Meet Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals. She recently got into some trouble, but not enough trouble, for the way she handled the case of a death row inmate. She was disciplined for her misconduct with a PUBLIC WARNING which sounds a lot like "just don't do it again. Ok?"
What did she do? She let an inmate die when he had a meritorious claim for a stay of execution.
She fought the "PUBLIC WARNING" discipline all the way to the Texas Supreme Court which denied relief. Surprisingly, she wasn't removed from office. I guess it will be for the voters to decide if she should stay because the mechanism to remove a bad judge just didn't work in this instance.
On September 25, 2007 at any time after 6:00 P.M, convicted murderer Michael Wayne Richard was scheduled to be strapped to a gurney and injected with lethal drugs. As is common in cases where an inmate faces imminent execution, defense lawyers make an extraordinary effort to block the execution through the state and federal courts. An inmate can request a stay from the United States Supreme Court but that court will not grant one if the inmate fails to apply first in the state's highest court, in Richard's case the Texas Court of Criminal Appeals.
Here's what happened on September 25. The United States Supreme Court granted certiorari in the case of Baze v. Rees which posed a challenge to the lethal injection protocol used in Kentucky, the same protocol used in Texas and most other states. Keller and her colleagues learned about the Supreme Court's order sometime during the day on September 25. In the disciplinary proceedings, Keller admitted that she was aware of Baze. She was also aware of the scheduled execution of Michael Wayne Richard.
The Court of Criminal Appeals has an "execution day" procedure under which any request for a last minute stay is presented to a duty judge who is in charge of receiving all filings and coordinating with fellow judges to vote on stay requests. Sharon Keller was not the duty judge on September 25.
Richard's attorneys worked all day to prepare filings in the Texas Court of Criminal Appeals seeking a stay based on the Supreme Court's order in Baze. According to the attorneys, they ran into computer problems which delayed getting the paperwork to the court before the clerk's office closed at 5 P.M. They said they needed an extra 20 minutes and also offered to fax their papers to the court.
The clerk who answered the call was not familiar with the execution day procedure. Instead of presenting the attorneys' request to the duty judge who later testified that she would have granted time to get the paperwork in and would have voted to grant the stay, the clerk called Keller at home who instructed him to tell the attorneys "We close at 5." The clerk later testified that he did not alert other judges, including the duty judge who had stayed in the building after hours because of the pending execution, about what Keller had told him. He did not want to go behind her back.
Since the attorneys were foreclosed from presenting their stay application to the Texas Court of Criminal Appeals, the United States Supreme Court at about 8 P.M. denied Richard's application to that court. A few minutes later, the State of Texas executed Richard.
The following day, the Texas judges met in a conference and discussed how surprised they were that Richard had not filed for a stay in light of Baze. Instead of telling her colleagues what she had done, Keller remained silent during this discussion.
Two days later, the Supreme Court did grant a stay based on Baze to another Texas inmate scheduled for execution on September 27. And for the next seven months, there was a de facto moratorium on executions throughout the United States while Baze was under review. Ultimately, the court decided that the execution protocols were constitutional. But Keller deserves no credit on that score because she had no right to sabotage Richard's meritorious application for a stay on September 25 regardless of the eventual outcome in the Supreme Court.
Richard's family sued Keller for causing his death. Predictably, that suit was dismissed after Keller argued that she was entitled to judicial immunity, a doctrine which insulates judges from suits for damages despite how outrageous their conduct might be. Doctrines like judicial immunity make the work of judicial watchdog agencies charged with removing judges who are corrupt or incompetent that much more important considering the absence of any private remedy for judicial wrongdoing.
Keller certainly would have been within her rights to vote to deny a stay to Richard, as bad a choice as that might have been, but she was not entitled to shut out her colleagues' right to vote on that question nor did she have the right to play God and single-handedly deprive Richard of his right to have his case reviewed at all in any court.
I thought maybe Keller had a bad day and acted thoughtlessly. I combed the record for an excuse, anything that would make this outrageous situation understandable. But during the disciplinary hearing, she made no claim of mitigating circumstances. On the contrary, Keller testified that she wouldn't change a single thing she did on September 25. She also chided the defense lawyers, saying that she shouldn't have to keep her court open for lawyers who can't get their work done on time. In this instance she was talking about lawyers who had a few hours, not days, to construct legal arguments based on the Supreme Court's order in Baze issued at 9:30 that morning. And what to think about Keller's sense of proportion where, in her view, the remedy for lawyers being late is to kill their client rather than impose a sanction, say $500.
If we were talking about one of the brightest stars in the legal firmament and the conduct was wholly out of character, it might be understandable if the disciplinary authority selected a form of discipline short of removal. But Keller's testimony is the best evidence for not cutting slack. She single-handedly subverted the system of justice without the slightest expression of reflection or regret. Ironically, she rants that she was denied due process during the disciplinary proceedings. Denial of due process is a claim Michael Wayne Richard might understand even better than she does.
