Wednesday, August 19, 2009

Sharon Keller on the dock

Texas Court of Criminal Appeals Presiding Judge Sharon Keller was forcefully questioned yesterday about the details of her decision not to accept Michael Richard's last minute appeal on the night of his execution. This exchange from the Austin Statesman gets down to the crux of the issue:

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."

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.

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!


Conner said...

Reading the statesman coverage it is clear that Attorney Dow was lying about computer problems and then he lied more to cover up those lies. Ed Marty also seems like a liar and Justice Keller is maybe a liar and definitely a biatch. She said if she had it to do over again she wouldn't change anything.

Jeff Gamso said...

I don't think the rule conflict is at the heart of anything. Just as it doesn't matter whether David Dow should have done more than he did. The question is whether what Keller did was improper, not whether there were other avenues available to get around what she did - or whether Dow should have acted in a way that would have avoided giving her the chance to be improper.

I'm a criminal defense attorney. I know how to blow smoke. That's what her counsel's doing.

Anonymous said...

I agree with Jeff. The real issue here is one of prerogatives. The person from the court who called her made an error. Under the rules, the proper thing for her to do was to refer to the issue to the judge on duty that day. Instead, she took it upon herself to make the decision. The question isn't where her decision was right or wrong. The question is under the rules, upon what basis did she have any power to make any decision at all when she was not the judge on duty.

Jeff Gamso said...

Actually, I think the merits of her decision are relevant - though they don't resolve all the issues. But that's the merits based on what she knew at the time. Richard's lawyers were asking to keep the clerk's office open for filing. Assuming that she determined to let the office close BECAUSE she knew that there were other mechanisms for filing, that might have been a correct decision. But since the request contains an implicit suggestion that Richard's lawyers didn't know about the alternate means of filing, and since she knew she was dealing with a death penalty appeal shouldn't she have said, "Hey, we're closing, but here's what you can do."

Hook Em Horns said...

Sharon Keller makes my blood run cold. This woman is heartless.

Anonymous said...

Yep, defense attorneys protect their own. Then they whine but the poor representation of indigent defendants on death row!

Anonymous said...

but = about

Subbluti said...

"Hey, we're closing, but here's what you can do."

Suppose the defense filed their appeal on time and this was a prosecutor calling to file a late response. Suppose she helped them file that response and then found the arguments and authority cited in the prosecutor’s response convincing and refused the appeal on that basis… how would you feel about that?

henry young said...

Hey, she stood up for what she believed in, I commend her for that, meaning, she is teaching crazy working career people that we all have a family to go home too and we can’t kill ourselves for work…she will get her respect back in due time. I have faith.