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Tuesday, December 25, 2007

Texas DAs to Blame for High Execution Rate

The New York Times has an article today "Executions Decline Elsewhere, but Texas Holds Steady" that explains why district attorney elections in 2008 in Travis County and Harris County, as well as other Texas counties, are so important in the effort to slow down or stop executions in a flawed Texas capital punishment system that puts innocent people at risk of execution.

Unlike other states where the number of executions have declined, in Texas execution dates are set by aggressive district attorneys asking convicting courts to set the date. If we want to slow down the number of executions in Texas, we need to elect district attorneys who will pledge to impose a moratorium on seeking new death sentences and a moratorium on setting execution dates for existing death sentences.

Adam Liptak writes in the NYT:

This year’s death-penalty bombshells — a federal moratorium, a state abolition and the smallest number of executions in more than a decade — have masked what may be the most significant and lasting development. For the first time in the modern history of the death penalty, more than 60 percent of all American executions took place in Texas.

Over the past three decades, the proportion of executions nationwide performed in Texas has held relatively steady, averaging 37 percent. Only once before, in 1986, has the state accounted for even a slight majority of the executions, and that was in a year with only 18 executions nationwide.

But this year, enthusiasm for executions outside of Texas dropped sharply. Of last year’s 42 executions, 26 were in Texas. The remaining 16 were spread across nine other states, none of which executed more than three people. Many legal experts say that trend is likely to continue.

Indeed, said David R. Dow, a law professor at the University of Houston who has represented death row inmates, the day is not far off when essentially all executions in the United States will take place in Texas.

“The reason that Texas will end up monopolizing executions,” he said, “is because every other state will eliminate it de jure, as New Jersey did, or de facto, as other states have.”
The article goes on to point out that death sentences are declining here in Texas as they have been across the country:
In the 10 years ending in 2004, Texas condemned an average of 34 prisoners each year — about 15 percent of the national total. In the last three years, as the number of death sentences nationwide dropped significantly, from almost 300 in 1998 to about 110 in 2007, the number in Texas has dropped along with it, to 13 — or 12 percent.
The big difference though is that in Texas execution dates are set by convicting courts at the request of district attorneys and in Texas there are some DAs who set lots of execution dates.
“Any sane prosecutor who is involved in capital litigation will really be ambivalent about it,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. He said the families of murder victims suffer needless anguish during what can be decades of litigation and multiple retrials.

“We’re seeing fewer executions,” Mr. Marquis added. “We’re seeing fewer people sentenced to death. People really do question capital punishment. The whole idea of exoneration has really penetrated popular culture.”

As a consequence, Mr. Dieter said, “we’re simply not regularly using the death penalty as a country.”

So while the number of executions in Texas been relatively constant, averaging 23, the state’s share of total executions nationwide has steadily increased: from 32 percent in 2005 to 45 percent in 2006 to 62 percent in 2007.

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Thursday, December 20, 2007

Smoking Gun in Sharon Keller Fiasco: Full Text of Policies She Violated

Texas Moratorium Network submitted a Public Information Request to Sharon Keller to receive a copy of the letter she wrote to the Houston Chronicle's R.G. Ratcliffe in response to Ratcliffe's own PIR. Ratcliffe wrote his story on his PIR on Dec 13 ("Judge in death case violated policies: Keller, who shut out appeal, says new written rules reflect unwritten ones on that day"). He wrote that "Texas Court of Criminal Appeals Presiding Judge Sharon Keller apparently violated court policies for handling death penalty cases when she closed the court clerk's doors on Michael Richard's efforts to file a last-minute appeal before his execution."

Ratcliffe's reporting seems to have uncovered the smoking gun admission that Keller broke the CCA's policies in effect on the day of Richard's execution. He should be given some sort of journalism award for his work. We congratulate him on his idea of asking for the policies in effect on Sept 25. His article left us wanting to see the entire text of the policies ourselves, so we submitted our own PIR.

Reading the entire text of the policies makes it very clear that Keller violated the rules by not contacting the assigned duty judge about the request by Richard's lawyers to file a late appeal. The consequences of her action should be for her to resign immediately or if she lacks the integrity to resign on her own, then the State Commission on Judicial Conduct should compel her to resign.

We will send a copy to the State Commission on Judicial Conduct of Keller's letter to Ratcliffe and of the document "Execution-day Procedures". We hope the Commission has already obtained a copy, but just in case, we will send them our copy, along with another 250 or so new names of people who have signed our judicial complaint against Keller since we first submitted about 1600 names on Nov 16.

Read the policies and judge for yourselves if she violated them. Here is a link to a pdf of the document we received from the Court.

Execution-day Procedures

A designated judge will be assigned to be in charge of each scheduled execution. Generally, judges will be assigned in rotating seniority order by the general counsel. Exceptions in order of assignment will be made for prior involvement in the death-row inmate's case as trial judge, prosecutor, or defense counsel, or for recusal. Judges may also trade assignments, with notice to all other judges and general counsel, for other good cause such as anticipated absence from court on the day of execution. Unless the Court has been informed by defense counsel that no pleadings will be filed, or pleadings have been filed and ruled on, general counsel shall be present at the Court on the date of the scheduled execution until the time of execution has passed. The assigned judge shall be present at the Court, or immediately available, on the date of the scheduled execution until the time of execution has passed. Support staff may be requested to remain, also, as needed.

All communications regarding the scheduled execution shall first be referred to the assigned judge. The term “communications” includes pleadings, telephone calls, faxes, emails, and any other means of communication with the Court. The assigned judge may call a special conference or gather votes by telephone, email, fax, or other form of communication.

If the communication includes a request for stay of execution, the assigned judge shall contact, by any reasonable means, the other members of the Court and request a vote on the motion to stay. Non-assigned judges will provide to the assigned judge an adequate means of contact. "Reasonable means" includes calling a special conference and contact by electronic communication.


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Info on First Two Travis County DA Candidates to File

We are going to be very active in the race for Travis County District Attorney, as we attempt to ensure that the voters of Travis County elect a district attorney who will pledge not to seek the death penalty at least during the initial four-year term in office. So far, two people have officially filed for district attorney, Gary Cobb and Rick Reed. We haven't yet seen if they have put up websites yet, but they provided contact information when they filed. We also don't yet know any of their positions, but we will post more information as we learn it. We encourage people to send in any information they have on any announced or possible candidates in the race.

Here is Gary Cobb's contact information:

P.O. Box 142416, Austin, TX 78714
512-854-9400 (O) 512-899-1765 (H)


Here is Rick Reed's contact information:

512-854-9400 (O) 512-292-0313 (H)
11614 Anatole Court, Austin, TX 78748

Here is what the Austin American-Statesman said about the two in a recent profile on possible candidates in the race.


Rick Reed, 52

The first candidate to file for district attorney, submitting the paperwork Friday after Earle's announcement.

Reed grew up in Dallas and attended UT before graduating from the Southern Methodist University School of Law. Reed worked as a Dallas County felony prosecutor from 1986 until 1998, when he ran for district attorney. After losing that race, Reed went to work for Earle.

He is one of the lawyers who has worked on the money-laundering case against former U.S. House Majority Leader Tom DeLay.

If elected district attorney, Reed said, he wants to expand the use of drug courts to divert more people charged with possession charges into treatment, freeing up more prosecutors for other crimes. He also wants to decentralize decision-making in the office, giving front-line prosecutors more discretion over their cases.

The Austin Political Report says that Reed "once served under legendary Dallas DAs Henry Wade and John Vance." Dallas County has been exonerating people regularly who were wrongfully prosecuted under Wade and Vance, so one question with his candidacy was what did he learn up there in Dallas under those two former DA's and did he have a role in any cases where the person was wrongfully convicted.

Gary Cobb, 46

Grew up in Mississippi before attending the University of Texas School of Law from 1983 to 1986. He's been a prosecutor at the Travis County district attorney's office since 1990.

Among his many prosecutions, Cobb got a life sentence against George Weldon Smith, a Del Valle youth coach, for sexually abusing a young boy for four years. He also prosecuted Celeste Beard, who was sentenced to life for plotting to have her wealthy husband killed for his money.

Cobb said he would encourage prosecutors to get involved in the community to build trust.

"Ronnie Earle has established a tradition of responding to the community," Cobb said. "We need to be more pro-active."

Over on the Austin Political Report, a commenter said that Cobb "was the chief prosecutor against Lacresha Murray, an 11 year old girl charged with murder. Cobb used a coerced confession to convict. The case was later thrown out by a Republican appeals court. Murray is now suing in federal court. You can read Bob Herbert’s article in 11.22.98 NYT. My bet is Travis County voters aren’t going to forget that case. We insist that our elected officials be fair, especially when kids are involved."

We don't know if that commenter had it right about Cobb's role in the Murray case, but when we meet him we will ask him what his role in that case was.

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Wednesday, December 19, 2007

Time for Travis County to End Another Old South Legacy

CNN's headline says "Executions drop in '07 as states rethink death penalty". According to the article, 42 people were executed in 2007, a 13 year low. The drop is in part due due to the Baze decision that was accepted by the U.S. Supreme Court. There was only one execution after the Court accepted that case, Michael Richard was the last person executed this year on Sept 25, although his execution likely could have been halted as well, if Sharon Keller had not said "We close at 5".

