Houston Chronicle Editorial Board
February 25, 2009
It was late afternoon, and a repairman was due at her house. This is what apparently was on the mind of Judge Sharon Keller, the state’s top criminal judge, on the 2007 day that murderer Michael Wayne Richard was slated to die. So shortly before 5, when Richard’s attorneys asked for an extra few minutes to file an appeal, Keller defied execution day procedure and refused. She told her clerk to say the court closed at 5.
It is too late for rule of law to apply to Michael Wayne Richard. But it must be applied to Keller, whose deformed ethical compass makes her unfit to judge. If a new state probe of her conduct fails to prompt her removal, the Legislature should impeach her.
More than a year after her cavalier actions shocked the country, Keller has finally been called to account for her actions. Last Thursday, the state Commission on Judicial Conduct announced judicial proceedings against her, charging “willful or persistent conduct that casts public discredit on the judiciary.”
Also last week, State Rep. Lon Burnam submitted a resolution to impeach Keller, citing “gross neglect of duty” and “willful disregard for human life.”
All three descriptions are accurate. On any given execution day, Texas courthouses are active places. Because of the chance for last-minute appeals, courthouses don’t have a strict closing time, judges work late and judges often hear last-minute pleadings from home, the Dallas Observer notes.
After all, a human life is at stake.
On the day of Richard’s execution, there was even more happening. That morning, the U.S. Supreme Court announced its decision to review the constitutionality of lethal injection — to which Richard was sentenced. This announcement created a de facto death penalty moratorium nationwide. But because the decision came late, Richard’s attorneys had to scramble, deciding how the news could be used in a workable appeal.
When their computer crashed that afternoon, however, the attorneys had the misfortune of calling a judge who cared not for legalities — but for punishment. Ignoring court procedure, Keller shut the door on them.
In retrospect, this might be expected of a judge who campaigned on the promise of being “pro-prosecution.” But the Texas justice system, which kills so many and has mistreated even more, cannot continue to bear that same label.
Removing Judge Sharon Keller will show the many watching this state that Texans don’t thirst for blood, but for justice.
The below editorial was published in 2007.
The events of Sept. 25 have put a stain on Texas justice that can only be cleansed by the removal of Chief Justice Sharon Keller from the Texas Court of Criminal Appeals.
On that day, Judge Keller let her personal bias in favor of the death penalty trample the right of now-executed prisoner Michael Richard to access the courts and have due process. In doing so, she abdicated her role as the state's chief criminal justice to become its chief executioner.
As laid out in a complaint to Texas' State Commission on Judicial Conduct signed by 20 distinguished Texas attorneys, including Houston's Dick DeGuerin and University of Houston Law Center professor Michael Olivas, Judge Keller's actions were legally inexcusable. The plot line could be straight from a Law and Order episode, with the twist that in this case it was the justice who committed the injustice.
After the U.S. Supreme Court agreed to consider a challenge to the constitutionality of lethal injection, attorneys for Richard, a convicted murderer, had less than a day to craft an appeal for a stay of execution pending resolution of the issue before the high court. A ruling by the Texas court was necessary before the U.S. Supreme Court could consider his appeal.
Because of computer problems, Richard's lawyers requested that the Court of Criminal Appeals remain open past 5 p.m. to take the last-minute appeal. The judge assigned to the case, Cheryl Johnson, and two other judges had stayed late, anticipating that an appeal might be forthcoming before the execution scheduled later that evening. Without informing them of her decision, Judge Keller refused to allow the appeal to be filed after 5 p.m. Richard was executed hours later.
Even Keller's court colleagues expressed dismay at her actions. Justice Johnson was quoted in the complaint as angry, because "if I'm in charge of the execution, I ought to have known about these things, and I ought to have been asked whether I was willing to stay late and accept those filings." She indicated she would have accepted the brief, "because this is a death case." Justice Paul Womack told the Chronicle he waited in his office till 7 p.m. because "it was reasonable to expect an effort would be made in some haste in light of the Supreme Court. I wanted to be sure to be available in case it was raised."
Justice Keller's response to the uproar was that the lawyers should have filed the appeal on time. After all, she said, "they had all day." When an irreversible action like an execution is only hours away from occurring, Keller's adherence to a 9 a.m.-to-5 p.m. justice schedule is mind boggling. Civil judges are available at all hours to sign temporary restraining orders as are criminal judges to approve search warrants. Yet in the taking of a life, the most profound action a judge will ever be involved in, Keller wants to stick to banker's hours.
The irresponsibility of Keller's behavior was highlighted by subsequent legal developments. Two days after the Richard execution, the Supreme Court stayed the execution of another Texas prisoner, Carlton Turner. Although his appeal had been denied by the Texas court, the fact that it was heard allowed the high court to act.
Then the Court of Criminal Appeals stayed the scheduled execution of convicted murderer Heliberto Chi, effectively signaling a halt to death by injection in the state until the high court rules on its constitutionality.
Just as Turner and Chi were spared pending the resolution of the issue, so Michael Richard should be alive today. 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.
Locking justice's door / Texas Court of Criminal Appeals chief justice's unethical, outrageous blocking of a death row appeal merits the most severe legal sanctions.