(More developments in this story... - promoted by Karl-Thomas Musselman)
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.
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."
(From the Journals. - promoted by Karl-Thomas Musselman)
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."
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."
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.
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.
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 SharonKiller.com in the next few days.
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 (This is the official address. We will meet on the plaza around the corner facing Congress Ave.) Austin, Tx
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.
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.
There will be a protest at the Texas Court of Criminal Appeals on Friday, November 16, 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.
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.
"We close at five." It took these four words for Texas Court of Criminal Appeals Presiding Judge Sharon Keller to deny a convicted killer's last appeal. On September 25, the same day the U.S. Supreme Court granted a writ of certiorari to a Kansas inmate questioning the constitutionality of lethal injection, Michael Richard was scheduled to be executed. The attorneys for the Texas Defenders Service requested that the court clerk's office remain open 20 minutes after the 5 p.m. closing time because their computers had crashed. Keller shocked the world by closing the court's office at 5 p.m. on an execution day without even consulting any of the other judges of the court. As a result, a man was executed without being able to have the merits of his last appeal considered by the criminal justice system.
Today, State Rep Lon Burnam of Fort Worth sent a judicial complaint against Judge Sharon Keller to the State Commission on Judicial Conduct. He is the second state legislator to file or sign on to a judicial complaint against Keller. Rep Harold Dutton was one of the 20 lawyers who signed the first complaint last week.
In other developments, the Waco Herald-Tribune wrote in an editorial today that "if Keller cannot be removed from her position, she should be disciplined for her outrageous behavior".
The Houston Chronicle Editorial Board published a strongly worded editorial yesterday calling for removal of Chief Justice Sharon Keller from the Texas Court of Criminal Appeals saying "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".
More than 600 people have signed on to our judicial complaint from general public members that we will file on Oct 30. You can sign too!
