Sunday, March 01, 2009

Should USDOJ investigate Texas Court of Criminal Appeals' secret pre-vote on unfiled motion?

Rick Casey at the Houston Chronicle adds his own high-powered rumor from the Court of Criminal Appeals, following up on Vince Leibowitz's reporting that some members of the Court want Presiding Judge Sharon Keller to resign before her removal hearing later this month. Casey writes:

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.


Anonymous said...

This is such absolute BS. The state gets to do this--remember, these clowns were gonna file this garbage at the last minute.

Anonymous said...

Was it the Queen of Hearts who also said "Off with their heads!"?

Now there is a sentiment I can support vis a vis the CCA.

Annon, can you clarify what you mean: Who were the clowns and what kinda garbage were they gonna file at the minute?

Anonymous said...

If there was a 5-4 informal vote denying the defendant's motion, then Keller knew about it when she slammed the door at 5:00. She knew that if denied formally, the defendant's attorneys would immediately seek relief from the US Sup. Ct., or from the 5th Circuit, or both. She was probably also thinking that some stay of execution would be granted by one of those federal courts. The best way to cut-off that stay was to shut down access to the CCA.

I think that if this analysis is anywhere correct, it makes Keller's behavior even more reprehensible than I have considered up to now. Before now, she was just being a buttinski , anal-retentive busybody who could make a colorable argument that she was complying with the Court's rules.

But now, if this analysis is accurate, she is in the position of blocking the entire Court from considering the motion and of blocking the defendant from having grounds to approach the federal courts. Reeks of civil rights violation.

I am also starting to think that one or more other CCA Judges were complicit in this.

Friends and Families of Texas Inmates said...

If these allegations are true, which I personally don't see any reason not to believe them. It simply points yet another finger at the complete break down of the system of (un)Justice in the State of Texas.

When the Judge's begin to decide to circumvent the judicial system so they can, (if this is the case) push the decision to another (higher) court, they have failed the citizens of the state as a whole.

Judge Keller's actions warrant a full investigation by the DOJ and an immediate suspension from the bench pending such investigation.

Anonymous said...

"Reeks of civil rights violation."

There is no civil right to have everyone else work late because you waited until the last minute to file something. It wouldn't shock me at all to learn that multiple justices were happy Dow missed the deadline for filing his frivilious motion. The court had rejected similar arguments many times before.

I don't see the problem with the judges taking an informal poll before the motion is actually filed because it gives each judge a heads-up on if they will be part of the opinion or part of the dissent. If you've ever bothered to read a court's ruling you'll know there is a bunch of dicta stuff they can start on before writing the actual meat of the decision.

Filing at the last minute was a stragtegy. Dow hoped the justices would grant a stay of execution to avoid the hassle of making everyone stay late to rule on yet another frivilous last minute motion. Dow probably had this motion 99% done weeks in advance of the execution date and he was just sitting on it until the last minute. When you play with fire soemtimes you get burned. Shame on him.

Also don't forget the victims who were raped and murdered by this monster. What about their civil rights? There was never a question of whether Mr. Richard was innocent of the crime. The appeal was a frivilious claim that lethal injection is cruel and unusual punishment becae "maybe" it hurts if you do it wrong. The US Supreme Court eventaully denied this argument and Mr. Richard would have been dead by now anyway.

Gritsforbreakfast said...

Sid writes: "It wouldn't shock me at all to learn that multiple justices were happy Dow missed the deadline."

Hmmmmm ... would you be "shocked" to learn that Judge Johnson, who was the duty judge assigned to the case, has said she was "angry" Keller didn't inform her and she would have accepted the brief and recommended a stay? But hey ... don't let the facts get in the way of your preconceptions.

And yes, SCOTUS "eventually" denied the Baze claim, but no one could have known that at the time. Two days later SCOTUS stayed a Texas capital sentence pending the Baze ruling. Clearly, as Doran points out, they'd have done the same thing with Richard's case if Keller hadn't taken the opportunity to circumvent them.

Keller and the CCA have been in a years-long pissing match with SCOTUS over death cases and IMO she was just thumbing her nose at SCOTUS as part of that ongoing feud.

Anonymous said...

Sid, which judges do you think were "happy" that Dow missed a filing deadline? And do you know when that deadline was? A date? Time?

