Keller's lawyer says attorneys for the appellant should have gone directly to one of the nine judges, but the rule limiting communications to the clerk pretty much puts the kabosh on that defense. This exchange hones in precisely on the aspect of Keller's decision that I find most troubling. She knew the rules and simply chose not to follow them.
Keller testified that she did not believe the request fell under the court's rules because it was an administrative matter — a question about whether the clerk's office should stay open late — and not a substantive question relating to the merits of Richard's case.
"I think it's a close call, but I think that's right," Keller said.
McKetta then launched into a detailed analysis of the court's execution-day procedures.
"You knew that this (call from Marty) was about tonight's execution?" he asked.
McKetta: "You knew you were not the assigned judge?"
McKetta: "You knew there was an assigned judge?"
Keller also acknowledged that the court's nine judges had been told, via an e-mail from Marty, that Richard's lawyers were preparing an appeal based on that day's news from the U.S. Supreme Court, which accepted a case challenging lethal injection as cruel and unusual punishment.
McKetta also attacked Keller's assertion that she only closed the court clerk's office, not the court, because appellate rules allow lawyers to file briefs with any judge willing to accept them.
McKetta, however, noted that the same appellate rules also state: "Parties and counsel may communicate with the appellate court about a case only through the clerk."
UPDATE: Reacting to this news, a reader emails with this observation and a question:
there's some tension between that rule (Rule 9.6) [the one McKetta cited] and Rule 9.2(a), it seems. The latter says that a document is filed by delivering it to the clerk OR to "a justice or judge of that court who is willing to accept delivery," which would seem to authorize precisely what Rule 9.6 seems, on its face, to forbid. Or to take it the other way, if Rule 9.6 means what it seems to mean [i.e., that all communications must go through the clerk], it seems to make a nullity of Rule 9.2(a)(2). I wonder if there's any caselaw on that?I don't know whether there's caselaw or if this would be a case of first impression, but I agree the apparent conflict between those two rules appears to lie at the heart of this dispute. If Richard's attorneys had tried to communicate ex parte with an individual judge, would it have been rejected based on Rule 9.6? Have there been other historical examples of appeals delivered directly to CCA judges? I just don't know. My sense is that these were very experienced appellate lawyers and if another legal avenue were available they would have taken it. But then, I suppose that's why they're holding a fact finding hearing.
MORE: Kuff rounds up links to the day's testimony and various media accounts, declaring that "there is no doubt in my mind that Judge Sharon Keller would reject the logic that Defendant Sharon Keller is using." ALSO: A reader points out this segment on Democracy Now!