"Texas continues to lead the nation, with 62 percent of executions nationwide this year. Overall, 86 percent this year were in the South", says the report.

The question for Travis County voters in the upcoming election for District Attorney is whether they are ready to turn the page on this legacy of the Old South and elect a District Attorney who will pledge not to seek the death penalty. Texas Moratorium Network has submitted a Public Information Request to Ronnie Earle's office asking for the number of death penalty prosecutions and convictions during his tenure. I expect to see a similar pattern to the national numbers showing a decline. The next district attorney should pledge to reduce the number of new death sentences from Travis County to zero and instead use life without the possibility of parole as an alternative.

In other death penalty news:

In 2007, the Texas Legislature expanded the death penalty to apply to second offenses of child sexual assault. Many people said that bill would probably be found to be unconstitutional. We will soon find out if they were right. "The U.S. Supreme Court on January 4 will decide whether to review an appeal from Louisiana inmate Patrick Kennedy, sentenced to death in 2003 for raping his 8-year-old stepdaughter." says CNN.

The people of Texas are probably tired of seeing Texas legislators expand capital punishment while refusing to expand access to health care or higher education. Executing more people may have been high on the agenda of the Republicans who took control of the Texas House in 2003, but if the Democrats take back control in 2008, you can expect to see more action on health care and education and no more time wasted passing unconstitutional bills expanding the death penalty.

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Barrett Wins Bodes Well for Democrats to Win Big Gains in 2008

The upset by Democrat Dan Barrett yesterday in the race for a Texas House seat from a Fort Worth district that usually votes Republican is more evidence that 2008 is going to be a big year for Democrats, who could finally break the all-Republican hold on the Texas Court of Criminals Appeals, if they field some good candidates.

If well-qualified Democrats run for the three Texas Court of Criminal Appeals seats that are on the ballot in 2008, they might all win. This is the "Worst Court in Texas" according to Texas Monthly; it should be the easiest statewide race for a Democrat to win.

Where are the candidates? It is time to show yourselves.

Matt Glazer wrote a post on BOR about "What Dan Barrett's Victory Means for Texas", Excerpt:

In 2006, Democrats won 6 seats plus Donna Howard's special election. In 2007 we welcomed Kirk England to the Democratic Party and now we have Dan Barrett as member of our caucus as well. We've not even yet had a single vote cast the 2008 primaries, and there are now 71 Democrats in Texas House- a stunning and speedy reversal based on the same map that was drawn to have only 42 Democratic seats.

Yesterday's election in Fort Worth was a runoff between a Democrat and multiple Republicans even though only one Republican in name was on the ballot. It was a race between the Democrat fighting for fair representation and the Republican Speaker and his possible enabler. Dan Barrett vs. Tom Craddick and his crony Mark Shelton.

House District 97 was not drawn to be a Democratic seat. In 2006, Barrett had taken on the recently retired Anna Mowery and claimed only 40.82% of the vote. Tarrant County on the whole only gave Barbara Radnofsky, the U.S. Senate nominee, 34.80%, Chris Bell 31.07% in his bid for Governor, and the bell weather Texas Supreme Court candidate Bill Moody 42.79% of the vote. The Republican's should have won this election based on the poor democratic performance index (DPI) of the district alone. During the special election yesterday, Barrett won with 52.2% of the vote.

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Tuesday, December 18, 2007

New Jersey Abolishes Death Penalty, Inspires Campaign for de facto Abolition in Travis County

There is a developing campaign in Austin to use the upcoming election of a new Travis County District Attorney to elect a district attorney who will pledge never to seek the death penalty and to use life without parole as an alternative. The current DA, Ronnie Earle, has just announced his retirement after 30 years in office.

Read more from Scott Cobb on Burnt Orange Report: "Next Travis County DA Should Take the Death Penalty Off the Table":

The next DA in Travis County should reflect how the Travis County community's feelings on the death penalty have evolved since 1976 and pledge that the death penalty is off the table within Travis County.

Last October when Paul Burka first reported that Earle may be retiring, Burka wrote that "a DA is supposed to be the conscience of the community", which brings up the issue of to what extent the conscience of the community in Travis County has changed since 1976.

I expect it has changed enough that any person who seeks the Democratic nomination for Travis County District Attorney in 2008 is going to have to seek the support of voters within a community whose conscience does not include support for the Texas death penalty. Of course, there are voters here who support the death penalty in theory, but there are many more whose theoretical support is trumped by their disgust with how the death penalty operates in Texas. And in Travis County, there is also a substantial bloc of voters who reject the death penalty both in theory and as it is practiced.


New Jersey Abolishes Death Penalty, Sparks Talks Of Change In Texas
KXAN, Dec. 18, 2007

Link

Austin - New Jersey became the first state in four decades to abolish the death penalty on Monday. Governor Jon Corzine signed the measure Monday, replacing executions with life in prison without parole.

"Now make no mistake," Corzine said. "By this action, society is not forgiving these heinous crimes or acts that have caused immeasurable pain to these families and brought fear to society. The perpetrators of these actions deserve absolutely no sympathy and the criminals deserve the strictest punishment that can be imposed, without imposing death."

Among the eight men on death row whose lives were spared by Monday's action is the man whose murder of a 7-year-old girl inspired "Megan's Law," which helps people keep track of sex offenders living in their towns.

At least five other states are considering abolishing the death sentence. Texas is not among them.

Death penalty opponents in Austin believe Monday's decision to abolish the death sentence in New Jersey is another indication that the tide is turning.

An announcement out of the Criminal Justice Complex last week seems to be rallying death penalty opponents in Travis County.

For the first time in three decades, a new district attorney will be prosecuting cases here.

"The death penalty system is broken in Texas, and we as voters in Travis County have an opportunity to say, 'Because it's broken, we're not going to use it,'" said Scott Cobb, president of the Texas Moratorium Network.

Cobb said the announcement that District Attorney Ronnie Earle will not seek re-election was tantamount to a rallying cry for death penalty opponents in Travis County, who are now determined to hit the campaign trail.

"We think the people of Travis County are ready to abolish the death penalty in Travis County and that's our challenge to whoever runs for District Attorney," Cobb said.

Death penalty proponents, such as the group Justice For All, believe abolishing the death penalty would lead to higher murder rates in Texas.

There are 371 people on death row in Texas.

Seven inmates scheduled to be executed this year received last-minute stays due to concerns about their possible innocence, the fairness of their trials or issues related to the Supreme Court's review of lethal injection.

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Sunday, December 16, 2007

Texas Judge "Killer" Keller Admits Justice Does Not "Close at 5"

A commenter here has provided a link to a copy of Sharon Keller's request to dismiss the lawsuit against her filed by Michael Richard's wife.

Keller claims in the motion that there was no reason for her to order the court to stay open because other judges on the CCA could have been contacted directly, whether the clerk's office was open or closed. She does not explain in the motion to dismiss, however, why she did not tell the court's clerk to tell Richard's lawyers to contact the duty judge or why she did not tell the clerk to inform the duty judge that the lawyers wanted to submit an appeal.

Keller told the lawyers for Richard "We close at 5". This was a lie, because according to her own admission, the duty judge and any judge on the CCA can accept after hours submissions. It is also a lie because she acknowledges in her motion to dismiss that she had the authority to keep the clerk's office open after 5, but she chose not to.

A truthful statement would have been, "We close at 5, but I have the authority as presiding judge to keep the court open past five in order to accept your appeal or you may just contact the duty judge on this case who is Judge Cheryl Johnson and here is her phone number".

In the course of arguing that the lawsuit should be dismissed because she was acting in her official capacity, Keller admits that she has the authority as presiding judge to keep the court's clerks open after 5pm. Excerpt:

Texas statutory law provides that the normal office hours of a state agency are from 8 a.m. to 5 p.m., Monday through Friday. It also authorizes, but does not require, the chief administrator of a state agency to keep offices open during other hours if the administrator “considers it necessary or advisable.” Thus, under Texas Law, the CCA closes at 5 p.m. unless Judge Keller exercises her discretion in her capacity as Presiding Judge to keep the court open.
and
Only Presiding Judge Keller had the authority to keep the clerk’s office open beyond the state-mandated hours. However, as discussed above, she was under no duty or obligation to do so
since any CCA judge could have accepted the filing. Richard did not need the clerk’s office to remain open because he could file his motion with the judges that Plaintiff admits remained at the CCA past 5 p.m.
In response to a request for public information to her from the Houston Chronicle, Keller admits that she broke the unwritten rules of the court. For that breach of the rules, she should be removed from office.

Excerpt from Chronicle: 

In its public information request, the Chronicle asked for the state appeals court procedures for handling death penalty cases on the day of Richard's execution.


"No written policies regarding those matters existed on that date (Sept. 25)," Keller wrote. "Subsequent to that date, the court reduced to writing the unwritten policies that did exist on that date."


The written policy the court later adopted said the judge assigned to the case should stay on duty on the day of an execution until the execution occurs. The policy also said "all communications regarding the scheduled execution shall first be referred to the assigned judge."

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Sharon Keller steps in it again: Will she be held accountable?