Anonymous said...

Not only should the USDOJ investigate but it should make an example of this court if this allegation can be verified. Death is the ultimate punishment and every citizen should expect the courts to perform their duties in an unbiased and professional way. Texas has a deserved reputation for callousness and indifference to any claim asserted by a person who has been convicted by a lower court. The perception is that the underlying conviction was just and any attack is just those "liberal criminal defense attorneys" trying to free a guilty person.
If true, what Keller did was the act of a person who is unfit to ever be empowered to administer justice in any fashion in the courts of any state or the United States. We do not need judges like this.

Anonymous said...

Rev. Charles here:
Interesting editorial in Amarillo Globe News today regarding Judge Keller. Not friendly to the good judge.

Anonymous said...

4:36 said, "The appeal was a frivilious claim that lethal injection is cruel and unusual punishment becae "maybe" it hurts if you do it wrong."

Sometimes, and this is one of them, the apperance of fairness on the part of the judiciary is critical to their credability and the credability of the judicial process. Even if the last minute appeal was in fact "frivilous" and just a strategy, so what. The guy was on the gurney. Even the life of a criminal should be given every consideration before eventaully taking it. Put yourself not only in the victim's shoes (which I understand), but in the condemned mans' shoes as well. Then consider the finality of the act of killing. It is not something to just "process" as if you were deciding the difference between french fries or mashed potatoes. It's the difference between life and death. Such finality deserves the most serious and honest of reviews before any injection occurs.

Anonymous said...

Oddly enough, it seems like this is murder. Yes you can rape a prostitute and you can murder a dying person.Yes the DOJ should investigate Keller, frankly, I have heard from folks close tpthe DOJ ( not in it) that they are in fact investigating her, and here is the rub. If she resigns its tantramount to admitting guilt so she is backed into a corner. This soap opera will go on for a long time.

TxBluesMan said...

Just out of curiosity, how are you going to get past judicial immunity?

Anonymous said...

Judges do not have immunity for violating a person's civil rights under color of law.

I just wrote letters to the Department of Justice and my member of Congress urging the US DOJ to investigate the actions of Sharon Keller and the entire CCA.

Anonymous said...

I'm confused. If there was already an informal vote on the basis of Baze, then Johnson can't claim that she did not know about the possibility of the stay. Which brings up another question, what could Johnson have done if she had known about the late filing? Since the vote was already taken, to me, I don't see what Johnson could have done other than accept the late filing and then issue the 5-4 denial of the stay. It seems that the defendant got his due process because the court took the issue up even in the absence of the stay being filed. In other words, the defendant actually received due consideration on the basis of Baze despite his attorney's failure to file the stay and Keller's unwillingness to keep the court open late. To those that say Keller should have told Johnson about the late filing, maybe she should have. But again the vote was already taken on the issue being raised in the stay. Why keep the court open late if the Baze issue was already decided by the justices?

TxBluesMan said...

Scott, are you speaking of criminal violations or 42 U.S.C. 1983 cases? The reason I ask is that judges are immune from 1983 cases, which is the normal way that this would proceed.

If on the other hand you are talking of a criminal violation, then, no they are not immune.

What specific crime are you looking at? 18 U.S.C. 242 doesn't fit (deprivation of rights must be on account of national origin, race, or color), and most of the civil rights crimes are based on the same language.

A criminal action must be proven beyond a reasonable doubt, and the government would have to show that Michael Richard's being African-American was the reason for the alleged deprivation of rights, not his conviction for murder in the sexual assault and robbery. Otherwise the criminal action fails, and all you have left is the civil action, which Keller has immunity for.

Is there anything in the record that shows that this was racially based?

TxBluesMan said...

The question was for Scott Cobb, not Grits - sorry about any confusion.

Anonymous said...

"last-minute filings in capital cases were and are entirely a function of the court's own rules"

Oh so now you blame the court for the incompetence and gamesmanship of attorneys like Mr. Dow?

I guess next you will blame the Legislature for making rules against rape and murder: it was surely these rules that let Mr. Richards to become a vicious killer!

But seriously, the CCA was forced to change the rules for everybody because of the abuses of Mr. Dow and other clowns like him.

