Chuck Lindell broke the story in the Austin American-Statesman about why the Court closed its door at 5:00 p.m., on September 25, denying an appeal to Michael Richard. Peggy Fikac adds new details in "One justice shut door on appeal of execution." It appears in both the San Antonio Express-News and the Houston Chronicle.
Texas Court of Criminal Appeals judges were ready to work late the evening Michael Richard was executed.
They were expecting an 11th-hour appeal that — unbeknownst to them — Presiding Judge Sharon Keller refused to allow to be filed after 5 p.m.
That's according to two judges, one of whom stayed until 7 p.m. Sept. 25 and one who left early but was available. Other judges also stayed.
They expected Richard's lawyers to file an appeal based on the U.S. Supreme Court's decision earlier in the day to consider a Kentucky case challenging the constitutionality of lethal injection.
"There were plenty of judges here, and there were plenty of other personnel here," said Judge Cathy Cochran, who had to go home early that day but was available. "A number of judges stayed very late that evening, waiting for a filing from the defense attorney."
Cochran said, at the least, a decision should have been made by the full court on whether to accept the appeal.
"I would definitely accept anything at any time from someone who was about to be executed," she said.
Judge Paul Womack said, "All I can tell you is that night I stayed at the court until 7 o'clock in case some late filing came in. I was under the impression we might get something."
Keller didn't consult the other judges about taking the appeal after 5 p.m. and said she didn't think she could have reached them. She said, however, that Judge Cheryl Johnson, who was assigned the case, was at the court. Johnson didn't return a phone call.
Keller voiced no second thoughts more than a week after her decision.
And:
David Dow, an attorney in the case who runs the Texas Innocence Network at the University of Houston Law Center, called Keller's statement outrageous, noting that lawyers had to decide legal strategy and then craft a filing about why the case before the U.S. Supreme Court case applied to Richard's arguments.
The reason behind the request for the delay was a severe computer problem, Dow said. He said he told the court clerk about the problem. Keller said the lawyers didn't give a reason.
Dow also said the court won't accept a filing by e-mail. If it did, he said, lawyers could have met the 5 p.m. deadline once they beat their computer problem, because printing the filing took extra time. The lawyers needed about another 20 minutes.
Lindell's article is here from this post. A Dallas Morning News editorial on the topic is here.
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