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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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Tuesday, November 06, 2007

CCA changes rules to avoid repeat of Michael Richard Execution Fiasco

The Houston Chronicle is reporting that "the Texas Court of Criminal Appeals said Tuesday it will accept emergency e-mail filings in death penalty cases in an effort to avoid a repeat of the nationally controversial execution of Michael Richard."

This is a good development and will probably prevent a rogue judge like Sharon Keller from unethically and unilaterally refusing to accept an appeal on the day of an execution in the future without consulting the duty judge.

The new rules say that the decision to accept will be made by the "duty judge", who will "decide whether to accept delivery of the pleading on an emergency basis pursuant to TEX. R. APP. P. 9.2(a)(2)."

The duty judge for the Michael Richard execution was not consulted on the day of his execution. The decision to close the court at 5 and refuse to accept his appeal was made unilaterally by Sharon Keller, which is why she should be removed from office. She should have applied a basic set of ethical standards as is required in the Code of Judicial Conduct. By acting alone, and by not cooperating with the other judges on the court, she denied Richard his constitutional rights.

Sign the complaint against Keller.

There will be a protest at the Texas Court of Criminal Appeals on Wednesday, November 14, starting at 4:45 pm to call for the resignation of Sharon Keller. Her resignation or removal from office is the only way to restore integrity to the office of Presiding Judge of the Texas Court of Criminal Appeals.

SharonKiller.com

Here are the new CCA rules in death penalty cases and other emergency filings:

In the event that an emergency e-mail filing is necessary, you must follow the steps listed below:

1. You must first phone the Clerk’s Office of the Court of Criminal Appeals between 8:00 a.m. and 5:00 p.m. at (512) 463-1551, to inform the Clerk that you will be sending an emergency e-mail pleading. Pleadings sent by e-mail may not exceed 5MB.

2. You will e-mail your emergency pleading by clicking this e-mail link: CCA Emergency E-Mail and attaching the pleading. In your e-mail, you must include your name, address, telephone number, and Texas State Bar Card number. You must also e-mail the pleading to all those who must be served under TEX. R. APP. P. 6.3 or any other applicable rule.

3. You must confirm by phone that the e-mail filing was received by the Clerk of the Court of Criminal Appeals or the Clerk’s designated agent. A representative of the Court will then send a reply e-mail verifying that your filing has been received by the duty judge who will then decide whether to accept delivery of the pleading on an emergency basis pursuant to TEX. R. APP. P. 9.2(a)(2).

4. You must file your pleading in standard paper format, with the required number of copies, in the Court of Criminal Appeals Clerk’s office by 9:30 a.m. Central Time the next business day.

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Sunday, November 04, 2007

Video of Travis CEC Approving Iraq Referendum Proposal

On October 24, the County Executive Committee of the Travis County Democratic Party approved a resolution urging the State Democratic Executive Committee to put a referendum on Iraq on the March 2008 primary ballot.

Anyone can sign the online petition for the Vote Us Out of Iraq referendum by going to:
http://voteusoutofiraq.org

Here is a video of the presentation and vote on the resolution. Scott Cobb is the one standing. The other person at the front of the room sitting on the table is Chris Elliott, chair of the Travis County Democratic Party



The proposed ballot language reads,

"Shall President George W. Bush and the U.S. Congress, in support of the men and women serving in the Armed Forces of the United States, end the U.S. occupation of Iraq and immediately begin the safe and orderly withdrawal of all United States forces."

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Texas slammed the door on a death-row appeal

The Corpus Christi Caller Times has an editorial in today's paper entitled, "Texas slammed the door on a death-row appeal".

Excerpt:

All the evidence in Michael Richard's criminal case says he was a cold-hearted murderer. He killed a young woman without any hint of compassion. He may have been short of the mental capacity to understand the enormity of his crime. But even if society would not allow him that mitigating factor, he deserved more justice than he received in his final hours on earth. More to the point, Texans deserved a better brand of justice to represent them at a crucial moment of decision.

Richard was executed on the evening of Sept. 25, minutes after Sharon Keller, chief justice of the Texas Court of Criminal Appeals, refused to keep the court's doors open for another half hour after the normal 5 p.m. closing time so that his attorneys could file an appeal. Keller's refusal was reprehensible. Now, with the U.S. Supreme Court again staying another execution, this one in Mississippi on Tuesday, the closing of the doors of justice for Richard seems all the more abhorrent.

...

