When considering the behavior of Sharon Keller in the matter of Michael Richard, there are a couple of phrases that come to mind, at least to the mind of a non-lawyer: “obstruction of justice” and “malfeasance in office”. There needs to be an official investigation, by the State Commission on Judicial Conduct in the first place, but also by the Travis County District Attorney. The purpose of the investigations should be to determine if Sharon Keller abused her official position to impede Michael Richard’s access to the court and thus to justice.

According to newspaper reports Keller told the lawyers for Michael Richard: “We close at 5.”

Does the Court of Criminal Appeals really close at 5? Does it close at all? What does it mean to close a court? Can one judge “close” a court?

The Houston Chronicle reports that “At least three judges were working late in the courthouse that evening, and others were available by phone if needed”.

None of the judges was informed of Richard’s request by Keller or by the court’s general counsel, Edward Marty, who had consulted with Keller on the request.”

If that is true, then the court did not close at 5 and Keller lied. If she told the lie to the clerk of the Court and asked that it be passed on to the defense lawyers, then she either committed obstruction of justice or malfeasance in office.

Judge Cathy Cochran asked the right question when she said:

“First off, was justice done in the Richard case? And secondly, will the public perceive that justice was done and agree that justice was done?” Cochran said. “Our courts should be open to always redress a true wrong, and as speedily as possible. That’s what courts exist for.”

It seems apparent that 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.

Newspaper editorial boards and columnists have begun to comment on Sharon Keller’s refusal to accept a late appeal by Michael Richard. Meanwhile, Texas Moratorium Network and the Texas Civil Rights Project are two organizations expected to file complaints against Keller with the State Commission on Judicial Conduct.

Bob Ray Sanders says:

“Keller proves how unjust (or at the very least how insensitive) the highest criminal court in the state can be.

And once again, Lady Justice ought to be hiding her head in shame in the Lone Star State.

The Austin-American Statesman Editorial Board says,

“That callous disregard shocked the world, and the international outcry may have prompted Keller’s court to temporarily halt Chi’s execution. Texas was slow to recognize that executions should be banned while the high court determines whether lethal injections violate the Eighth Amendment’s cruel-and-unusual language.

Better late than not at all. If Texas continues to execute condemned prisoners on the eve of the Supreme Court decision, it will incur the scorn of the civilized world. After the offense of Richard’s death, Texas needs to adhere to expected standards of conduct and prohibit all executions until the Supreme Court rules.

Rick Casey of the Houston Chronicle, says:

Sharon Keller, Texas’ top judge on criminal matters, may have shocked much of the nation last week when she ordered a clerk not to stay open an extra 20 minutes to accept a last-minute appeal for a man on death row.

But she didn’t shock those who know her.

After all, this is the same judge who nine years ago responded to DNA evidence indicating the innocence of a man who had been in prison for years on a rape charge by writing that he may have used a condom.

The Dallas Morning News, in keeping with their recent heightened attention to death penalty issues, was the first newspaper editorial board to address the issue, saying on Oct 3:

That is unconscionable.

You might not lose sleep over the fact that the court wouldn’t stay open for 20 minutes to help a convicted rapist-murderer’s attempt to evade the needle a bit longer. You should think again.

When the state takes the life of a condemned criminal, it must do so with a sense of sobriety commensurate with its grave responsibility. Hastening the death of a man, even a bad one, because office personnel couldn’t be bothered to bend bureaucratic procedure was a breathtakingly petty act and evinced a relish for death that makes the blood of decent people run cold.

Sharon Keller thinks that failing to impose capital punishment is “a human rights violation”. At least that is what she told the Houston Chronicle in 1994.

Her peculiar understanding of human rights may explain why she refused to accept a late appeal from Michael Richard on the day of his execution in which he was asking for a stay while the U.S. Supreme Court considers whether the drugs used in lethal injections violate the 8th Amendment’s protection against cruel and unusual punishment. She may have thought she was exercising her own human right to impose capital punishment and that trumped whatever constitutional rights Richard might have had.

In 2001, the Houston Chronicle published an article in which it quoted from a 1994 interview with Sharon Keller when she first ran for a position on the Court of Criminal Appeals: :

During her campaign to replace outgoing Judge Chuck Miller, Keller criticized the sitting court as too lenient and openly displayed her support for the death penalty.

In an opinion piece the Chronicle published a month before Keller was elected, she called the failure to impose capital punishment on convicted murderers “a human rights violation — particularly if we take into account the human rights that murderers violate when left alive to kill again.”

