Monday, October 15, 2007

'We close at 5': The "After-Hours Entrance" to Texas Courts

Ben Sargent's cartoon in Sunday's paper pretty much summed up Presiding Judge Sharon Keller's stated policy for accepting death penalty appeals at the Texas Court of Criminal Appeals, don't you think? Once again, the CCA is turning Texas justice into a literal laughingstock.

I happened to speak on Friday with Galveston District Judge Susan Criss, who's running for the Texas Supreme Court, about this incident, and she told me she's interrupted "after hours" all the time, mostly by police and prosecutors. Particularly for search warrants, Criss said, district judges routinely make themselves available day or night to officers of the court on the prosecution side, and she couldn't believe an experienced judge wouldn't extend the same courtesy to the defense, particularly in a capital case, wondering with astonishment,"Wasn't she ever a trial judge?"

As it turns out, the answer is no. Keller practiced sporadically after graduating from law school in 1978, and her main pre-court experience was as an appellate lawyer for the Dallas District Attorney's office from 1987 to 1994 before winning election to the CCA. She spent more of her adult life raising kids at home than she did practicing law before being more or less accidentally elevated to power in the 1994 Republican electoral wave (a good lesson why Democrats should make sure they field candidates for CCA seats in 2008).

So no, Judge Keller was never a trial judge, and in fact her pre-court experience was as limited as it was parochial. Even her colleagues think this time she crossed the line. Most Texas judges work hard, and it's a shame to see the reputation of the entire system tarnished nationally by a single judge's dicta, "We close at 5."

UPDATE: Judge Criss announces in a blog post on Burnt Orange Report that she has officially added her name to the complaint against Judge Keller by the Harris County Criminal Lawyers Association.

MORE: The Waco Tribune Herald says Keller's actions "shamed the state."

35 comments:

Jaime Kenedeño said...

The Texas Judiciary for the Criminal Proceedings / Appeals Due Process is the Criminal Court of Appeals (CCA). This Court believes it is the Supreme Court of Texas and thumbs it's nose at SCOTUS time and time again. At times the CCA speaks of SCOTUS rulings that are contrary to the CCA's own rulings / procedural law / due process as if the CCA audaciously rebukes the Supreme Court of the United States. The AG's actions and Confessions of error so as to benefit from their own error.

Daniel, USMC said...

From the article:

"This execution proceeded because the highest criminal court couldn't be bothered to stay an extra 20 minutes on the night of an execution," said Andrea Keilen, executive director of Texas Defender Service.

What a crock of crap.
This execution proceeded because this scumbag raped and murdered Marguerite Lucille Dixon in her home, then proceeded to commit burglary.

Get your rocks off in a 53yr old woman, shoot her in the head, steal her stuff, but the Court is the bad guy and is the Real Reason for the execution.

Gritsforbreakfast said...

True enough, Daniel, but that doesn't excuse Judge Keller's refusal to perform her constitutionally proscribed judicial duties.

Anonymous said...

Where in the Constitution doe it say Courts are to remain open 24/7? Why did his lawyers wait till the last second? Will the Courts open up for me is my computer crashes? He got what a jury determined he earned.

Gritsforbreakfast said...

Anon @9:14 asks, Where in the Constitution does it say Courts are to remain open 24/7?

Answer: From the Texas Constitution, Article I, Section 13:

"All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."

As for waiting till the last minute, the US Supreme Court created a new cause of appeal on lethal injection at 3 p.m. that afternoon. They were re-working the appeal in light of a just-handed down decision that didn't exist earlier in the day.

Finally, you ask, "Will the Courts open up for me is my computer crashes?" The answer is yes, usually, if you're a prosecutor, anyway.

Daniel, USMC said...

Howdy Grits,

Sorry... it does not say 24/7. It says "due course of law". To me that implies there are operating procedures and guidelines to be met. They were not met.

Sorry, I'm gonna have to go with the nameless one on this.

Gritsforbreakfast said...

"All courts shall be open"

In a case where waiting till tomorrow means the defendant will be dead, I think that provision means exactly what it says.

Anonymous said...

Grits: The "Open Courts Doctrine" is a little bit different than how it reads in this context. He was denied due process, without a doubt, and that violates both his state and federal rights. The court improperly closed, without a doubt. But the Open Courts Doctrine means that people shall have a place (in a broad sense) to have their disputes heard. The most recent Tort Reform violates that, because it prevents claims from being filed. That's a civil matter though.

