AUSTIN – On Aug. 16, Texas Supreme Court justices denied emergency relief to Criminal Appeals Presiding Judge Sharon Keller in her bid to erase a public warning over her conduct on the occasion of a killer's execution.
Though the justices won't treat it as an emergency, they will continue considering her petition for a writ of mandamus against the Commission on Judicial Misconduct.
Her lawyer, Charles Babcock, claims the commission "trod upon the Constitution in its quest to punish a popularly elected judge for performing her duties."
He pleads that a four-day trial on Keller's conduct ended in her favor.
Commissioners issued the warning on July 16, "in lieu of removal."
They found Keller did not accord the late Michael Richard access to open courts or the right to be heard, failed to cooperate with other judges and court officials, failed to require fidelity and diligence from her staff and that her willful or persistent conduct cast public discredit on the judiciary.
Richard faced lethal injections on a jury conviction from a murder in 1986.
On his execution date, Sept. 25, 2007, the U. S. Supreme Court announced it would review the constitutionality of lethal injections in a Kentucky case.
In states that used injections, lawyers for Death Row prisoners moved to delay executions pending a Supreme Court ruling.
Eventually, every prisoner who sought a delay would obtain it.
Richard, however, died on schedule.
His lawyers at Texas Defenders Service blamed Keller, telling reporters she wouldn't let them file papers after 5 p.m.
Lawyer David Dow said they couldn't file by 5 due to computer problems.
He told the Dallas Morning News, "I think that Michael Richard got executed because the Court of Criminal Appeals couldn't be bothered to stay open 20 minutes late so we could get all our briefs in."
He repeated it to other papers as the story spread.
An examiner at the Commission on Judicial Conduct brought charges against Keller, and commissioners appointed David Berchelmann as special master.
After four days of trial last August, Berchelmann held that Texas Defenders Service bore the bulk of the fault for what occurred.
"TDS has only itself to blame for not having the pleadings prepared by five," Berchelmann wrote in January.
"Dow stated in news reports that TDS lawyers pleaded with Judge Keller to stay open to allow the filing, but TDS paralegals, not lawyers, were the ones to call the deputy clerk to ask about filing the papers after five," he wrote.
Evidence demonstrated that lawyers weren't ready to file until 5:56 p.m., he wrote.
"Dow has now admitted that his quote inaccurately represented what actually occurred that day," he wrote.
Berchelmann found no evidence that computer issues slowed the lawyers down.
"These distortions effectively placed blame on Judge Keller for Richard's execution that day," he wrote.
"Before Judge Keller faced official charges of judicial incompetence, the TDS in essence tried this case through the media."
He wrote that charges against her "largely rest on what ended up being misleading media reports, which started from Dow's inaccurate statements in the press and spun out of control."
Lawyers didn't start contemplating action until more than two hours after the Supreme Court agreed to hear the Kentucky case, Berchelmann wrote, and then they assigned a junior attorney to draft the necessary papers.
According to Berchelmann, Richard's lawyers didn't have the first document ready until 4:45 p.m., and they didn't have the rest ready until 5:56 p.m.
They failed to pursue all possible ways to file the claim, he wrote.
If they had called the chambers of each Criminal Court of Appeals judge, he wrote, they would have found one to accept a late filing.
Instead, he wrote, they relied on paralegals to communicate with the court.
But Berchelmann did not let Keller off the hook either.
"Judge Keller certainly did not exhibit a model of open communication," he wrote.
She should have told general counsel Ed Marty to notify Judge Cheryl Johnson that TDS called, he wrote.
"She also could have called Judge Johnson herself, for she knew that Judge Johnson was the assigned judge for the Richard matter that day," he wrote.
Berchelmann wrote that Keller should have spoken up in a conference the next morning when colleagues expressed surprise that Richard didn't file anything.
Her silence ran contrary to ideals of judicial collegiality, he wrote, but it didn't impact the ability of lawyers to file a pleading before the execution.
"Although she says that if she could do it all over again she would not change any of her actions, this cannot be true," he wrote.
"Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice.
"But Judge Keller's omission did not cause the TDS to be late in its filing, to forget the other available avenues, or to fail to have any of its experienced lawyers contact the TCCA."
He added that Keller did not violate any written or unwritten rules or laws and her conduct did not warrant removal from office or any further reprimand beyond the public humiliation she suffered.
The Commission on Judicial Conduct agreed that her actions didn't warrant removal, but they disagreed on the need for further reprimand.
In their public warning, they found she failed to follow execution day procedures.
For Keller, Babcock petitioned the Supreme Court of Texas for an emergency stay and a writ of mandamus on July 29.
Babcock argued that commissioners found facts directly contrary to Berchelmann's facts. He also challenged the eligibility of some commissioners.
He asked the justices to declare the warning void and order the commission to expunge it from its records.
On Aug. 6, commission counsel Mike McKetta answered that the Supreme Court lacks jurisdiction to grant the relief Keller seeks.
He wrote that commissioners acted lawfully and followed Supreme Court rules.
Keller can demand trial before a special court of review, McKetta wrote.