Keller, a former appellate prosecutor for Dallas County, said in a recent interview that her strong views do not affect the way she decides capital cases.

“We look at the arguments of both parties,” she said.

Of course, now we know that she meant she looks at the arguments of both parties unless they arrive twenty minutes after 5 PM on the day of an execution, then she doesn’t look at anything.

Sign the judicial complaint against Keller. Anyone can sign. We plan to submit it on Oct 30, 2007 to the State Commission on Judicial Conduct.

The Texas Code of Judicial Conduct says: “The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code of Judicial Conduct are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system”.

The public trust in the Texas Court of Criminal Appeals has been broken because of Sharon Keller’s outrageous behavior.

In order to restore public trust in the Texas Court of Criminal Appeals, Texas Moratorium Network is planning on filing a complaint with the State Commission on Judicial Conduct against Sharon Keller. As reported in the Daily Texan:

“Today we find out Judge Sharon Keller made that decision all by herself and she didn’t consult with any of the other judges on the Court of Criminal Appeals,” said Scott Cobb, president of the Texas Moratorium Network, a nonprofit, organization in support for suspending executions in Texas.

Cobb said one judge is assigned to handle late appeals on the nights of scheduled executions, and Cheryl Johnson was working the night Richards was executed. Keller didn’t call Johnson to ask her if she would accept this late appeal, which resulted in what Cobb called an “unjust” execution.

“We’re calling on Judge Sharon Keller to resign her office because when you’re a judge you have to act with integrity and with the eye towards justice,” Cobb said. “If you’re not doing that, then you need to step down.”

Cobb said he and the organization will file a complaint with the State Commission on Judicial Conduct, which has the authority to remove a judge from office who is acting without integrity if she does not step down.

“We can’t have a presiding judge of the Court of Criminal Appeals that in a life and death case is going to close the office at 5 o’clock and allow someone to be executed – just on her own – without consulting any other judges,” Cobb said.

Now, the the Houston Chronicle is reporting that at least one other group may also file a complaint against Keller. Jim Harrington, director of the Texas Civil Rights Project, said he was thinking about filing a complaint with the Texas State Commission on Judicial Conduct about Keller.

The Houston Chronicle is reporting new details on what happened on the day Keller closed the court at 5 PM.

Texas Court of Criminal Appeals judges were ready to work late the evening Michael Richard was executed, expecting an eleventh-hour appeal that – unbeknownst to them – Presiding Judge Sharon Keller refused to allow to be filed after 5 p.m.

That’s according to interviews with two judges, one of whom stayed until 7 p.m. on Sept. 25 and one who left early but was available and said others stayed. They expected Richard’s lawyers to file an appeal based on the U.S. Supreme Court’s decision earlier in the day to consider a Kentucky case challenging the constitutionality of lethal injection.

“There were plenty of judges here, and there were plenty of other personnel here,” said Judge Cathy Cochran, who had to go home early that day but was available. “A number of judges stayed very late that evening, waiting for a filing from the defense attorney.”

Cochran said at the least, a decision should have been made by the full court on whether to accept the appeal: “I would definitely accept anything at any time from someone who was about to be executed.”

Judge Paul Womack said, “All I can tell you is that night I stayed at the court until 7 o’clock in case some late filing came in. I was under the impression we might get something. … It was reasonable to expect an effort would be made with some haste in light of the Supreme Court” action. He added, “It was an important issue. I wanted to be sure to be available in case it was raised.”

Keller didn’t consult the other judges about taking the appeal after 5 p.m. and said she didn’t think she could have reached them. She said, however, that Judge Cheryl Johnson, who was assigned the case, was at the court. Johnson didn’t return a telephone call.

Keller voiced no second thoughts more than a week after her decision.

“You’re asking me whether something different would have happened if we had stayed open,” Keller said, “and I think the question ought to be why didn’t they file something on time? They had all day.”

David Dow, an attorney in the case who runs the Texas Innocence Network at the University of Houston Law Center, called her statement “outrageous,” noting that lawyers had to decide legal strategy and then craft a filing about why the case before the U.S. Supreme Court applied to Richard’s arguments.

The reason behind the request for the delay was a severe computer problem, Dow said. He said he told the court clerk about the problem. Keller said the lawyers didn’t give a reason.