As for Daniel, well, you're clearly wrong. The guy was guilty, we all know that. But the court was advised that there was a computer error that caused the guy to run late. The court regularly stays open for this sort of thing, and the judge assigned to the case did stay late waiting for the appeal to come. She was surprised when it didn't.

Why did he wait that late if the case was tried years ago? Well, just a few days before the US Supreme Court said that it was going to entertain the "cruel and unusual" aspect of lethal injection and people all over the country were rushing to put stays on cases that were coming up. His was the first in Texas. A subsequent one in Texas has already been stayed. So him waiting was a result of a brand new Supreme Court decision, not because he wanted to surprise anyone with a last minute request, which is also a common thing.


An interesting side note is that veterinarians have stopped using this particular form of euthanasia, because it causes a great deal of pain to the animals. Yes, we know that you believe that rapists and murderers are beneath even animals. So do I. But the issue we need to deal with is whether as a society we should seek to be above those in our society who would do such terrible things. We're better than they are. The way to prove that is to put them down in a humane way. Because the constitution clearly anticipates the legality of the death penalty (no person shall be put in jeopardy of LIFE, liberty or property, etc...), the only issue is how we can do it in a way that makes sure we don't cross that line.

And in any event, being a (former?) Marine, I am sure you hold true to Christian beliefs--God and Country, and all that, so I'm sure that Jesus' teachings are an important part of how you live your life. So why, when it comes to the death penalty, should you abandon your Christianity in favor of rushing to put someone down any way you can?

Anonymous said...

Grist is right, Daniel, usmc is wrong. When the constitution was written - before the industrial revolution - life and law were not governed by a clock.

While the constitution does not say 24/7, it also does not say 9:30 to 5:00!

Gritsforbreakfast said...

"the Open Courts Doctrine means that people shall have a place (in a broad sense) to have their disputes heard"

In this case, Mr. Richard's dispute over whether the new SCOTUS ruling applied to his case was denied a place to be heard, not in a broad sense but in a narrow, specific, and pragmatic one. The doors to the courthouse were closed. You can say it's due process, I suppose, if that's how the case law argues it. IANAL. (I am not a lawyer.) But in its broadest and also narrowest scope I think that means courts won't deny access for legitimate claims to be heard, and in this case that's exactly what happened.

Jaime Kenedeño said...

Excuse me for questioning the honorable gentlemen in this forum but did not the Supreme Court Issue a stop order on all executions; by granting cert to ponder the constitutionality of the Death Penalty by lethal injection.


"the fact the U.S. Supreme Court earlier in the day had accepted a case on the propriety of lethal injection, which had direct implications for Richard's execution.

"SCOTUS agreed to consider whether a form of lethal injection constituted cruel and unusual punishment barred under the Eighth Amendment. On Thursday, the Supreme Court stepped in to halt a planned execution in Texas at the last minute, and though many legal experts interpreted that as a signal for all states to wait for a final ruling on lethal injection before any further executions, Texas officials said they planned to move ahead with more.

Anonymous said...

"Finally, you ask, "Will the Courts open up for me is my computer crashes?" The answer is yes, usually, if you're a prosecutor, anyway."

Rubbish. If you mean in a non-emergency situation, the courthouse closes at 5 pm, and if you have to have something "filed" that day you have to rely on the "mailbox" rule and get your document postmarked by midnight.

In an emergency situation (like this) you make arrangements so that the duty judge (or legal counsel) can accept your filings after hours. It has nothing to do with "the courthouse being open".

As for this case, it looks like TDS screwed up royal. Challenging lethal injection has become a common habeas claim (even before they granted cert in Baze) so that should have been done well in advance of the execution date. Then, after cert was granted, all that would be required is a short statement to the CCA saying that Richard's execution should be stayed because of the cert grant. That could have been done by fax, for Christ's sake. I know they accept afterhours faxes in death cases (I've done it before).

Gritsforbreakfast said...

The key to your statement, 12:14, "in a non-emergency situation."

Since when doesn't "imminent death" qualify as an "emergency"? They attempted to make arrangements. They notified the court at 4:30 and asked for exactly the dispensation you suggested. Keller was not the duty judge, who you say should have made the decision. But she's the one who said "no." She thought it was her call to make. It was not, and she made the wrong one.

All you've described is the concrete procedure that should give real-world meaning to the constitutional mandate that the court be open. Those procedures weren't followed in this case - Keller took it upon herself to let Richard die, and he'd be alive today if she'd notified the duty judge as she (or the counsel) should have.