It was a big week in the fight to hold Keller responsible for her unethical behavior in the "We close at 5" fiasco. The Houston Chronicle wrote two news articles with new information from Keller herself and today Rick Casey comments on the situation in his column.

Casey's column today "Death judge broke rules" asks if Sharon Keller will be held accountable. The evidence is mounting that Keller broke the rules of her court and so she certainly should be punished. In fact, since her behavior resulted in the death of a person, which can not be reversed, she should be sanctioned with the most severe punishment, including removal from office.

Casey's column is in response to an earlier article by R.G. Ratcliffe on Dec 13th in the Chronicle (Judge in death case violated policies") that reported that she admits there was an unwritten policy and she broke it.

Excerpt from Casey's Sunday column:

Yet in response to public information requests from the Houston Chronicle and at least two lawyers, Keller herself disclosed a contrary policy that was in place on that day, though it wasn't set down in writing until later.

The policy required that one of the court's nine judges "be assigned to be in charge of each scheduled execution."

"Unless the Court has been informed by defense counsel that no pleadings will be filed, or pleadings have been filed and ruled on," both that judge and the court's general counsel must be available "until the time of execution has passed."

In other words, unless the condemned person's lawyers notified them otherwise, the court's policy was to assume there would be last-minute appeals and to be ready to receive them.

Part of the policy was carried out. Judge Cheryl Johnson was assigned to be the judge in charge, and made herself available to be contacted.

The policy also required that "all communications regarding the scheduled execution shall first be referred to the assigned judge." That specifically includes "telephone calls."

Johnson expressed anger that she was not alerted of the attempt to appeal. By the time she learned of it from media accounts, Richard was dead.
In another article on Dec 14 in the Chronicle "Judge wants wrongful death lawsuit dropped", reporter Lisa Sandberg reported on a motion by Keller to dismiss a wrongful death lawsuit against her. Keller's new story is that Richard's lawyers could have contacted any other of the judges on the court and submitted their appeal. But instead of her telling them that they could contact another judge, such as the duty judge, she instructed her clerk to tell them "We close at 5". That is where she broke the policy. She should have told the clerk to inform the duty judge of their request to submit an appeal.

Excerpt from Sandberg's article:
But in a motion, Keller said Texas law "provides a clear and unambiguous avenue for litigants to file documents with the (Court of Criminal Appeals) directly through any of its judges, so Richard did not need the CCA clerk's office to stay open after hours to file his motion."

This is the first time Keller has claimed Richard's lawyers could have directly gone to other judges on the court. She previously has tried to shift blame to Richard's lawyers by saying they had all day to file.

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Friday, December 14, 2007

Next Travis County DA Should Take the Death Penalty Off the Table

Travis County District Attorney Ronnie Earle is retiring. He was first elected in 1976. The next DA in Travis County should reflect how the Travis County community's feelings on the death penalty have evolved since 1976 and pledge that the death penalty is off the table within Travis County.

Last October when Paul Burka first reported that Earle may be retiring, Burka wrote that "a DA is supposed to be the conscience of the community", which brings up the issue of to what extent the conscience of the community in Travis County has changed since 1976.

I expect it has changed enough that any person who seeks the Democratic nomination for Travis County District Attorney in 2008 is going to have to seek the support of voters within a community whose conscience does not include support for the Texas death penalty. Of course, there are voters here who support the death penalty in theory, but there are many more whose theoretical support is trumped by their disgust with how the death penalty operates in Texas. And in Travis County, there is also a substantial bloc of voters who reject the death penalty both in theory and as it is practiced.

I am certain that a big majority of Democratic voters, if not all voters, in Travis County believe that the death penalty system in Texas is broken.

There is a precedent already in Texas for a district attorney to declare a county-wide moratorium on death penalty prosecutions. The Nueces County District Attorney’s Office put a hold on seeking the death penalty in capital murder cases last October in light of the U.S. Supreme Court’s decision to hear a case that questions whether lethal injection is cruel and unusual punishment.

But I expect the people of Travis County know that the problems with the death penalty system are bigger and deeper than just the issue of how a lethal injection is administered. The Texas death penalty system is riddled with problems from start to finish, from the initial investigation and arrest, the process used to decide whether to seek the death penalty, the actual prosecution and defense of a capital trial, the appeals process and the manner in which an execution is finally carried out.

The most fundamental problem is perhaps an inability to distinguish with certainty whether a person is guilty or innocent. If a system can not ensure that the guilty are convicted and the innocent protected, then the death penalty should be off the table. The need for local prosecutors to impose a moratorium on death penalty prosecutions is particularly great because of the failure of state leaders to enact a moratorium and create a commission to study the death penalty. In fact, the state legislature would not even create an innocence commission.

I am sure that the people of Travis County are very comfortable with life without parole as an alternative to the death penalty. Any candidate who seeks to become district attorney in Travis County should pledge not to seek the death penalty. Life without parole is a valid alternative. In a contested Democratic primary in Travis County, a candidate who acknowledges that the death penalty system in Texas is riddled with problems and puts innocent people at risk of execution is likely to be rewarded with votes.

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Thursday, December 13, 2007

Sharon Keller admits she violated unwritten rules of Texas Court of Criminal Appeals

New reporting from the Houston Chronicle's R.G. Ratcliffe ("Judge in death case violated policies") includes an admission from the unethical presiding judge of the Texas Court of Criminal Appeals, Sharon Keller, that she violated the unwritten rules of the court on the day she said "We close at 5" and refused to accept an appeal from a man set for execution that day.

The rules have since been written down to prevent a similar injustice, but the unwritten rules in effect on Sept 25 were that Keller should have referred the request from Michael Richard's lawyers to keep the court open 20 minutes after 5 pm to the duty judge, but instead she decided on her own to close the court and refuse the appeal. The policy, which has since been written down, is that "all communications regarding the scheduled execution shall first be referred to the assigned judge."

Now that has admitted wrongdoing, there is no doubt that Sharon Keller should accept the demands on her to resign. More than 1,800 people have signed a judicial complaint against her with the State Commission on Judicial Conduct.

Click here to watch an excellent video report of a protest against Keller on Nov 16 from FOX 7 News. We kept the court open late that day accepting letters from people urging Keller to resign.

Excerpt from Houston Chronicle:

In response to a public information request from the Houston Chronicle, Keller said in a letter that no written court procedures existed Sept. 25, the day of Richard's execution. However, she said the new written rules reflected the court's unwritten policies on that day.

Keller was not the judge assigned to handle Richard's appeal when she decided to close the clerk's office so that Richard's lawyers could not file a late appeal.

Judge Cheryl Johnson was in charge of Richard's case on the day of his execution, but did not learn of his lawyers' attempts to file for a stay of execution until the day after his death.
and
In its public information request, the Chronicle asked for the state appeals court procedures for handling death penalty cases on the day of Richard's execution.

"No written policies regarding those matters existed on that date (Sept. 25)," Keller wrote. "Subsequent to that date, the court reduced to writing the unwritten policies that did exist on that date."

The written policy the court later adopted said the judge assigned to the case should stay on duty on the day of an execution until the execution occurs. The policy also said "all communications regarding the scheduled execution shall first be referred to the assigned judge."
SharonKiller.com

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Good Candidates Needed for the Texas Court of Criminal Appeals

We need to find some good candidates for the discredited Texas Court of Criminal Appeals. In 2004, Texas Monthly called the all-Republican Texas Court of Criminal Appeals the "Worst Court in Texas" in a bold headline on the cover of the magazine. In this month's magazine, Texas Monthly says that Sharon Keller, the CCA's Presiding Judge, should be impeached for her unethical behavior on Sept 25, when she said "We close at 5" and refused to accept an appeal from a man set for execution that night. Excerpt:

When a man’s life is on the line—to say nothing of the U.S. Constitution—our top criminal judge should behave like one: with prudence, fairness, and a calm hand. It’s time for Keller to go. If the commission doesn’t act quickly, we’ll have to wait until January 2009, when the Legislature—which has the power to oust high judges—reconvenes, or worse, 2012, when Keller is up for reelection. The fact is, we need to do it now. Impeach Sharon Keller.


Keller is not on the ballot in 2008, but that does not mean the Court should get a pass.

Grits for Breakfast has written extensively on the need for candidates to step up now and run for the CCA:
Of the incumbents who're up next go-round, at least Tom Price has the good sense to call a spade a spade, vocally declaring some time ago that the court's radical pro-prosecution precedents made them a "laughingtsock" around the nation's legal community. And Cathy Cochran finally came out to publicly criticize the Presiding Judge over the recent "We close at 5" debacle. The other judge up next year, Paul Womack, probably should be targeted before those two, but really IMO it's time to begin a comprehensive infusion of fresh blood.
There are three seats up and Democrats should find strong candidates for all of them. Both Scott Henson at Grits and I have separately asked some people to run, but so far no one has said yes. Now, there are only three weeks left before the filing deadline. We need to find someone before it is too late.

A Democrat can win election to the CCA in 2008 for two main reasons 1) the national political environment is favorable to the Democrats and a winning Democratic presidential candidate could have an impact on lower ballot races and 2) the "laughingstock" reputation of the CCA is likely to cause many editorial boards and other organizations to endorse a well-qualified challenger to the Republican incumbents on the ballot.

