Thursday, November 01, 2007

Dow: Keller's decision reprehensible and Perry, Abbott and Supremes also failed

Michael Richard's lawyer, David Dow, writing in today's Washington Post, echoes what has been said by former Texas Governor Mark White that the attorney general of Texas or Governor Perry could have stepped in and stopped the execution of Richard after Sharon Keller's now famous whine, "we close at 5.", but they did not. He says Richard's fate shows the arbitrariness of the death penalty system.

It is well known now that Sharon Keller, the chief judge of the Texas Court of Criminal Appeals, refused to allow us to file the pleadings at 5:30 p.m., when we finished preparing them. (The Texas court, unlike the Supreme Court, does not accept electronic filings, and a series of computer crashes in our office in Houston delayed our preparation of 10 hard copies of the 100-page petition and thus our ability to deliver them on time to the court in Austin.) We pleaded with the court at least three times to stay open, but Keller would not make an exception to the policy that the clerk's office closes at 5. Keller has correctly been criticized, even vilified, for this decision. But the focus on Keller should not absolve the others who share responsibility for this preventable travesty.

The Texas attorney general's office, for example, knew of our intentions that day. Officials there also knew about the delay. Attorney General Greg Abbott could have advised the warden not to proceed with Richard's execution, but he elected not to. Gov. Rick Perry (R) knew what was happening but did not act. The district attorney's office was aware of the development in the Kentucky case and that we had attempted to file an additional pleading citing that development, yet that office also declined to act.

Finally, there is the Supreme Court. For half a decade lawyers have been trying to get the high court to review the constitutionality of the prevalent protocol for lethal injections. The justices knew what they had done that morning in the Kentucky case. They also knew -- because we told them in a last-minute pleading -- that the state court had closed its door on us.

Yet the justices did nothing. They allowed the execution to proceed. Judge Keller's decision, effectively consigning Michael Richard to death, was reprehensible. But it was also typical of the arbitrariness and brazen disregard for legal principle that characterizes most death penalty cases. Since the Supreme Court set this moratorium in motion with its announcement in September, nearly all of the more than 3,000 death row inmates in America have had their lives extended -- all, that is, except one.

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