Daniel, USMC said...

Howdy Nameless One #2,

The way to prove that is to put them down in a humane way.

I disagree. I prove it every day by not raping, killing, thieving, etc. my fellow citizens.

And in any event, being a (former?) Marine, I am sure you hold true to Christian beliefs--God and Country, and all that, so I'm sure that Jesus' teachings are an important part of how you live your life. So why, when it comes to the death penalty, should you abandon your Christianity in favor of rushing to put someone down any way you can?

You would be way off base in your assumption of my religion.

Daniel, USMC said...

Howdy Grits,

Those procedures weren't followed in this case - Keller took it upon herself to let Richard die, and he'd be alive today if she'd notified the duty judge as she (or the counsel) should have.

I with you that she did not follow procedure. I'm wrong on that.

However, lets not transfer his death to her. He'd be alive today if he hadn't raped and murdered a 53yr old.

You keep wanting to assert that his death is her fault and it simply is not so.

Gritsforbreakfast said...

His premature death is her fault, Daniel. I see no way around that.

I'm not transferring blame; Richard did what he did and the law establishes mechanisms to determine the appropriate punishment. Judge Keller, though, is not supposed to act on the same, base impulses as the killer over whose case she's presiding. She's supposed to be the civilized one, the one in the white hat who plays by the rules, not some mean-spirited opportunist willing, indeed almost eager, to snuff out a life, just because she could, as casually as she'd hang up her robe at the end of an (apparently quite short) work day.

We hear many complaints about criminals set free "on a technicality." Michael Richard was executed on one.

Anonymous said...

In this case, Mr. Richard's dispute over whether the new SCOTUS ruling applied to his case was denied a place to be heard, not in a broad sense but in a narrow, specific, and pragmatic one.

Yep. That's a due process argument.

Jaime Kenedeño said...
Excuse me for questioning the honorable gentlemen in this forum but did not the Supreme Court Issue a stop order on all executions


No it did not. The supreme court generally hears one case at a time, and it is the burden of other defendants to cause the states to cease and desist until the issue is decided by the supremes.


I disagree. I prove it every day by not raping, killing, thieving, etc. my fellow citizens.

Would that that were all that is required. All the way through the system we should be a decent society. Judge Killer showed that she cared more about getting her way at any cost than she did about the rule of law.

You would be way off base in your assumption of my religion.

I would be perfectly willing that you have neither religion nor morality. However, I do have morals, and would hope that judges care more about the law than making sure one guy is dead as soon as possible.

Anonymous said...

I also just read the part of your story where Judge Criss is going to run for the Supreme Court.

Judge Criss can barely read. She cannot effectively manage her docket, and she is extremely inefficient and generally not knowledgeable about the law.

I could begrudgingly admit that Criss should be on the CCA instead of Keller, but only because Keller is so bad. Judge Criss in our highest court would be an absolute train wreck.

Daniel, USMC said...

Howdy Grits,

His premature death is her fault, Daniel. I see no way around that.

Just to make sure I follow you.

You're saying his premature death is her fault. Minus her poor judgement... he would have lived a nice long life with no premature death (barring any accidents of course).

And here I was under the, apparently mistaken, impression that his premature death was his own fault by virtue of capital sentence via rape and murder. Silly me... what in the hell was I thinking.

Daniel, USMC said...

Howdy Nameless One,

I would be perfectly willing that you have neither religion nor morality.

Nice. I am not of the Judeo-Christian persuasion so I must be lacking in religion and/or morality. Typical.

However, I do have morals, and would hope that judges care more about the law than making sure one guy is dead as soon as possible.

Was he denied due process? No. He confessed his crime and was duly sentenced.

He was going to die, regardless. The only question, hypothetically, was how... never a when. I am all in favor of making sure that these types of people are as dead as soon as possible.

I don't see that as immoral.

Anonymous said...

I don't see that as immoral.

Well, to an amoral person, I guess it's not.

Not being a Christian myself, I still have morals, and think that you're stretching things too far. Stop being such a whiner. The fact that he would be dead isn't the issue here, it's whether or not the method of death is constitutional and Killer's propensity to let someone die first and fret the details later. And by details, I mean constitutional rights.

Nobody here is defending the murderer. Grow up.

Gritsforbreakfast said...

You know what I mean, Daniel. I didn't say he'd otherwise live forever. If the case had gone through proper channels, TODAY Richard would be alive. Who knows what tomorrow may bring? But Keller decided to end his life early without letting the judicial process fully play out.