The key here is "well-qualified". In 2006, some media outlets, including the Dallas Morning News, wanted to endorse someone other than the Republican incumbents, but they did not think the challengers were up to the task in 2006. Excerpt from the DMN editorial:
When it comes to uninspiring court contests, the statewide Court of Criminal Appeals pretty much takes the cake.

Three Republican incumbents, none of whom deserves to be a shoo-in for re-election. One Democrat and two Libertarians, none of whom could be bothered to show up for an interview – or, in the case of the Democrat, complete a questionnaire.
Keller is not on the ballot, but she can be an issue in the election. She only won in 1994 anyhow because of down-ballot pull on the heels of the sweeping national Republican victory that year. It is time for the tables to turn.

I am writing this post to ask the blogging community to help find good candidates for the CCA. Help us find a practicing lawyer, a law professor, or a judge whom we can interest in running for the CCA.

Please use the comments to suggest people the Texas Democratic Party should contact about running for the court. Or email names to me at scottcobb99 (at) gmail.com and I will pass them along to the state party.

Candidates for the court are required to submit 50 signatures from each of Texas' 14 appellate districts, so even after a candidate is found, the blogging community should be ready to help the candidates get those signatures. I am ready to help.

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Sunday, December 02, 2007

Star Telegram Questions Basic Fairness of Texas Death Penalty

In a long editorial today, the Fort Worth Star Telegram argues that Texas should use the opportunity of the current de facto moratorium on executions to conduct a comprehensive examination of the death penalty in Texas. The question is where is the political leadership by Perry, Craddick, Dewhurst, Whitmire and Pena. They should set up an interim committee to study the system and make recommendations for the reforms to the next session of the Legislature in 2009.

From the Star Telegram:

Despite undeniable popular support for capital punishment, enough doubts surround its basic fairness that Texas should conduct a full re-evaluation of who is subjected to it, what circumstances warrant it and how it's delivered. And the current hiatus offers the opportunity.

Texas had no problem taking the lead on execution by lethal injection 25 years ago. If Texas wants to continue using a punishment from which there's no return, this state should lead the way in repairing the glaring flaws in its administration.

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Friday, November 30, 2007

Thursday, November 29, 2007

Gov Mike Huckabee, Jesus and the Death Penalty

In tonight's CNN/YouTube debate, Huckabee, who is an ordained Southern Baptist minister, dodged the question, "What would Jesus do?" and made it into a joke about how Jesus didn't have to run for public office. Hey, Mike, don't have much moral courage, do you?

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Saturday, November 24, 2007

Texas Monthly: Impeach Sharon Keller

Texas Monthly's Mike Hall editorializes in the December issue that it's time for Keller to go, even using the word "impeach".

"Motion to Dismiss: It is time for Sharon Keller to go"

Four hours before convicted murderer Michael Richard was executed by the State of Texas on September 25, his lawyers notified the Court of Criminal Appeals that, because of computer problems, his appeal wouldn’t be filed until fifteen to thirty minutes after 5 p.m.—the hour at which the court’s offices closed. This was no ordinary appeal: That very morning, the U.S. Supreme Court had agreed to review the constitutionality of lethal injection as a method of execution.

Still, Sharon Keller, the CCA’s presiding judge, slammed the door shut on Richard’s life. “We close at five,” she said. Keller’s fellow judges publicly expressed their anger at her actions, as did several hundred defense lawyers and judges, who signed complaints filed with the State Commission on Judicial Conduct to discipline her and remove her from the bench. (Responding to the outcry, on November 6 the CCA announced a new “e-mail filing system for urgent pleadings.”) This is hardly the first time Keller has sacrificed fairness for toughness. In 1998, in her determination to keep convicted rapist Roy Criner in prison, she turned a blind eye to DNA evidence that indicated he hadn’t committed the crime; fellow judge Tom Price said the decision made the Texas court a “national laughingstock.” Well, no one is laughing now. When a man’s life is on the line—to say nothing of the U.S. Constitution—our top criminal judge should behave like one: with prudence, fairness, and a calm hand. It’s time for Keller to go. If the commission doesn’t act quickly, we’ll have to wait until January 2009, when the Legislature—which has the power to oust high judges—reconvenes, or worse, 2012, when Keller is up for reelection. The fact is, we need to do it now. Impeach Sharon Keller.

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Friday, November 23, 2007

More details emerge on Sept 25 Keller fiasco

Texas Lawyer writer Miriam Rozen has a long article with lots of new details about what happened on Sept 25 when Sharon Keller said, "We close at 5" and refused to allow the CCA to remain open to accept an appeal from Michael Richard. The article does not provide any new information that disputes earlier accounts from Keller herself that she said "We close at 5". The article also confirms that Gov Perry could have halted the execution but refused to act, even after being told that the CCA had refused to stay open.

We have already turned in a complaint against Sharon Keller to the State Commission on Judicial Conduct that was signed by around 1600 people. Since we turned it in, another 200 people have signed on to the complaint. We will deliver the new names to the Commission sometime in December.

You can still sign the complaint
.

Out of Time: The Last-Day Legal Battle Over the Execution of Michael Wayne Richard

Miriam Rozen
Texas Lawyer
11-19-2007

Around 8:20 on the evening of Sept. 25, shortly before the state of Texas executed Michael Wayne Richard, the convicted murderer uttered his last words: “I guess this is it.”

But Richard’s death, rather than bringing closure, created a controversy that continues with no end in sight — a controversy involving the presiding judge of the Texas Court of Criminal Appeals, the Texas Office of the Attorney General, the Office of the Governor and lawyers at the nonprofit Texas Defender Service.

Questions have arisen because Richard — convicted in 1987 of capital murder — was the last man in the nation executed following the U.S. Supreme Court’s Sept. 25 decision to grant writs of certiorari in Baze v. Rees.

In Baze, two condemned men from Kentucky allege that the trio of chemicals used in lethal injections in Kentucky constitute cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution. Texas and dozens of other states use the same chemicals in lethal injections.

Richard’s execution date was set for Sept. 25, with his death warrant in effect from 6 p.m. — just 10 hours after the high court granted cert in Baze — to midnight. The events of that day — the computer problems that delayed Richard’s defense lawyers’ filings, the CCA’s 5 p.m. closure of its clerk’s office and the Supreme Court’s denial of Richard’s final stay motion — have prompted plenty of finger-pointing. But the story of what happened that day, told from the perspective of key players, shows that Texas executed a man who, given one more day, likely could have persuaded a court to postpone his death.

No one postponed the violent death of Marguerite Lucille Dixon, a 53-year-old registered nurse residing in Hockley, a town about 40 miles northwest of Houston. At Richard’s 1987 trial, prosecutors alleged that Richard stopped by Dixon’s house, asked her son about buying a van in the driveway, waited for Dixon’s children to leave, then entered her home. At the trial, prosecutors presented evidence that Richard shot her and on his way out stole two television sets and the van.

Richard was convicted of capital murder and then successfully challenged his death sentence in a successive state habeas application with the Texas Court of Criminal Appeals based on the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia, which bars the execution of the mentally retarded as cruel and unusual punishment. After an Atkins hearing, visiting District Judge Mary Bacon recommended that the CCA deny Richard relief, which the CCA did on March 21.

On June 12, when 182nd District Judge Jeannine Barr scheduled a Sept. 25 execution date for Richard, Texas Defender Service litigation director and University of Houston Law Center professor David Dow, who has represented death-row inmates for more than two decades, says his team began to focus on the case.

Richard’s case attracted TDS lawyers, Dow says, because they believed he had a bona fide Atkins claim that had not been fully fleshed out in federal court. Richard’s previous habeas counsel had run into a court-imposed time crunch not of his own making and had been diagnosed with Parkinson’s disease. Dow says TDS — which has offices in Austin, Houston and San Francisco — was receiving letters from Richard, asking for help — letters that also showed evidence of Richard’s mental retardation. So the nonprofit offered to take over Richard’s case from his previous habeas counsel.

TDS lawyers represent inmates or assist court-appointed counsel for the majority of Texas’ 393 death-row inmates, most of whom are indigent. Given TDS’ scare resources and the pace of executions in Texas — 26 in 2007 — TDS’ five full-time lawyers and five part-time lawyers, including Dow, have to set priorities, paying close attention to the cases of death-row inmates whose execution dates are set.

Initially, Dow says, two TDS senior staff lawyers, Greg Wiercioch and Maurie Levin, began the work on Richard’s case. They decided by mid-summer that they wanted to make another attempt to get the courts to recognize that Richard was mentally retarded and should not be executed, Dow says.

On Sept. 24, one day before the scheduled execution, Wiercioch, having exhausted the remedies of all other state and federal courts, filed on Richard’s behalf an original petition for writ of habeas corpus and a petition for writ of mandamus in the U.S. Supreme Court, basing his claims on Atkins and Richard’s alleged mental retardation.

The Plan

At 8 a.m. CST on Tuesday, Sept. 25, the U.S. Supreme Court announced it had granted cert in Baze.

