In this month’s magazine, Texas Monthly says that Sharon Keller, the CCA’s Presiding Judge, should be impeached for her unethical behavior on Sept 25, when she said “We close at 5” and refused to accept an appeal from a man set for execution that night. Excerpt:

When a man’s life is on the line—to say nothing of the U.S. Constitution—our top criminal judge should behave like one: with prudence, fairness, and a calm hand. It’s time for Keller to go. If the commission doesn’t act quickly, we’ll have to wait until January 2009, when the Legislature—which has the power to oust high judges—reconvenes, or worse, 2012, when Keller is up for reelection. The fact is, we need to do it now. Impeach Sharon Keller.

Keller is not on the ballot in 2008, but that does not mean the Court should get a pass.

Grits for Breakfast has written extensively on the need for candidates to step up now and run for the CCA:

Of the incumbents who’re up next go-round, at least Tom Price has the good sense to call a spade a spade, vocally declaring some time ago that the court’s radical pro-prosecution precedents made them a “laughingtsock” around the nation’s legal community. And Cathy Cochran finally came out to publicly criticize the Presiding Judge over the recent “We close at 5” debacle. The other judge up next year, Paul Womack, probably should be targeted before those two, but really IMO it’s time to begin a comprehensive infusion of fresh blood.

There are three seats up and Democrats should find strong candidates for all of them. Both Scott Henson at Grits and I have separately asked some people to run, but so far no one has said yes. Now, there are only three weeks left before the filing deadline. We need to find someone before it is too late.

A Democrat can win election to the CCA in 2008 for two main reasons 1) the national political environment is favorable to the Democrats and a winning Democratic presidential candidate could have an impact on lower ballot races and 2) the “laughingstock” reputation of the CCA is likely to cause many editorial boards and other organizations to endorse a well-qualified challenger to the Republican incumbents on the ballot.

The key here is “well-qualified”. In 2006, some media outlets, including the Dallas Morning News, wanted to endorse someone other than the Republican incumbents, but they did not think the challengers were up to the task in 2006. Excerpt from the DMN editorial:

When it comes to uninspiring court contests, the statewide Court of Criminal Appeals pretty much takes the cake.

Three Republican incumbents, none of whom deserves to be a shoo-in for re-election. One Democrat and two Libertarians, none of whom could be bothered to show up for an interview – or, in the case of the Democrat, complete a questionnaire.

Keller is not on the ballot, but she can be an issue in the election. She only won in 1994 anyhow because of down-ballot pull on the heels of the sweeping national Republican victory that year. It is time for the tables to turn.

I am writing this post to ask the blogging community to help find good candidates for the CCA. Help us find a practicing lawyer, a law professor, or a judge whom we can interest in running for the CCA.

Please use the comments to suggest people the Texas Democratic Party should contact about running for the court. Or email names to me at scottcobb99 (at) gmail.com and I will pass them along to the state party.

Candidates for the court are required to submit 50 signatures from each of Texas’ 14 appellate districts, so even after a candidate is found, the blogging community should be ready to help the candidates get those signatures. I am ready to help.