The renewal of news about the Cameron Todd Willingham case should not only shed light on the reasons Rick Perry is a bad governor, but it should also illuminate our way-too-Republican Court of Criminal Appeals, which denied writs of Habeus Corpus to Willingham continuously, even a month before execution.
The court is fully occupied by Republicans, and three judges are on the ballot in 2010. Two of those three, according to Grits, belong to the "more or less totalitarian wing" of the court and fully deserve strong challengers.
Keith Hampton, a veteran appellate lawyer and chair of the legislative committee for the Texas Criminal Defense Laywers Association, has announced his candidacy for the Texas Court of Criminal Appeals, lining up to run against Michael Keasler. Here's Hampton's campaign website.
I've had my differences with Keith but he'd be an overwhelming improvement over Judge Keasler, if only to add some balance to the range of opinions on the court.
If the larger Democratic ticket can pull even a slightly successful year, good candidates have a strong chance to defeat Republicans for this court. The Willingham case is only the most recent spurt of anger that can be directed to the CCA.
Now, if only we can get another CCA candidate or two...and a ticket to lead the Democratic charge.
Where are the Democratic candidates challenging the incumbents on the Texas Court of Criminal Appeals who are running for re-election in 2010? The CCA allowed an innocent person to be executed - Todd Willingham. It is the court that one of its own current members says became a national laughingstock years before Sharon Keller said "we close at 5". Keller, its presiding judge, is charged with incompetence and misconduct and could be removed from office.
The three incumbents on the CCA up for re-election in 2010 are: Lawrence Meyers, Michael Keasler and Cheryl Johnson.
Meyers made a laughable, dishonest claim that the CCA has a reputation for fairness in his re-election annoucement. "I am seeking re-election to the Court to continue to be an objective voice and ensure that we maintain our reputation for delivering fair and just opinions," said Meyers in announcing his candidacy for re-election. Tell that to Todd Willingham, whose last appeal based on actual innocence was denied on the day he was executed, "We have reviewed the subsequent application for habeas relief and find that it does not meet the requirements for consideration under Texas Code of Criminal Procedure, Article 11.071, ยง 5 as a claim of newly discovered evidence of actual innocence."
The Dallas Morning News blog said "try not to laugh" at Meyers' claim that the CCA has a reputation for fairness. Meyers deserves an opponent.
Michael Keasler is one of the most, far-right, conservative members of the CCA and also deserves an opponent. Grits for Breakfast has said, "There is no liberal wing on the Texas Court of Criminal Appeals. There's a conservative wing, to which Judge Johnson belongs, and a more or less totalitarian wing, in which Keasler and Meyers reside along with Presiding Judge Sharon Keller."
Cheryl Johnson does not deserve an opponent. Johnson was the duty judge on call the day Keller said "we close at 5" when lawyers for a man set for execution wanted to submit an appeal after 5 pm. Keller violated the Execution-Day Procedures of her own court when she failed to inform Johnson about any communications from Richard's lawyers. Johnson testified for the prosecution in the trial against Sharon Keller, saying that she would have not said "we close at 5" like Keller did, but that she would have allowed lawyers for Michael Richard to submit their appeal instead of slamming the doors of justice closed. Johnson should probably be given a profile in courage award.
Currently there are no Democrats serving on the Court of Criminal Appeals, but I hope the Democrats find 2 strong candidates to run in 2010. It does not serve justice to have every member of any court to be all from the same political party. The Texas Court of Criminal Appeals has been all-Republican for more than a decade. It has become the "worst court in the state" (according to Texas Monthly), if not the entire U.S.
Democrats would have a chance to grab two seats on the CCA, if they find some quality candidates.
(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.
"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.