Dow didn’t check his e-mail that morning as he headed to the UH Law Center to teach a contracts class. After class he went to his office at the law school, where at 10:30 a.m. he saw an e-mail from Wiercioch that said the Supreme Court had granted cert in Baze.

“I got an e-mail from Greg wondering whether we should do something on the lethal injection front” in Richard’s case, Dow says.

By 11 a.m., Dow and seven other TDS lawyers were on the phone mapping out their plan for the day. Dow and TDS staff attorney Alma Lagarda would work on Baze-related relief. Wiercioch and Levin would continue pursuing an Atkins-related claim.

Until Sept. 25, Dow says, TDS lawyers focused all efforts on relief for Richard through an Atkins claim, rather than raising questions about the constitutionality of lethal injection. The logic behind such a strategy was simple, Dow says: A successful Atkins claim would bring permanent relief from a death sentence. “If you prevail on an Atkins claim, your client moved off death row,” Dow says. Alternatively, “if you prevail on a lethal injection claim, your client could still be executed.”

Historically, Dow says, TDS had seen lethal injection claims gain no traction with the courts. “Our view was that raising a legal injection claim on behalf of Richard would have been frivolous, a waste of time and resources,” Dow says.

But on Sept. 25, the TDS team knew unequivocally that a new avenue of appeal had opened, because the Supreme Court agreed to hear Baze, says Dow. They had to pursue relief for Richard related to the constitutionality of lethal injections. But time was short.

“We were in a fairly intense cauldron,” recalls Dow. “We had six hours before an execution.”

To best pursue a Baze-related claim, Dow believed Richard needed to go to the CCA, where Dow says he expected the judges to deny relief. But by going to the CCA, Dow says, Richard would have exhausted state remedies and would therefore have a clear path by the evening to file an appeal of an unfavorable CCA decision with the U.S. Supreme Court. He did not necessarily need to exhaust other federal remedies to go to the Supreme Court, Dow says.

Dow says he initially planned to file a petition for a writ of prohibition and a successive petition for writ of habeas corpus with the CCA. Dow believes the intellectually sound vehicle for raising a claim related to the constitutionality of lethal injection procedures was a writ of prohibition rather than a writ of habeas corpus. Habeas proceedings are intended to challenge convictions and sentences, he says. Writs of prohibition can be tailored to focus on methods of execution.

Dow had targeted his filings for the CCA, because he says he knew the U.S. Supreme Court was unlikely to hear any appeals that had not first been reviewed by the CCA.

Richard Wetzel, who served as CCA general counsel from 1987 until 2003 and now practices as a solo in Austin working on habeas petitions for death-row inmates, agrees. He says the high court rarely will hear a habeas petition, writ of prohibition or a motion for a stay of execution unless a state’s highest criminal court — in Texas, the CCA — has ruled on it.

The Supreme Court does on rare occasion agree to hear appeals previously not reviewed by a state court, so-called original habeas petitions (or extraordinary writs), but it did so in only four individuals’ cases in the 20th century, according to “Federal Habeas Corpus Practice and Procedure” by New York University School of Law professor Randy Hertz and Columbia University School of Law professor James S. Leibman.

Dow didn’t want to pursue relief from the federal courts, because those courts, the 5th Circuit in particular, had a track record of denying relief if an execution was imminent.

Dow says, “I ruled out the federal court option, because I didn’t think that we were going to have time to go to both federal and state court. I thought that the legal issues that faced us in state court were less daunting than the hurdles that faced us in federal court,” referring to 5th Circuit decisions barring last-minute challenges to methods of execution.

Dow set a 3:30 p.m. deadline for Lagarda to turn in a combined draft of a writ of prohibition and a writ of habeas corpus, which he planned to craft into two filings. He also asked her for a stay motion. “I figured it would take me 30 minutes to edit,” says Dow. Lagarda got him the draft of the three filings in one document on time, Dow says.

Dow, who had left UH to work in TDS’ Houston offices, edited the draft until around 4 p.m. That’s when he tried to e-mail it to Lagarda’s computer, so she could add exhibits as attachments. But panic set in when Dow’s computer wouldn’t let him e-mail the filing. Dow says he tried to save the document on a network drive, ran into problems and then realized the whole office no longer had Internet access.

“We were having big computer problems, and we were not going to be done by 4, and that we could only get one filing, rather than two, out,” Dow recalls.

He decided to file a writ of prohibition and motion for stay with the CCA, not a successive habeas petition. In the writ he included a footnote reminding the court that it was “not limited by the denomination of the instant petition” — meaning that the court could judge the filing as a writ of habeas corpus if that’s what the judges wanted, Dow says.

At about 4:30 p.m., Dow says he shouted to Lagarda to have paralegal Rindy Fox call Abel Acosta, the CCA’s deputy clerk, and tell him TDS needed extra time to file the writ and motion because of computer problems. Within moments, Dow says, Lagarda told him that Acosta said the court closed at 5 p.m.

Dow says he gave instructions for Fox to call Acosta again to explain the situation and ask if TDS lawyers could file electronically. Acosta told the paralegal he would check to see if the court could stay open later, Dow says. But at 4:51 p.m., Dow says, the deputy clerk called back and told Fox the court would close at 5 p.m. At that point, technicians resolved TDS’ computer problems, Dow says, and he e-mailed the petition for writ of prohibition and motion for stay to TDS staff in Austin, who began photocopying the documents.

When they finished at 5:10 p.m., Dow says, he told Fox to call Acosta one more time to see if the clerk would accept the filing. Dow says Acosta told Fox the court was closed.

Acosta declines to comment for this article, referring questions to CCA Judge Tom Price, who did not return three telephone calls seeking comment.

CCA general counsel Ed Marty refers questions about the events of Sept. 25 to Price as well. “We work for the judges,” Marty says, adding that since he arrived at the CCA in November 2003, he does “not recall an instance when the court has stayed open late.”

Last month, Marty told Texas Lawyer that when he learned Richard’s lawyers wanted more time, at about 4:45 p.m. on Sept. 25, he asked CCA Presiding Judge Sharon Keller if the court’s policy was to close at 5 p.m. Keller told him yes, Marty said. [See “Missed Deadline, CCA Closure Lead to Complaint Against Judge,” Texas Lawyer, Oct. 15, 2007, page 1.]

Dow says he doesn’t believe Acosta was the decision-maker.

Could the CCA clerk’s office have stayed open? Former CCA General Counsel Wetzel says yes. He recalls that during his tenure, CCA judges frequently considered requests for relief from executions in the middle of the night.

“I always stayed in touch with the defense lawyers. I had them bring stuff to my house. I had judges review filings in their pajamas. The court’s position was ‘bring it on, we will consider.’ There was always a venue available. Part of my job was to stay open to the last minute, and generally we were always able to reach judges.”

In October, CCA Judge Cheryl Johnson told Texas Lawyer she was the judge assigned to handle late motions in Richard’s case but she was not told that his attorneys had requested the court to remain open past 5 p.m. “I was out of the loop,” she said.

When asked why he didn’t call the CCA judges directly on Sept. 25, Dow says: “I wouldn’t know how to call a judge. I don’t have their cell numbers.” He also believes such communication might have been an ex parte conversation.

Keller declines a request to provide a chronology of events on Sept. 25. “The court’s just not commenting on it,” she says.

But Keller told the Austin-American Statesman in an Oct. 3 article:

“I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given. And I know that that is not what other people have said, but that’s the truth. They did not tell us they had computer failure. And given the late request, and with no reason given, I just said, ‘We close at 5.’ I didn’t really think of it as a decision as much as a statement.”

In an Oct. 5 Houston Chronicle article, Keller was quoted as saying: “You’re asking me whether something different would have happened if we had stayed open, and I think the question ought to be why didn’t they file something on time? They had all day.”

Harris County Assistant District Attorney Lynn Hardaway, who represented the state in its post-conviction litigation with Richard in state court, agrees. She says motions for a stay “don’t have to be long documents. They could have been handwritten.”

Bell County District Attorney Henry Garza agrees. Regardless of computer problems, Garza says, “I certainly can express on one handwritten page a motion for a stay based on Baze,” Garza says.

But Dow rejects the notion that he could have dashed off something short to a trial court or the CCA.

There was absolutely no chance a motion for modification or withdrawal of execution date would be granted by a trial court, Dow says. Based on his experience in filing such motions for clients who had Atkins-related claims, Dow says he knew state trial courts would say no. He notes that, after Sept. 25, no state trial courts in Texas, despite condemned men’s requests, granted Baze-based motions for modifications or withdrawal of execution dates. “Any lawyer in Texas who is counting on a trial court to grant a stay because of a cert grant in the Supreme Court is crazy,” says Dow.

“The notion that we were going to get anything from state [trial] court was absurd,” says Dow, based on his experience with Texas courts.

Regarding filing something short with the CCA, he says, “Our only thought was to run something [Baze-related] through state court [the CCA] so we could go to the Supreme Court and it could grant a stay if it wanted.”

Dow says he didn’t file something short with the CCA, because he thought the Baze-related document needed to be comprehensive. His petition for writ of prohibition — intended for the CCA but eventually filed in the 182nd District Court in Harris County — was 23 pages long. “At that time we felt we had to make a full, robust argument,” Dow says. Filing a one-pager that day “would have been preposterous,” he adds.