Anonymous said...

Tx and Anon 9:44 raise some interesting questions, which I will address by getting down to basics.

The State of Texas can hire/pay people to kill other people in this State. The State does this through the State's inherent power to punish crimes by inflicting the death penalty. As long as the legal procedures are follwed, not a single person involved in the killing of a prisoner pursuant to a verdict and a judgment duly arrived at can be prosecuted criminally or sued in a civil action: Not the jurors, not the prosecutor, not the trial judge, not the judges of the CCA or the guy who injects the poison into the prisoner. They are all immune because they are acting pursuant to legal procedures, known in the profession as due process of law but frequently slandered by the blood-thirsty good people amongst us as "legal technicalities."

On the other hand, if the applicable legal procedure -- due process -- is not followed, if a peace officer or a judge decides that someone just needs killin because he is slime-ball child rapist, and summarily executes him, they are not immune. If a couple of judges from the CCA go down to Huntsville, flash their authority and order a warden to bring prisoner "X" to them, and when he arrives they shoot him between the eyes, their roles and positions in the State judiciary will not provide the immunity shield. They would have had, at the least, denied prisoner "X" of his civil rights.

What Tx and Anon 9:44 are missing or trying to fog-in, is that there was never a formal vote denying the motion for a stay. There was no appeallable order for Dow to use as the basis for an approach to the SCOTUS. There was no appeallable order because the judges "informally" decided that if a motion was filed, they would deny it. And just to make sure that there would be no formal denial, Keller took it upon herself to circumvent the court's own rules by not allowing the duty judge to deal with the request for late filing. I suspect Keller had some backing from at least a couple of other judges.

Those judges who blocked Dow from having the basis for an approach to the SCOTUS did so NOT by using legal procedures or due process of law, but by abusing their offices. They didn't kill Dow's client, but it is clear that they did, by a shrewed, calculated slouching around and ignoring of due process, deprive him of a formal hearing in their own court, and of a hearing by the SCOTUS.

They accomplished by inaction and duplicity what they would never had attempted to do personally and with physical force: Thet succeeded in putting to death someone they thought should die. And due process be damned. That approach unfortunately has a certain appeal to the police state advocates in Texas. Neither Keller nor any of the other CCA judges will suffer any form of sanctions by Texas agencies, in my opinion. That is why a federal investigation is needed.

Anonymous said...

doran williams said: "Those judges who blocked Dow from having the basis for an approach to the SCOTUS did so [...] by abusing their offices."

Bzzzzzt. Wrong.

If Judge Killer had decided to close the office EARLY then you'd have a valid point.

In other news, CNN is reporting that some states may be dropping the death penalty due to budget overruns. The reason death penalty cases cost more than keeping someone in jail forever is cost of the endless litigation. If we just put them in jail for life without parole it is only cheaper if we don't do the exhaustive investigations required in all death penalty cases. In sort, the cost savings comes from the fact that we are willing to accept that an innocent person serves LWOP than is put to death.

TxBluesMan said...


I understand all of the 'legal technicality' of the death penalty, including that covered in Chapter 9 of the PC...

What my question was, is what crime are you going to charge Keller with? You have to have a criminal offense to charge - otherwise she has judicial immunity to any civil action.

I pointed out that the Federal Civil Rights Statutes (18 U.S.C. 241, et seq) don't fit.

So on what criminal basis do the Feds investigate her?

Or do you want to just make it up as you go?

Anonymous said...

Tx, unlike you, I don't know everything.

Which is why the US Department of Justice, where I assume there are people more knowledgable about such things than you and I put together, can do an---wait for it---INVESTIGATION to determine if there are indictable offenses, such as conspiracy to deprive a person of his civil rights.

My point, poorly made, apparently, is that there is enough stink about this to make one think something is rotten at the CCA.

Anonymous said...

While the SCOTUS clarified for us long ago that "death is different" and those cases get more scrutiny, that doesn't make us more willing to allow rights to be violated in non-death cases. In fact, over recent years the 5th Circuit has extended some of the rights previously applied to death penalty cases to other felonies. Miller v. Dretke, for example, discusses the requirements of mitigation in a non-death felony case. With that, we now see "mitigation experts," previously reserved for felony cases, being appointed and paid by the state in non-death cases. What that means is that costs are going to equal out some, though not all the way. Further, many court appointed lawyers spend money out of pocket, have other attorneys sit with them pro-bono, etc. to provide many of the rights capital defendants have.

