An Execution in Texas
 A Judge on the Hot Seat

In the afternoon on September 25, the clerk’s office of the highest criminal appeals court in Texas closed for the day at its usual time. That much is not in dispute.

But September 25 was not a usual day for the death penalty and post-conviction lawyers in Texas and throughout the Death Belt. That morning, the U.S. Supreme Court granted certiorari in Baze v. Rees, No. 07-5439. It was also the day that Texas inmate Michael Richard was scheduled to die by lethal injection.

Richard’s lawyers immediately decided to write a new appeal to the Texas Court of Criminal Appeals raising an Eighth Amendment claim since Texas’ lethal injection protocol is identical to the one the Supreme Court had agreed to scrutinize. But the problem of printing out the requisite 10 copies of their 100-page brief caused by a series of computer crashes at the Texas Defender Service office Houston. Richard’s lawyers called the clerk’s office in Austin three times to beg the court to stay open. The chief judge, Sharon Keller, ordered the office to close as scheduled, at 5:00. The appeal arrived between 5:20 and 5:30. The door to the clerk’s office was locked. Michael Richard was executed three hours later.

Neither Judge Keller nor the clerk’s office notified the other eight judges of the court of the request for a late filing. The  judge to whom Richard’s case was assigned, Judge Cheryl Johnson, expressed dismay and anger, telling the Associated Press, “If I’m in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings.”

In reply, Judge Keller conveyed that she was merely enforcing the court’s long-standing policy of closing on time. But one of her colleagues expressed concern because Richard’s case not only raised troubling issues, but the refusal to accept Richard’s filing cast poor light on the integrity of the Texas judicial process. Judge Cathy Cochran stated: “First off, was justice done in the Richard case? And secondly, will the public perceive that justice was done and agree that justice was done?”

In a San Antonio News article the next day, Judge Paul Womack was quoted as saying, “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.”

If proven as alleged, Judge Keller’s actions violated Richard’s constitutional rights to due process of law under the state and federal constitutions, Texas constitutional right to access to the courts and due course of law, and thereby expedited his death. They also comprised a failure in Judge Keller’s role as presiding judge to advise and engage the court in the exercise of its jurisdiction with regard to the most important cases that come before it. She usurped the authority of Judge Johnson, who held responsibility for the case. She scuttled the lawyers’ ability to act on behalf of their client and to present his legitimate claims, not only to the court of criminal appeals, but also to the U.S. Supreme Court. Most importantly , Judge Keller’s actions impugn the integrity of the judicial process.

When these allegations were presented to NACDL’s Board of Directors at the fall meeting in Key West, the Board voted to file and official complaint with the  State Commission on Judicial Conduct over my signature. It was sent by first class mail and a copy was hand-delivered on Oct. 23. To the best of my knowledge, this is the first time that NACDL has ever filed a judicial conduct complaint against s setting judge. Only a full and complete investigation of this incident will suffice. Was it a horrible clerical error or reckless indifference to human life? Whatever the findings of the judicial conduct commission, the handling of Mr. Richard’s case-and his death- will remain unacceptable.

On Oct. 30, the Supreme Court granted a stay of lethal injection for the Mississippi inmate Earl Berry. Two days later, the Florida high court held that lethal injection is not a cruel and unusual punishment  under the Eighth Amendment despite the highly publicized, agonizing 34-minute death of Angel Diaz last December. The needles were pushed all the way through Mr. Diaz’s veins, which released the poisons slowly into the muscles of his arms. In its Nov. 1 ruling, the court said that the state had adopted “additional safeguards” to ensure that the prisoner would be fully sedated with a large dose of Pentothal prior to the injections of the poisons that paralyze the muscles and stop the heart. The decision was unanimous, and is sickened me. On Nov. 15 the Supreme Court issued a stay five hours before Mark Dean Schwab was scheduled to be executed in Florida.