Shut out of the CCA, Dow says he scrambled for other options. He began to prepare to file a motion for a stay directly to the U.S. Supreme Court, which he knew would accept a faxed or electronic filing after 5 p.m. He also sent TDS office administrator Sally Sepulveda to the trial court in Houston shortly after 5 p.m. to file the stay motion and petition for writ of prohibition prepared originally for the CCA.

Lawyers for the state were paying close attention to events in Richard’s case that day. Hardaway had left her house that morning before 9 a.m., knowing Richard’s execution was scheduled. As a result, she expected to stay in the office late, at least until after the execution took place or, alternatively, a court halted it so she could answer any questions or respond to any last-minute requests for relief by the defense.

By noon on Sept. 25, Hardaway was in regular contact with Baxter Morgan, an assistant attorney general in the post-conviction litigation division of the Office of the Attorney General. In his job, Morgan represents the Texas Department of Criminal Justice when the agency opposes death-row defendants seeking habeas relief in the federal courts. Also, as the lawyer for the Texas prison system, on execution day he stays in regular contact with a prison warden at the Walls Unit in Huntsville, where officials prepare for an execution. Responding to e-mailed questions sent to AG spokesman Jerry Strickland, Morgan explains his office’s general role in executions: “[W]e try to ensure that the convicted capital murderer does not have any pending or potential litigation under way when the execution warrant is carried out at the court-appointed time.”

Hardaway says she talked several times with Morgan who kept her apprised of the defense’s plans as he understood them. She spent much of the morning in court on another case and the rest of her time waiting for defense attempts to obtain last-minute relief for Richard.

Morgan says that he called TDS’ Wiercioch at 2 p.m. on Sept. 25 and that Wiercioch told him that the defense was working on a constitutional challenge to lethal injection. By 2:30 p.m., Morgan says, Morris Moon, a TDS staff lawyer, called him to say TDS would file a successive state habeas petition and a petition for mandamus raising a lethal-injection claim with the CCA. Morgan further says that on the afternoon of Sept. 25 he repeatedly called Wiercioch, who was working on the Atkins claim rather than the lethal injection claim, to ask about the proposed filings with the CCA based on a constitutional challenge to lethal injection. “The response was in essence, ‘We are working on it,’ ” Morgan says.

For his part, Wiercioch says, he initially told Morgan that he wasn’t working personally on the lethal injection claim, instead focusing on the Atkins claim. Wiercioch says he told Morgan about the computer problems around 5 p.m.

Working from TDS’ Austin offices, where the computers were working, by 4 p.m. on Sept. 25 Wiercioch filed supplemental pleadings with the U.S. Supreme Court in support of Richard’s Atkins claim. At about 5 p.m., the high court faxed back its ruling on the Atkins claim, rejecting relief for Richard, says Wiercioch, who worked for TDS in Texas for nine years before he launched the nonprofit’s San Francisco office.

At 5:45 p.m., with news of the high court’s rejection of Richard’s Atkins claim, Morgan states he contacted Wiercioch again. Wiercioch told Morgan the defense team planned to file a second claim with the Supreme Court, this time based on Baze, according to Morgan.

Wiercioch, who says he was still in shock upon learning the CCA wouldn’t stay open past 5 p.m., remembers the call from Morgan as disturbing. “Are you going to file anything, because as far as I’m concerned nothing further is pending,” Wiercioch remembers Morgan saying. Wiercioch says the assistant AG was “officious, almost as if he was reading from a decree.” At the end of the conversation, Wiercioch says, Morgan announced, “I’m going to give you six minutes to file whatever you’re going to file.” Wiercioch recalls telling Morgan that TDS would not make the deadline he had imposed.

Asked about the characterization of the telephone conversations between Wiercioch and Morgan, Strickland writes, “The Texas Defender Service and Greg Wiercioch’s recollection and characterization of the conversation are not accurate. The attorney general’s office proactively communicated with convicted murderer Michael Richard’s counsel. Once we learned that no litigation was pending before either the Texas Court of Criminal Appeals or the U.S. Supreme Court when the execution order became effective, we urged counsel to file any remaining appeals as quickly as possible. Richard’s counsel knew full well that the execution warrant, which is a court order, would be effective as of 6 p.m.”

It was about 5:50 p.m. when TDS office administrator Sepulveda and assistant DA Hardaway met in the elevator at the Harris County Criminal Justice Center, Hardaway recalls. Hardaway says she had anticipated all day that defense counsel would file something, somewhere, to attempt to halt Richard’s execution. When Hardaway learned from Morgan that TDS lawyers had missed the CCA’s deadline and were going to file in the trial court, she headed for the lobby to make sure she got a copy. Hardaway says she showed Sepulveda the box in the courthouse lobby where she could deposit her documents and get an after-hours file stamp on a copy.

Without closely looking at the filing Sepulveda gave her, Hardaway says, she presumed Richard’s lawyers had filed a subsequent habeas application, which by law the trial court sends to the CCA. She called Dow and told him that she would send the filing on to the CCA. But after reading the document and realizing it was a petition for writ of prohibition and motion for stay, not a subsequent habeas application, she called Dow back and told him, “There is no action for me to take on this.”

She says if Dow had filed a motion to modify the execution date, a trial judge could have acted on it. “I would have gotten the judge on the phone,” says Hardaway. Or if the defense had filed a subsequent habeas writ, the trial court would have sent it to the CCA, Hardaway says. But what TDS filed on Richard’s behalf was a petition for writ of prohibition and motion for stay of execution, both of which, Hardaway says, are appropriately filed directly with the CCA.

Hardaway told Dow that she had called Barr and she and the judge agreed that the trial court could do nothing with the stay motion and the writ of prohibition, because those should have been filed with the CCA.

Barr did not return two telephone calls seeking comment.

Dow says he knew the documents were not appropriately filed with the trial court, but he wanted to get something filed in a state court before going to the U.S. Supreme Court.

At 6 p.m. the court-ordered warrant for Richard’s execution became effective. Morgan states that by that time he agreed to wait for Richard’s lawyers to file one last appeal with the Supreme Court, even though no litigation was pending and the death warrant was in effect. Morgan states that Wiercioch told him TDS was preparing to file a motion for stay of execution with the Supreme Court based on Baze, which the defense team did.

In the Baze-based motion for stay of execution, the TDS lawyers noted, “This morning, this Court agreed to review precisely the question that Mr. Richard seeks to raise.” The motion also explained what had happened earlier in the day after computer problems hampered TDS’ efforts to file a Baze-based motion for stay within the CCA’s business hours: “The clerk of the Court [of Criminal Appeals] refused to remain open past 5 p.m. to permit Mr. Richard’s counsel to file . . . pleadings,” the motion noted.

But at 7:30 p.m., the justices denied Richard’s request without stating why.

Dow says he still doesn’t know the reason for the high court’s denial. But four habeas lawyers interviewed believe the high court denied the motion because the TDS defense team hadn’t gotten a ruling from the CCA. They note that, after Sept. 25, the Supreme Court has halted the scheduled executions of all death-row inmates who, after exhausting state and lower federal court remedies, sought stays based on Baze.

Upon learning about the Supreme Court’s denial of Richard’s request for a stay, Morgan states that he called Wiercioch again.

“Is this it?” Morgan says he asked Wiercioch, and Wiercioch answered yes.

Morgan says, “After the final conversation with Richard’s counsel, which was initiated by the Office of the Attorney General, we notified TDCJ that all litigation had been exhausted.”

Having exhausted their options with the courts, TDS turned to the executive branch. Wiercioch says at about 7:40 p.m., TDS’ Levin called Michael Bryant, assistant general counsel to Texas Gov. Rick Perry for the third time that day.

Levin says Bryant told her that although the CCA clerk’s office closed at 5 p.m. and the Supreme Court had decided to hear Baze, Perry would not grant Richard a reprieve, which Richard had requested in writing earlier that day.

Bryant declines to comment for this article, referring all questions to the governor’s press spokesman Robert Black. In an e-mail, Black’s office, noting complaints filed after Sept. 25 against Keller with the State Commission on Judicial Conduct, the state agency charged with investigating allegations of misconduct by judges, says, “Given that the facts surrounding the recent execution of Michael Richard are currently being reviewed by the Judicial Conduct Commission, it would be inappropriate for the Governor’s Office to comment. It should be noted, however, that the Governor’s Office waits to proceed until the courts have completed their work.”

At 8:20 p.m., the state executed Richard by lethal injection.

For Hardaway, who learned from the AG’s office that the execution had taken place, the end of Richard’s life meant the end of a long day of waiting: “We just always stay until the execution is complete,” she explains, “in case there are any questions to answer.”

Wiercioch says when he first learned the CCA had closed at 5 p.m., he thought about “getting on the phone and yelling at somebody.” But he says, “I don’t know any judges there. In hindsight maybe I should have gone over there and banged on the door.”

The closing of the CCA clerk’s office “took the air out of me, every last bit of energy,” Wiercioch says. “I wasn’t sure what to do. I still held out the hope that we were going to be allowed to file this thing. I also thought foolishly we would just tell the Supreme Court what happened and they’ll stay the execution. It’s very clear now Michael Richard shouldn’t have been executed on Sept. 25.”

