Judges were prepared to ponder execution appeal

But last week's decision by their colleague stymied the bid for a stay

By PEGGY FIKAC

AUSTIN — Texas Court of Criminal Appeals judges were ready to work late the evening Michael Richard was executed, expecting an eleventh-hour appeal that — unbeknownst to them — Presiding Judge Sharon Keller refused to allow to be filed after 5 p.m.

That's according to interviews with two judges, one of whom stayed until 7 p.m. on Sept. 25 and one who left early but was available and said others stayed. They expected Richard's lawyers to file an appeal based on the U.S. Supreme Court's decision earlier in the day to consider a Kentucky case challenging the constitutionality of lethal injection.

"There were plenty of judges here, and there were plenty of other personnel here," said Judge Cathy Cochran, who had to go home early that day but was available. "A number of judges stayed very late that evening, waiting for a filing from the defense attorney."

Cochran said at the least, a decision should have been made by the full court on whether to accept the appeal: "I would definitely accept anything at any time from someone who was about to be executed."

Judge Paul Womack said, "All I can tell you is that night I stayed at the court until 7 o'clock in case some late filing came in. I was under the impression we might get something. ... It was reasonable to expect an effort would be made with some haste in light of the Supreme Court" action. He added, "It was an important issue. I wanted to be sure to be available in case it was raised."

Keller didn't consult the other judges about taking the appeal after 5 p.m. and said she didn't think she could have reached them. She said, however, that Judge Cheryl Johnson, who was assigned the case, was at the court. Johnson didn't return a telephone call.

Keller voiced no second thoughts more than a week after her decision.

"You're asking me whether something different would have happened if we had stayed open," Keller said, "and I think the question ought to be why didn't they file something on time? They had all day."

David Dow, an attorney in the case who runs the Texas Innocence Network at the University of Houston Law Center, called her statement "outrageous," noting that lawyers had to decide legal strategy and then craft a filing about why the case before the U.S. Supreme Court applied to Richard's arguments.

The reason behind the request for the delay was a severe computer problem, Dow said. He said he told the court clerk about the problem. Keller said the lawyers didn't give a reason.

Dow also said the court will not accept a filing by e-mail. If it did, he said, lawyers could have met the 5 p.m. deadline once they beat their computer problem, because printing the filing took extra time. The lawyers needed about another 20 minutes.

Jim Harrington, director of the Texas Civil Rights Project, said he was thinking about filing a complaint with the Texas State Commission on Judicial Conduct about Keller.

"When I saw that, I think I would just describe my reaction as 'stunningly unconscionable,' " Harrington said of her refusal. "There has to be some kind of accountability for this."

Seana Willing, executive director of the Texas commission, said she isn't sure Keller could be sanctioned, were a complaint to be filed, because she isn't aware of anything in the Code of Judicial Conduct that would cover her decision to close the clerk's office while a death penalty case was pending. She indicated she looked through the code after learning of the dispute but could find "nothing specific" dealing with it.

Keller, who was re-elected last year to a six-year term, and Cochran also said they couldn't think of a provision that Keller's action would violate. Judge Mike Keasler, noting he teaches judicial ethics, said he knows of no violation related to such an administrative action by the court's presiding judge.

Harrington said, "I think you'd take the totality of it and have to make some sort of argument this was a gross miscarriage of justice."

Lawyers said that without a ruling by the Texas Court of Criminal Appeals on Richard's appeal, the U.S. Supreme Court couldn't consider it. The U.S. Supreme Court stayed another man's execution the same week, after his appeal was denied by the Court of Criminal Appeals.

Austin defense lawyer Keith Hampton had no opinion on the possibility of a complaint regarding Keller's handling of Richard's case but he was blunt about her action, saying it's like a police chief insisting his department close at 5 p.m.

Keasler said he didn't want to pass judgment on Keller before talking to her, noting that she said she didn't know about the lawyers' computer problem.

"You can imagine the last-minute appeals if everybody said, 'I'll get there in a little bit, just hold it up for me.' You'd be holding up until doomsday," Keasler said.