To put it in words your Christian critic would understand, Christ admonished us not to worry after tomorrow; "sufficient unto today is the evil thereof." I don't know how the appeals would play out and the likelihood is he'd later be put to death. But it's wrong to deny him access to court for a legitimate grievance, and because someone did, he's dead ... TODAY ... instead of alive. That makes the death "premature," to me, anwyay.

Anonymous said...

So Judge Keller was not a trial judge. Why does this matter? The Court of Criminal Appeals is an appellate court. Judge Keller's background is as an appellate attorney.

A better question is whether Judge Criss has any appellate experience?

Gritsforbreakfast said...

It matters, 9:19, because, as Judge Criss rightly points out, if Keller had been a trial judge she'd understand that a jurist's duties do not terminate when the clock strikes five. She's not flipping burgers and punching a clock, she's a judge with people's lives at stake based on her decisions.

See the discussion above about common practices for "emergency" filings, etc. - the duty judge was waiting and ready to perform her proper role, but Judge Keller declared, "We close at 5." That's not how prosecutors and cops are treated when they ask for a search warrant after hours, as any trial judge would know. That was Judge Criss' point, and IMO it's dead right.

Anonymous said...

as Judge Criss rightly points out, if Keller had been a trial judge she'd understand that a jurist's duties do not terminate when the clock strikes five.

Which is funny, because if you've ever tried a case in her court you know that when the clock strikes five she's long gone.

Gritsforbreakfast said...

Perhaps so, but her point was when the ADA calls after hours to ask for a search warrant, she picks up the phone. There's more to being a judge than sitting in the Big Chair.

Gritsforbreakfast said...

Judge Criss emailed to ask that I post this response to 9:40's allegations about her work hours:

"Too many newspaper reporters, lawyers, jurors and courthouse staff have seen me in the courtroom after 5 pm for your lies to be believed.

"There were newspaper stories all over the country about me bringing a jury in on a Saturday during a murder trial. I have done that more than once.

"During the recent BP trial I kept the jury until 6 pm one day. Another night I stayed with 5 lawyers, 1 mediator and 3 plaintiffs at the courthouse until 9:45 pm working out a settlement. Many reporters , lawyers and courthouse staff have waited with me at the courthouse until very late at night when the jury was deliberating.

"Too many reporters have called me after hours when I was in my chambers until 6, 7 or 8 pm who know better.

"Many courthouse staff and lawyers have received emails about court business written between the hours of 9 pm and 1 am and on the weekends.

"You obviously have an agenda."

Anonymous said...

I have no agenda. I have, however, sat and waited for days waiting for a trial to start. I have also, several times, had trials adjourned almost immediately at 5:00 and been told during trials that "if it was getting done today, it's getting done before 5:00."

I'm sure that for many trials like the BP one (any that would get her name in the paper, in fact), she'd stay open longer. And her point is absolutely correct that courts should stay open if necessary on such an important issue and are certainly willing to sign warrants at any hour, but I would have preferred a more credible source.

My "agenda?" Seeing our Supreme Court with credible Democrats. Not trading bad Republicans for a bad Democrat.

Lawyers and courts all along the gulf coast were complicit in the absurd rulings and verdicts in mass tort litigation that led to the absolute travesty that tort reform has become. In fact, the rest of the state was so worried about how many frivolous suits were out there that they didn't bother to read the fine print on HB 4. As a result, now the legislature can amend the constitution without the regular constitutional process--all thanks to lawyers filing bad cases by the thousands and the judges whose campaigns were financed by them refusing to throw the cases out when called for. Judge Hardin was famous for saying "I know there's no evidence for [a particular cause of action'], but I'm going to let it go to a jury and see what they think."

As for Judge Criss' agenda in asbestos litigation, her father ran a mobile screening unit promising "guaranteed results" to plaintiff's firms and hired well-known doctors who would almost always find something to file suit about. Even in cases that were active in her court where her father actively marketed his promises to line up plaintiffs by the hundreds, she would not recuse herself.

Let's get good Democrats in the court. Not just any Democrat that will run.

Gritsforbreakfast said...

So your beef with Judge Criss is that YOU had to wait in court, she made the tort reformers mad, and you think she sides with plaintiffs too often? And you think that argues against her in a Democratic primary! Friend, you've got another think coming.

I also find it hilarious when an anonymous blog commenter questions the credibility of a sitting judge, particularly who's willing to defend her record under her own name. What chutzpah! Some proud Democrat, taking cheap shots under the veil of anonymity.