Dow says the hour between the Supreme Court’s rejection of the motion for stay and the execution left him more unsettled than he usually becomes during such depressing days for TDS lawyers. He believed, during the 90 minutes it took the high court to reject the stay, that the court might grant it.

Aftershocks

The news reports that circulated about Keller refusing to keep the CCA clerk’s office open past 5 p.m. on the day Richard faced execution prompted complaints to the State Commission on Judicial Conduct.

Texas Civil Rights Project director James C. Harrington is among the lawyers who have filed complaints against Keller with the State Commission on Judicial Conduct. In an Oct. 11 complaint, Harrington and 19 other attorneys allege that “Judge Keller’s actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution. Her actions also brought the integrity of the Texas judiciary and of her court into disrepute and was a source of scandal to the citizens of the state.”

Harrington also filed a grievance with the Office of the Chief Disciplinary Counsel (OCDC) of the State Bar of Texas in October.

A letter to Keller from the OCDC, dated Nov. 1, states that it dismissed the grievance after determining that the information provided did not allege professional misconduct or a disability.

The National Association of Criminal Defense Lawyers (NACDL) filed a complaint against Keller with the judicial conduct commission on Oct. 23, says Jack King, the association’s director of public affairs. King says it is the first complaint the NACDL has ever filed against a judge.

Austin solo Keith Hampton says the Texas Criminal Defense Lawyers Association filed a complaint against Keller with the judicial conduct commission on Oct. 25. “We asked them to look at this seriously,” Hampton says.

Seana Willing, the commission’s executive director, declines comment on how many complaints it has received against Keller. “I cannot confirm or deny we’ve received any complaints,” Willing says.

Keller, who has been on the CCA since 1994 and has been presiding judge since 2000, has earned the enmity of death penalty opponents, some of whom have started a blog at www.Sharonkiller.com dedicated to enlisting support to impeach her.

Also criticized has been the CCA’s lack of an electronic-filing system for handling after-hours pleadings. The CCA announced on Nov. 6 that it had established a temporary electronic filing system. [See “CCA Creates E-Mail Filing System for Urgent Pleadings,” Texas Lawyer, Nov. 12, 2007, page 5.]

On Nov. 7, Richard’s widow sued Keller and unnamed defendants in the U.S. District Court for the Southern District in Houston seeking unspecified monetary damages, including punitives. Among other allegations, Marsha Richard alleges in her original complaint in Richard v. Keller, et al. that Keller acted without authority when she prevented Michael Richard’s lawyers from filing a petition for writ of prohibition and a motion for stay of execution in the CCA. In addition to damages, the widow asks the federal court to enjoin the defendants from “again unlawfully interfering with the due process appeal rights of the condemned under the United States and Texas Constitutions.” On Nov. 8, Marsha Richard’s lawyer filed a notice of dismissal in that court. A day later, he mailed the suit to the Western District of Texas. [See “Presiding Judge Sued,” Texas Lawyer, Nov. 12, 2007, page 3.]

With so many questions and complaints lingering, Michael Wayne Richard’s last words couldn’t have been more wrong.

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Sunday, November 18, 2007

Video and Photos of Keller Protest

Here we are standing in line at the Texas Court of Criminal Appeals to deliver more than 1500 signatures on the judicial complaint and some personal letters. Photo by Brent Lavelle. More photos here. Here is a link to the excellent report on MyFox Austin.

Hooman Hedayati shot this video.

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Friday, November 16, 2007

"Keller Rule" Broken: We Keep CCA Open After Five to Accept Letters Telling Keller to Resign

Today, the Texas Court of Criminal Appeals stayed open late accepting letters from the public urging Judge Sharon Keller to resign. On Sept 25, Keller closed the court sharply at 5, saying "We close at five", but today the court stayed open for business until 5:03 accepting letters urging Keller to resign. This shows how arbitrary the decision was on Sept 25 to close exactly at five. The court stayed open an extra three minutes today with no problem, they could have easily stayed open an extra 20 minutes on Sept 25 to accept an appeal from a man set for execution at 6 pm that day.

Click here to watch an excellent video story of today's protest from FOX 7 News.

We lined up at the office of the clerk of the court at about ten minutes before five pm to turn in a copy of the judicial complaint signed by more than 1600 people. We also each brought a personally written letter to Keller telling her to resign. Each person stood in line to personally deliver their letter to the clerk. When the clock reached five pm, there were several people still waiting in line. The clock reached 5:01 and 5:02 and still the clerk kept the office open accepting letters. Finally, after the clock had passed 5:03, the clerks stopped accepting letters, left the area and turned off the lights. We asked them to stay open an extra twenty minutes so that everyone could turn in their letter, but they refused. Yet they had already broken the "Keller Rule" by staying open three minutes beyond 5. People who had not yet had a chance to turn in their letters to the clerks left them lying on the counter.

Michael Richard's sister, Patricia Miller, spoke to the group outside the court after the delivery of the letters and judicial complaint. Watch the video above to hear what she said. Patricia demanded that Keller resign no later than Nov 25.

We shot some of our own video that we will post on YouTube in the next few days.

Please take a moment to send an email to Sharon Keller telling her to resign. Your email will also be sent to Governor Perry, members of the Texas Legislature and the other judges on the Texas Court of Criminal Appeals.

Click here to send Sharon Keller an email telling her to resign.

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Thursday, November 15, 2007

In hours before last execution, a frenzied legal fight

USA TODAY has a long article in today's paper about the Sharon Keller controversy, which is coming out one day before the peoples' protest against Sharon Keller at the Texas Court of Criminal Appeals.

"In hours before last execution, a frenzied legal fight"

By Kevin Johnson

Excerpt:

The defense team's plans began to unravel about 3:15 p.m., when its computer system crashed at the Houston office of the Texas Defender Service, a privately funded group that specializes in death cases. The system crashed as attorneys were drafting the appeals.

The crash cut off electronic contact between Houston and the Texas Defender Service's office in Austin, where paralegals and attorneys were standing by to print the required 10 copies of the documents for delivery to the Texas appeals court before its 5 p.m. closing.

Efforts to repair the computer system failed. By 4:30 p.m., Dow says, the defense team in Austin began alerting the clerk at the state Court of Criminal Appeals about the problem, and the likelihood that Richard's appeal would be late.

Louise Pearson, the court clerk, did not respond to USA TODAY's request for comment.

Defense attorneys say at least four pleas for more time to file Richard's appeal were denied — the last at about 4:48 p.m., after attorneys had regained some computer functions. Dow says his team asked the court about filing the appeal electronically. The request was rejected, he says.

"Everybody in the office was outraged," Dow says.

Less than a half-hour before the scheduled 6 p.m. execution — as the defense team turned to its last option, the Supreme Court — the computer problems flared again.

The lethal-injection appeal took on added importance about 5:30 p.m., when the high court rejected the defense's mental retardation appeal. Dow says the last-ditch lethal injection appeal to the Supreme Court may have been undermined because the Texas court had never ruled on the issue, leaving no record for the Supreme Court to consider.

As defense attorneys raced to overcome technical problems, Wiercioch says he received an unusual telephone call from Texas Assistant Attorney General Baxter Morgan minutes before the 6 p.m. deadline.

Wiercioch says the attorney general's office was aware of the problems plaguing the defense team. He says Morgan called to say that the state still planned to proceed with the execution.

"I said, 'Whoa! Whoa!,' " Wiercioch recalls, adding that he pleaded for more time.

Morgan's response, says Wiercioch: "You've got six minutes."

"It was a stunning conversation," the defense lawyer says. "It was like I was talking to a robot."

Strickland, the spokesman for the attorney general's office, says that "the Texas Defender Service and Greg Wiercioch's recollection and characterization of the conversation are not accurate."

Strickland does not specifically dispute that Morgan referred to a six-minute deadline. He says Morgan's words were mischaracterized as an ultimatum.

"Richard's counsel knew full well that the execution warrant … would be effective as of 6 p.m.," Strickland says.

Even so, Strickland says that immediately after the conversation, the attorney general's office directed prison authorities to suspend the execution until the U.S. Supreme Court weighed in.

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Tuesday, November 13, 2007

Texas Volunteer Can't Get an Execution Date

The AP says that one of the Texas 7 wants to drop appeals and become a volunteer for execution, but the convicting court judge refuses to set an execution date until after the U.S. Supreme Court rules in Baze v. Rees.

Rodriguez, one of the "Texas 7," convicts who escaped from a state prison in 2000 and killed a Dallas-area police officer while on the lam, has dropped his appeals and wants to die.

He can't.

A federal judge signed off on Rodriguez's request Sept. 27, two days after the U.S. Supreme Court agreed to consider a Kentucky challenge to lethal injection as a means of capital punishment. But now a state judge won't set an execution date for Rodriguez until after the Supreme Court rules on the Kentucky case.

"We probably won't be able to set the date for the first time until probably late next year at the earliest, even though he has volunteered and is otherwise good to go," said Dallas prosecutor Lisa Smith.