Dow also said the court will not accept a filing by e-mail. If it did, he said, lawyers could have met the 5 p.m. deadline once they beat their computer problem, because printing the filing took extra time. The lawyers needed about another 20 minutes.

Jim Harrington, director of the Texas Civil Rights Project, said he was thinking about filing a complaint with the Texas State Commission on Judicial Conduct about Keller.

“When I saw that, I think I would just describe my reaction as ‘stunningly unconscionable,’ ” Harrington said of her refusal. “There has to be some kind of accountability for this.”

Seana Willing, executive director of the Texas commission, said she isn’t sure Keller could be sanctioned, were a complaint to be filed, because she isn’t aware of anything in the Code of Judicial Conduct that would cover her decision to close the clerk’s office while a death penalty case was pending. She indicated she looked through the code after learning of the dispute but could find “nothing specific” dealing with it.

Keller, who was re-elected last year to a six-year term, and Cochran also said they couldn’t think of a provision that Keller’s action would violate. Judge Mike Keasler, noting he teaches judicial ethics, said he knows of no violation related to such an administrative action by the court’s presiding judge.

Harrington said, “I think you’d take the totality of it and have to make some sort of argument this was a gross miscarriage of justice.”

Lawyers said that without a ruling by the Texas Court of Criminal Appeals on Richard’s appeal, the U.S. Supreme Court couldn’t consider it. The U.S. Supreme Court stayed another man’s execution the same week, after his appeal was denied by the Court of Criminal Appeals.

Even though there may not be a specific provision that Keller violated in the the Texas Code of Judicial Conduct, it does say that the code “is not intended as an exhaustive guide for the conduct of judges. They should also be governed in their judicial and personal conduct by general ethical standards”.

So using that clause, it should be possible for the commission to act, even though Keller’s specific ethical lapse is not listed in the Code of Judicial Conduct.

According to quotes in the Chronicle, it appears that Judges Cochran and Womack believe that Keller was the cause of the problems. If they believe that, then according to the Texas Code of Judicial Conduct they themselves may be ethically obligated to file a complaint against Keller with the Texas Commission on Judicial Conduct.

The code says, “A judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge’s fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action.”

Criticism is rising about Sharon Keller’s unethical decision to refuse to accept a late appeal from Michael Richard’s lawyers. The State Commission on Judicial Conduct should investigate the matter and determine if Keller should be disciplined, including whether she should be removed from office.

An official inquiry is the best way to determine what exactly happened, including whether Sharon Keller should have consulted with the other judges on the CCA, in particular with the one judge who was assigned to handle any late motions in Richard’s case.

Judge Cathy Cochran questioned whether or not justice had been served in the Richard case.

“First off, was justice done in the Richard case? And secondly, will the public perceive that justice was done and agree that justice was done?” Cochran said.

“Our courts should be open to always redress a true wrong, and as speedily as possible. That’s what courts exist for.”

Fertile Ground, in a post titled Action of State Court of Criminal Appeals an embarrassment to all Texans, says “I’d love to be a fly on the wall in the offices of the Texas Court of Criminal Appeals to hear the blame-game conversations resulting from last week’s SNAFU over a request to stay the execution of a convicted murderer. I’m assuming the members of the court have consciences and are discussing the consequences of their inattention to justice”.

A blog called Connecting with the heart of Texas says “due to the lack of better judgement on a Texas Judge’s behalf, our supposed equal distribution of punishment is broken.”

Wolfe’s Musings, who strongly supports the death penalty, says:

Michael Richard was guilty. Michael Richard deserved to die.

So why am I unhappy with this “Hang ‘em high” Republican judge?

The death penalty, like abortion, is one of those contentious moral issues that our country battles over. Many people sincerely believe that giving the State the power to put even guilty people to death is wrong.

Moreover, everyone, I would hope, believes that only the genuinely guilty should be executed.

And finally, justice must not only be done (as I believe it was in Michael Richard’s case), it must be seen to be done.

And I do not believe it was seen to be done.

Texas Chunks of Joy says:

This incident has sent shockwaves of dismay through the state, country and world.

This is the ultimate case of beaurocratic nonsense, and in this case it was a life or death situation. In the case of a death penalty case, EVERY measure possible should be taken to give the defendent the means to appeal. ABSOLUTELY NO court should ever refuse to stay open late to hear a motion of such importance. The Texas Court system needs to slow down, especially in a death case. Communication lines between courts, judges, and lawyers need to be broadened, refined, and put into standard practice.