During Presiding Judge Sharon Keller’s tenure, the Texas Court of Criminal Appeals has been derided for seeing no harm when lawyers commit obvious errors. In its zeal to uphold convictions come what may, the court has been scolded by the U.S. Supreme Court for not following precedent.
But for sheer myopia, it’s hard to top Keller’s refusal to keep the court open long enough to accept an emergency appeal from a Death Row inmate about to be executed.
Even Keller’s fellow judges were dumbfounded by her rigidity.
There’s no question that rules exist for a reason. And justice does demand some finality.
But condemned killer Michael Richard’s attempted appeal on Sept. 25 wasn’t a baseless ploy to avoid execution for raping and fatally shooting Marguerite Dixon in 1986.
The last-minute scramble was set in motion by the U.S. Supreme Court’s announcement earlier in the day that it would use a Kentucky case to decide whether the three-drug execution cocktail used by 36 states, including Texas, amounts to unconstitutional cruel and unusual punishment.
Richards’ attorneys pulled together a petition arguing why the court’s action warranted a delay of his execution, set for 6 p.m. that day. Computer problems delayed printing of the materials, so the attorneys asked the appeals court to let them file 20 minutes after the regular 5 p.m. closing time. Keller refused.
She did it without consulting Judge Cheryl Johnson, who was assigned Richards’ case and who told the Austin American-Statesman that she would have accepted a last-minute filing, given that it was a death penalty case.
Keller did it without consulting Judge Paul Womack, who told the Houston Chronicle that he stayed at the courthouse until 7 p.m. anticipating a last-minute filing, given the Supreme Court’s action and the importance of the issue.
She did it even though courts often allow after-hours petitions under atypical circumstances. The Texas Supreme Court, which handles civil appeals, has stayed open for urgent filings in parental notification cases, a spokesman said.
Richard’s lawyers couldn’t get a stay of execution from the U.S. Supreme Court, probably because they hadn’t followed proper procedure by getting a Court of Criminal Appeals ruling first. So he was executed — the only inmate whose death sentence has been carried out since the justices said they would examine the lethal injection scheme.
Four other Texas inmates have since had their executions postponed until the Supreme Court rules.
In the meantime, the Texas Commission on Judicial Conduct will have to decide whether there’s merit to three formal complaints in which lawyers say Keller undermined public confidence in the judiciary.
The court itself ought to seriously consider starting an electronic filing system, as 300 lawyers have asked.
From her few public comments, Keller doesn’t appear to be soul-searching about her actions. But Texans can do it for her: Courts, she should be reminded, do justice by ruling fairly on vital issues that come to their door — not by pretending there’s no one there.
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