Also, to address a previous post, don't feed me this line about writ lawyers having canned briefs. That is where mistakes are made, clients are lost, and the system falls apart. Your brief from last weeks capital murder of a police officer is not and should not be the same as this weeks brief on a double homicide. While some issues may be the same, the briefs and the arguments have to be drafted individually. That makes any decision to decide a case before the arguments have been filed, the reasearch done, and the points made all the more disturbing. Even thought they can't really rely on it because they know it shouldn't have been done in the first place.

Anonymous said...

I would leave it up to the Department of Justice to determine what charges would be appropriate.

According to the USDOJ website, under TITLE 18, U.S.C., SECTION 242 "It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim."



Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

TxBluesMan said...

Scott C and Doran -

You still have to get past the clear standard test of United States v. Lanier, 520 U.S. 259 (1997). This will be a problem considering the ruling in United States v. Chaplin, 54 F.Supp. 926 (S.D. Calif., 1944) which stated:

"It is a principle of our law that no action will lie against a judge of one of our superior courts for a judicial act though it be alleged to have been done maliciously and corruptly..."

Note that except for the above, there is no case law that even references prosecuting a judge for a judicial act - and the closest one to it deals with a prosecutor who failed to release a prisoner on the order of the trial judge. His Sec. 242 prosecution was overturned - see United States v. Hunter, 214 F.2d 356 (5th Cir., 1954), cert. den'd.

You don't have a criminal case and you should focus on what you can actually accomplish, in accordance with the law. The fact that you don't like the actions, doesn't mean you can come in after the fact and create new offenses, where none existed before.

Keller will have to be handled another way.

Anonymous said...

TxBluesMan (if that is your real name),

First you told us that Keller could not be impeached, which was wrong, since any state officer can be impeached. Then you said that she could not be prosecuted under 18 U.S.C. 242 because you claimed that "deprivation of rights must be on account of national origin, race, or color", which I showed you was wrong too from what the Department of Justice's website says. So, you were wrong about that too. Now, you are saying that "It is a principle of our law that no action will lie against a judge of one of our superior courts for a judicial act though it be alleged to have been done maliciously and corruptly..."

Based on your track record of saying things that turn out to be wrong, I am guessing you are probably wrong about that last one too.

TxBluesMan said...

Scott C.,

Just out of curiosity, how successful have you been in ending the death penalty in Texas? It seems to me that you can't even get art into the Capitol...

I don't think that she'll be impeached. Grits has stated he doesn't think that she'll be impeached (unless he's changed his mind in the last couple of days).

I also think that there is a bigger legal obstacle to prosecuting her than to executing the next one up on death row.

But hey, believe what you want...

Anonymous said...

We'll see what happens with impeachment and with any investigation by the Department of Justice. Most people did not think the State Commission on Judicial Conduct would do anything, but they did...

And I did get art into the capitol. So you are wrong on that one too. One legislator took two pieces to his office which ended up creating more attention and getting even more people to see the art.

Anonymous said...

Scott C. Take Tx's reference to the Hunter case, and for "prosecutor" substitute "warden". Then look at a fact situation where the Governor, or a judge, calls the Warden five minutes before the leathel injection is to be administered, and tells the warden that a reprieve or communtation or stay has been granted, and to call off the execution. The Warden says screw you, and goes ahead with the execution. According to Tx, there would be no recourse against the warden. I do find that hard to believe.

TxBluesMan said...

Scott C.,

If getting the art into an office is as good as having it in public view, I'm glad for you.


That disingenuous. Those aren't anywhere close to the same thing.

Anonymous said...

How many times are you going to be wrong, TxBlues?

The art was displayed in public view in the halls of the capitol. Only two pieces were taken by a legislator to his office. The rest of it stayed in the exhibit in public view in the capitol for the entire period it was scheduled.

Anonymous said...

If there is something illegal that went on, then by all means investigate. I hope the investigation is more than talking to a bunch of complaining defense lawyers who see a conspiracy every time a court shuts down their bulls**t arguments.