Anonymous said...

Grits:

I am by no means alone in my criticism.

If you think I disagree just because "she made tort reformers mad" you misunderstand. The problem is that she and courts all along the coast did such great harm to our courts that the reaction was so far the other way and was every bit as harmful. Instead of being impartial those judges favored plaintiffs. So favorable that the plaintiff's attorneys thought they could recycle all of those same plaintiffs into silica cases and act like they were never harmed in the asbestos cases for which they'd already received money. Thank God federal courts stepped in and called it for what it was--racketeering and fraud. The attorneys are primarily responsible, without a doubt. But the judges allowed it to go on. Again, that's different than "making people mad," that's allowing people to become so alarmed that they went too far the other way, and now the courts are being closed to litigants who have good cases.

Judges have to be the gate keepers. It takes more than just being there on big cases, it means making sure that the system isn't corrupted by one side or the other, resulting in the door being closed to people who are really hurt.

After all, if your child was being operated on and a doctor did something wrong that cost him/her his life, under tort reform your child's life is worth only $250,000. That was part of the "reform" thrown in by the legislature, in response to mass corruption by plaintiff's lawyers, which the courts allowed.

This isn't a Republican/Democrat issue. Everyone but insurance companies is outraged at the result of tort reform, assuming they even know what it was about. Electing a judge to the highest court that was part of the original problem is no better than electing someone who contributed to the subsequent problem. Here, the cure was worse than the disease, but people were rightfully alarmed at the "business as usual" of large plaintiff's firms in Texas. These are not people who fight for justice and the average Joe. These are people who will not take a case unless they get rich.

We're on the same side of just about every issue in your blog. You evidently know Judge Criss, or don't know how things have been done for years or the result of tort reform. Nothing will get you past your personal bias, but read up on the results of tort reform. results that judges along the coast are directly responsible for.

Anonymous said...

And of course, this has come completely off track. Feel free (it's your call, anyway) to delete my comments. I feel that Judge Criss should know that there are critics within her own party. She would be better off in the CCA than the supreme court. She knows much more about criminal matters than civil. I wish I felt like I could put my name out there without concern for how my clients cases would end up in her court if she knew, but I don't think that's the case.

Either way, this has nothing to do with the subject, about which you, she, adn I all agree.

Anonymous said...

This is nitpicking, but I hate to see any grounds for challenging the egregiousness of this situation take hold. OfftheKuff recently posted on this issue, citing a comment Grits made earlier that the SCOTUS Order didn’t issue until 3:00 p.m. the afternoon the motion to stay and brief was due. This is slightly off.

SCOTUS issued cert for the case on September 25, 2007. There were four issues in the original petition. Because the original grant did not limit the scope of review, ostensibly cert was granted for all four issues. On October 3, 2007, SCOTUS issued a misc. order amending the original grant and limiting review to the first three of the four issues. The copy of the order available on-line is not time stamped, but SCOTUSblog had a comment about the order with a link to the document up at 12:59 p.m. EST on the 3rd. This means that the order probably issued earlier that morning, which is consistent with SCOTUS orders. (Other comments at TalkLeft have pointed to the original, September 25th grant of cert as proof that counsel had time to timely brief and file their motion. Those comments all ignore the subsequent, October 3rd amendment.)

I don’t have any first-hand knowledge about this, but defense counsel probably didn’t get notice that the scope of review had been limited until around 3:00 p.m. The amended order more than likely directly affected their arguments and the text of anything else they had already briefed. Even if they had gotten notice earlier in the day, that’s not much time to amend, copy, and file a brief on an issue this important.

Anonymous said...

The granting of the certiorari petition in Baze v. Rees was announced in the morning of September 25th.

The time of day on the amended order limiting review has nothing to do with Richard's execution because that order came out on October 3rd - more than a week later.

Andrew Oh-Willeke said...

The CCA is "an absolute train wreck."

Anonymous said...

Judges are frequently asked to sign warrants or subpoenas after hours, such as a warrant to search the home of a suspect that just got arrested or subpoena an alcohol test from a drunk driver refusing to submit to a breath/blood test. If judges are allowed to be awaken in the middle of the night for such situations, why not keep the courts open a few minutes late for death penalty cases especially when (1) requested an extension before closing, (2) a case from a higher court ruled that day and would affect the case in question, and (3) some judges already intending to work late for a few hours in their courthouse offices? What that judge did was hugely unethical.