This story probably won’t get the attention it deserves.  It’s too complicated.  Here’s the simple version:

 

Michael Wayne Richard was executed by lethal injection on Sept. 27, 2007.  Earlier that day, the federal Supreme Court agreed to hear a case involving the claim that Kentucky’s three-drug lethal injection protocol constituted cruel and unusual punishment.  Since Texas uses a similar method of execution, Michael Richard’s attorneys wanted to file a federal writ asking that their client’s execution be stayed until the Kentucky case was decided.  A stay would have allowed Richard’s attorneys  to make an “Atkins claim” or mental retardation defense.  Unfortunately, they couldn’t file at the federal level until all state remedies had been exhausted.  They had two complicated writs to write and only a few hours to get the work done.  That’s where Texas Judge Sharon Keller enters the picture.

 

Sharon Keller was elected to the Texas Court of Criminal Appeals in 1994 and has been Presiding Judge of the TCCA since 2000.  This makes Keller the highest ranking judge in Texas.  The TCCA adopted a set of written Execution Day Procedures in 2007 clearly stipulating that court justices must remain in chambers or in communication with their colleagues until the time of execution.  It was Keller’s responsibility to ensure these procedures were carried out.

 

Keller and the other TCCA justices were well aware that the federal Supreme Court had agreed to hear the Kentucky case; everyone was expecting to receive a writ of certiorari from Richard’s attorneys.  Throughout the day, Judge Keller received frequent updates from defense counsel informing her that they were working as hard as they could but that they might not be able to make the stipulated 5:00 pm filing deadline.

 

Instead of staying in chambers until the issue was decided, Judge Keller decided to head home at 3:45 in the afternoon.  Michael Richard’s attorneys called the TCCA a few minutes before 5:00,  reporting that they were almost ready but would need to brief extension.  TCCA Deputy Clerk Abel Acosta took the call and said he would forward the information to Judge Keller. 

 

Contacted at home, Keller told Acosta to reject the request for an extension.  A few minutes later she received a second call and gave the same answer.  According to Acosta, Keller saw no reason why she should put herself out for lazy lawyers who couldn’t get their work done.

 

In fact, Keller had no idea what Richard’s attorneys were up against or how hard and efficiently they were working.  Her dismissive response was rooted in the anti-defendant, pro-prosecution legal culture for which Texas is infamous. 

 

Michael Wayne Richard was executed by lethal injection at 8:23 that evening.

 

As the State Commission on Judicial Conduct mentioned in their June 10th ruling, this wasn’t Judge Keller’s call to make.  The TCCA’s Execution Day Procedures clearly stipulate that court justices are to remain on the job until the execution is complete or they have issued a stay.  Furthermore, as Presiding Judge, it was Keller’s responsibility to ensure this happened.

 

Because Sharon Keller turned down the request for extension, the rest of the court was kept in the dark.  Justices remained in chambers, fully anticipating that they would be ruling on the Richard’s writ.  When they didn’t hear anything they were surprised.

 

Because the TCCA failed to rule on the Richard’s writ, the Supreme Court was forced to deny the defendant’s federal writ.  The defendant’s state remedies had not been exhausted.

 

After a thorough hearing, the State Commission on Judicial Conduct issued a public warning to Sharon Keller.  “Judge Keller’s conduct on September 25, 2007,” the ruling read, “demonstrated a failure to cooperate with other judges and court officials in the administration of court business, contrary to the aspirational goals set forth in Canon 3C(1) of the Texas code of Judicial Conduct.”   The Commission also found that Keller’s conduct “demonstrated a failure to require court staff under her direction and control to observe the standards of fidelity and diligence that apply to herself . . .”

 

None of that matters now.  On November 11, 2010, a three-member court of review ruled that the State Commission on Judicial Conduct lacked the authority to issue a “public warning”.  They could have issued a “public rebuke” or they could have recommended that Judge Keller be removed from the bench, but those were the only constitutional options available.

 

Part of the problem, I suspect, is that a public rebuke was a bit too strong for the State Commission to stomach: we’re talking about the most prominent jurist in the great state of Texas here.  So they dialed things back a bit, unintentionally creating a legal loophole.

 

Sharon Keller has made it clear that, given the same circumstances, she would make the same decision.

 

Lon Burnam (D-Fort Worth) filed an impeachment motion against Keller in 2009.  Yesterday he told the Fort Worth Star-Telegram that he intends to re-file his motion.

 

Judge Keller has always insisted that her decision in the Richards case was a judicial, not administrative, decision.  This means that her behavior, no matter how egregious, should be covered by the doctrine of absolute immunity. 

Stay tuned.  We haven’t heard the last of this story.