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The People Coming to Complain Against Sharon Keller Nov 16

Come Deliver the Peoples' Judicial Complaint Against Judge Keller

Why: Judge Sharon Keller has violated the Judicial Code of Conduct and damaged the integrity of the Texas judiciary. She should resign or be removed from office. On Sept 25, Keller said "We close at 5" and refused to accept an appeal 20 minutes after 5pm from a man set to be executed at 6 pm that day. She did not consult with the duty judge or any other judges on the court before refusing to accept the appeal. Michael Richard was executed on Sept 25, but he would not have been executed that night if Keller had not acted unethically and violated his constitutional rights. Richard was the last person executed in the U.S.before the start of the current de facto moratorium pending the U.S. Supreme Court's decision in the Baze v. Rees case on the constitutionality of lethal injection as a method of execution.

Date: Friday, Nov 16 at 4:45

Schedule:

4:45 pm Start to gather and get in line to deliver letters urging Keller to resign and the copy of the judicial complaint to the Clerk of the Court.
5:00 The court closes, but we want to have people standing in line with letters to deliver, so that the court is inconvenienced and forced to stay open an extra 20 minutes to serve everyone in line.
5:20 Rally with speakers outside on the Court plaza.

Place: Texas Court of Criminal Appeals,
201 West 14th Street
Austin, Tx

(This is the official address. We will meet on the plaza around the corner facing Congress Ave.)

Action: We will be delivering a copy of a judicial complaint against Sharon Keller signed so far by more than 1300 members of the public.

You can still sign the complaint by clicking here or visiting the website www.SharonKiller.com

We ask that people bring their own personally written letters urging Keller to resign and you can deliver yours to the Clerk of the Court.

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Monday, November 12, 2007

Protest Judge Sharon Keller's Unethical Conduct - Friday, Nov 16, at CCA in Austin

Come Deliver the Peoples' Judicial Complaint Against Judge Keller

Why: Judge Sharon Keller has violated the Judicial Code of Conduct and damaged the integrity of the Texas judiciary. She should resign or be removed from office. On Sept 25, Keller said "We close at 5" and refused to accept an appeal 20 minutes after 5pm from a man set to be executed at 6 pm that day. She did not consult with the duty judge or any other judges on the court before refusing to accept the appeal. Michael Richard was executed on Sept 25, but he would not have been executed that night if Keller had not acted unethically and violated his constitutional rights. Richard was the last person executed in the U.S.before the start of the current de facto moratorium pending the U.S. Supreme Court's decision in the Baze v. Rees case on the constitutionality of lethal injection as a method of execution.

Date: Friday, Nov 16 at 4:45

Schedule:

4:45 pm Start to gather and get in line to deliver letters urging Keller to resign and the copy of the judicial complaint to the Clerk of the Court.
5:00 The court closes, but we want to have people standing in line with letters to deliver, so that the court is inconvenienced and forced to stay open an extra 20 minutes to serve everyone in line.
5:20 Rally with speakers outside on the Court plaza.

Place: Texas Court of Criminal Appeals,
201 West 14th Street
Austin, Tx

(This is the official address. We will meet on the plaza around the corner facing Congress Ave.)

Action: We will be delivering a copy of a judicial complaint against Sharon Keller signed so far by more than 1300 members of the public.

You can still sign the complaint by clicking here or visiting the website www.SharonKiller.com

We ask that people bring their own personally written letters urging Keller to resign and you can deliver yours to the Clerk of the Court.

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Saturday, November 10, 2007

Lawsuit Against Judge Sharon Keller Moves to Austin Federal Court

The Austin American-Statesman is reporting Sunday that:

Marsha Richard, the widow of the latest man to be executed in Texas, has withdrawn her lawsuit against Judge Sharon Keller so she can refile it in Austin federal court, her lawyer said Saturday.

Richard's original lawsuit, filed last week in Houston, accused Keller of exceeding her authority as presiding judge of the Texas Court of Criminal Appeals, the state's highest criminal court, when she refused to accept a death penalty appeal after the court's 5 p.m. closing time.

...

Richard's lawyer, Randall Kallinen of Houston, said he is moving the lawsuit because most potential trial witnesses live in Austin.

"I also want the jury to be able to walk into the Court of Criminal Appeals and see where that phone call came in," Kallinen said. He said the change also allowed him to beef up portions of the suit dealing with judicial immunity, the lawsuit's highest hurdle. Judges are immune from lawsuits dealing with their judicial actions, but can under limited conditions be sued over administrative decisions.

Kallinen said he withdrew the lawsuit Thursday and mailed the new version to the Austin federal court, where he anticipates it will be filed Tuesday.

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Friday, November 09, 2007

Stop Sharon Keller Rally - Friday, Nov 16, 4:45, Texas Court of Criminal Appeals




Sign the complaint here.

We will deliver a copy of the complaint to the clerk of the Texas Court of Criminal Appeals for distribution to Sharon Keller and the other judges on the Court. We will also mail a copy to the State Commission on Judicial Conduct.

You can also bring your own personally written letter to the rally and deliver it to Sharon Keller urging her to resign.

SharonKiller.com

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Thursday, November 08, 2007

Texas Monthly to Call for Impeaching Sharon Keller

Texas Monthly's December issue has an article by Mike Hall calling for Sharon Keller to be impeached, according to Evan Smith's blog:

When a man’s life is on the line—to say nothing of the U.S. Constitution—our top criminal judge should behave like one: with prudence, fairness, and a calm hand. It’s time for Keller to go. If the commission doesn’t act quickly, we’ll have to wait until January 2009, when the Legislature—which has the power to oust high judges—reconvenes, or worse, 2012, when Keller is up for reelection. The fact is, we need to do it now. Impeach Sharon Keller.
That sounds similar to what we wrote on October 3:

"Texas Court of Criminal Appeals Presiding Judge Sharon Keller should resign or be impeached and removed from office for her conduct regarding the execution of Michael Richard. As long as Keller is in office, the people of Texas can not be sure that justice is being done with integrity."

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Copy of the Lawsuit Filed Against Sharon Keller

Below is a scanned copy of the lawsuit filed against Sharon Keller by the widow of Michael Richard. You can also download it here. Grits for Breakfast has a post on the Keller controversy here.

Sign the judicial complaint against Keller here.



Pictured are Marsha Richard and Randall Kallinen. Photo by Sandrine Ageorges.

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Wednesday, November 07, 2007

Wife of executed killer blames judge for husband's death

Sign the judicial complaint against Keller.

Wife of executed killer blames judge for husband's death

05:21 PM CST on Wednesday, November 7, 2007
By Rucks Russell / 11 News

Marsha Richard has spent the last 40 days consumed by what-ifs.

What if Judge Sharon Keller, who presides over the Texas Court of Criminal Appeals, had allowed her husband’s last minute appeal to move forward?

What if Michael Richard, who raped and brutally murdered a 53-year-old nurse, had been spared death by lethal injection?

“He was denied due process. She basically stopped his appeal. Stopped his appeal from reaching the court,” Marsha Richard said.

Her husband’s fight to live ended in a Texas death chamber on September 25, the same day the U.S. Supreme Court agreed to hear a Kentucky case challenging the constitutionality of lethal injection.

Richard’s attorneys wanted to file a similar appeal, but they were minutes late – Judge Keller had closed her office.

11 News

Michael Richard

That spawned protests outside her home last week and a federal lawsuit, filed in Houston Wednesday.

“There is no doubt that were it not for the unilateral actions of Sharon Keller, that Michael Richard would be alive today,” attorney Randall Kallinen said.

Kallinen said he wants Keller sanctioned and civil rights damages for Richard’s wife.

No one at the judge’s officer returned 11 News’ calls, but legal expert Professor Gerald Treece said the law protects her.

“Why not give him a few extra minutes. We’re talking about literally somebody’s life,” Marsha Richard said.

For those who believe the judge went too far, the fight is far from over.

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Judge Sharon Keller being sued by wife of Michael Richard

Today,November 7, 2007, the American Rights Association will hold a press conference announcing the filing of a federal lawsuit in Houston, Texas, on behalf of the wife of Michael Richard against disgraced Judge Sharon Keller who caused the death of inmate Michael Richard, September 25, 2007, when she stopped the Texas Court of Criminal Appeals from hearing what would have been a 100% successful appeal to stay Mr. Richard's execution.

Judge Keller violated her solemn oath as a judge and attorney when she unconstitutionally, without any authority, prevented the now deceased Michael Richard from having his case reviewed by a court as was his right under the law by ordering the court closed. Other judges were diligently waiting for the appeal which never came. Every execution date since Michael Richard's has been stayed because the Supreme Court of the United States has decided to hear a Kentucky case whether lethal injection executions are Cruel and Unusual Punishment under the Constitution.

When Judge Keller, without legal authority, closed the court to Richard's appeal she violated his due process rights as well as the Texas Constitution guarantee that all courts shall be open, and every person ¦shall have remedy by due course of law.

A press conference will be held with the wife of Michael Richard.

WHERE: Federal Courthouse, 515 Rusk, Houston, Texas
TIME: Wednesday, November 7, 2007, 3:00 pm
CONTACT: Randall Kallinen
President, American Rights Association
713/320-3785; attorneykallinen@aol.com

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