Texas Court of Criminal Appeals Presiding Judge Sharon Keller has been the source of well-earned national contempt since she ordered the doors of the court clerk’s office to prevent a last-minute appeal in a death row row — an appeal that should have been granted but was denied and Michael Richard executed. Now, she admits to violating court procedures and has announced written rules to prevent other judges from doing the same thing. Presumably, the written rules will prevent others from abandoning fundamental standards of due process and decency, as she did.
Keller admits that unwritten policies existed that should have prevented her closing the clerk’s doors to bar the filing. Indeed, she was not the judge assigned to handle Richard’s appeal. The appeal should have gone to Judge Cheryl Johnson but Johnson did not learn of the attempts to file for a stay of execution until the day after his death. Two of the court’s other judges, Paul Womack and Cathy Cochran, also were available to handle the appeal. They also never heard about Richard’s attempt to appeal until after his execution.
The filing had considerable merit. Cases around the country are on hold after the Supreme Court decided to review the constitutionality of the method of execution in lethal-injection cases. The Court took the case on the day of Richard’s planned execution. Due to computer problems, Richard’s lawyers asked the clerk’s office to stay open to allow for a late appeal, but Keller ordered the doors closed at 5 pm and Richard was executed three hours later for a 1986 rape and murder.
The question now is what to do with Judge Keller. Outraged lawyers in Texas have filed complaints against Keller with the State Commission on Judicial Conduct. It appears that Keller has neither the judgment nor temperment for service on the bench. This was not some small matter that could be address in later proceedings. She knowingly acted to prevent access to the court in a final death row appeal. Richards was executed due to her misconduct. This is not to say that he would not have been executed in the passage of time. It is very unlikely that the Supreme Court will strike down lethal injection as a method of execution — though it may demand changes in the chemical mix used in the execution. But this is not the point. If the perceived inevitably of execution were the standard, we would need no procedures or judicial review.
Whether it is hostility to criminal defendants or a grotesque notion of court efficiency, it may be time for Judge Keller to return to private practice.
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