According to the formal charges by the Commission on Judicial Conduct, Judge Cathy Cochran at 11:29 a.m. e-mailed to Keller and her other colleagues an Internet link to the Kentucky Supreme Court decision that was being appealed to the U.S. Supreme Court.
The document then says that in “early afternoon” the court’s general counsel, Edward Marty, “began drafting a proposed order for the court in anticipation of Mr. Richard’s appeal based on Baze. The Honorable Judge Tom Price drafted a dissenting opinion in anticipation of Mr. Richard’s appeal and circulated the dissent to the other judges.”
What the document omits is that the judges first took an informal vote. I have it on good authority that the tally was 5-4 to turn down Richard’s appeal.
They made up their minds without waiting for the arguments of Richard’s lawyers.
David Dow, the University of Houston Law Center lawyer who headed Richard’s defense team, called the procedure “outrageous.”
“It’s the equivalent of them sticking their fingers in their ears,” he said. The judges may well have felt confident they could anticipate the arguments, and they didn’t want to wait until late in the day to begin taking up the matter.
Yowza!! Deciding motions before they're filed? Sometimes it seems that way, but it's pretty shocking to see it confirmed. Maybe that explains why, according to Vince's source:
at least one justice is fearful that some or all of the Court of Criminal Appeals Justices could be subject to similar judicial conduct complaints as the one now facing Keller simply because the other justices did nothing to stop Keller and did not more closely examine Keller’s actions
Perhaps the concern isn't that other judges "did nothing," but that they actively participated in a process that a) wasn't recorded in official records and b) may not hold up to public scrutiny if "U.S. Attorney General Eric Holder [were] to launch an investigation into whether or not Michael Richard’s’ civil rights were violated."
Have Liebowitz and Casey between them identified the ball the CCA wants most desperately to hide - that the Court had made its decision on Michael Richard's appeal before seeing his argument? Based solely on Vince's source, I didn't understand why judges might fear a civil rights investigation by the Department of Justice. Perhaps in light of Casey's revelation, though, a DOJ review may warranted. At a minimum, says Casey, it will undermine public confidence to confirm:
that the judges acted a bit like the Queen of Hearts in Alice in Wonderland.
“Let the jury consider their verdict,” the King said, for about the twentieth time that day.
“No, no!” said the Queen. “Sentence first — verdict afterwards.”
This news opens ups a whole new can of worms for the embattled Texas Court of Criminal Appeals. The questions facing it might soon become much bigger than whether their Presiding Judge should resign, be impeached or face removal by the Judicial Conduct Commission.
MORE: Before commenters try to make this about late filings by capital defense attorneys, let me emphasize that last-minute filings in capital cases were and are entirely a function of the court's own rules. When they changed them to require final appeals two days prior to execution, Dow and others complied and did that instead. If new filings on the day of execution are inherently bad, there is no one to blame but the CCA which created the rules and the timeline, then (according to Casey) conspired to ignore and circumvent them.
NUTHER UPDATE (3/3): The Stand Down Project has a good roundup of additional, Keller-related coverage.