The second point is that the execution of Richard underscores the arbitrary nature of the application of the death penalty. Even defenders of capital punishment -- and this page has supported the death penalty for decades -- have a hard time explaining why one defendant with incompetent legal representation, in a county with different jurors, before a different judge, faced with prosecutors who get plea bargains with accomplices, should die over another defendant accused of an equally cruel crime gets a better luck of the draw. If Keller had kept the doors open, Richard would have had a chance at a stay of execution. But she shut the doors and Richard was executed. This is not justice; it's a roulette wheel.

It's not hard to see why Richard's attorneys believe the entire system failed him. Not only did Keller pay more attention to the closing hours than the law, they believe the state attorney general could have acted as well as the governor's office. But neither did.

The best justice system should honor the rule of law and due process without regard to the vagaries of the defendant's situation. There may be no perfect justice on this earth, but the pursuit of it should be the most vigorous particularly in the worst of crimes. Belief in the rule of law should demand its dispassionate meting out. Do the condemned want to use any legal hand hold to delay the day of their execution? Of course. But the respect for the rule of law should demand that judges keep their minds open to its possible imperfection, not out of any regard to the defendant, but out of regard for the law and the Constitution.

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Saturday, November 03, 2007

Video of Protest at Sharon Keller's House

"We close at 5" is no way to run a justice system on the day of an execution. Click here to sign the judicial complaint.

Click here to send her an email to urge her to resign.

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Friday, November 02, 2007

Email Sharon Keller and Urge Her to Resign

We found the official email addresses of the members of the Texas Court of Criminal Appeals, so now you can send an email to Sharon Keller asking her to resign.

The emails will also be copied to the other CCA judges, Governor Perry and the Texas Legislature. We don't know if all the CCA judges check their official email addresses, but we know at least one of them does, because we got a response from Cathy Cochran.

You just have to click here, write a message and hit send and your email will be sent to Keller and the others.

1,200 people have signed our judicial complaint against Keller, so if you haven't done that, just click here.

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Houston Chronicle Again Questioning Death Penalty

We have said before that the Houston Chronicle Editorial Board seems to be moving more and more towards the abolitionist position. They should stop dancing around the issue and make their position clear but they are not quite ready to do that. In September, they wrote an editorial saying

"There are several good reasons to give every death row inmate an indefinite reprieve. This week the U.S. Supreme Court found another."

That sentence seems to imply that the lethal injection method is not the only reason to support a moratorium on executions.

"Particularly in Texas, the nation's execution leader, the criminal justice system is prone to mistakes and abuse. The system is too unreliable in its assessment of guilt to justify exacting the ultimate, irrevocable penalty."
Now, today they are again hinting that they are moving closer to taking an abolitionist stance, but are not quite ready to clearly say so. Here is what they are saying today:
Now that the Lone Star State's punishment machine is temporarily halted, citizens should consider questions that go beyond whether lethal injection is excruciatingly painful to its recipients and violates the constitutional ban on cruel and unusual punishment:

Why is the death penalty imposed so much more frequently in this state — and Harris County in particular — than in the rest of the country? Are Texans really proud that our state is one of the leading practitioners of government-sponsored executions on the planet?

Worldwide, 133 countries have abolished the death penalty in practice, and 93 have proscribed it by law. Amnesty International notes that only six countries accounted for nearly 90 percent of the executions last year: China, Iraq, Iran, Pakistan, Sudan and the United States. Is this the company we wish to keep when it comes to judicial standards?

Given the high volume of death sentences sought by Harris County prosecutors, instances of tainted evidence and the demonstrated lack of highly competent attorneys representing some defendants, is the risk of executing an innocent person unacceptably high? Chronicle reporting on the execution of a San Antonio man who was convicted of a killing as a teen strongly indicates another man committed the crime.

In next year's Harris County judicial and district attorney contests, these are issues the candidates should discuss in detail and which voters should thoroughly consider.
Of course, their strongest editorial stance lately was when they said Sharon Keller should be removed from office: "since she will not face the voters until 2012, the miscarriage of justice perpetrated by Chief Justice Keller can only be remedied by a recommendation by the Judicial Conduct Commission to the Texas Supreme Court that she be removed from office."

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Thursday, November 01, 2007

Kinky Friedman Signs Sharon Keller Complaint

We were looking over the list of people who have signed on to the complaint against Judge Sharon Keller and we noticed that Richard Friedman was signer number 1,126. It took a minute to remember that Richard is Kinky's actual first name.

Thanks Kinky.

You can sign the complaint too, just click here.

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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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