That's the title of Michael Hall's latest Texas Monthly must-read, in the August issue. LINK Here's the opening:
The most infamous phone call in recent Texas history came on the afternoon of September 25, 2007, when, at 4:45, Ed Marty, the general counsel of the Court of Criminal Appeals, dialed Sharon Keller, the court’s presiding judge. Both were in Austin; he was at the courthouse and she had gone home earlier to meet a repairman. One hundred and forty miles away, at the Walls Unit, in Huntsville, Michael Richard (pronounced “Ree-shard”) sat in a cell adjacent to the execution chamber. He was scheduled to die that evening for a murder he’d committed in 1986. The CCA, the state’s highest criminal court and the final arbiter in all death penalty cases, was waiting for his last appeal.
But Marty had a question for Keller. It seemed that Richard’s attorneys were having some computer problems that were preventing them from getting their motion for a stay filed before the clerk’s office closed, at 5. They wanted to know if they could deliver it after-hours—5:15, 5:30 at the latest. Keller, who has been on the CCA since 1994 and the presiding judge since 2000, listened to Marty’s question. Under her leadership the court has been one of the more conservative in the country, developing a reputation, especially on the left, for rubber-stamping death sentences. Her reply would cement this: “We close at five.”
Keller’s statement was relayed to Richard’s attorneys, who were unable to meet the deadline. Just over three hours later, Richard was put to death. And that might have been the end of the matter, just another execution in Texas, number 405 since the reinstatement of capital punishment in 1982. But September 25 was no ordinary day. That morning the U.S. Supreme Court had decided to examine the constitutionality of the three-drug cocktail used in lethal injections, essentially putting a moratorium on executions that would last for six and a half months. Because of that decision, CCA judges and staff had braced themselves for an appeal from Richard’s attorneys, one they had been told was coming. Three judges were even waiting at the courthouse for it. One of them, Cheryl Johnson, was the designated duty judge, who, according to the court’s execution-day procedures, was in charge of the CCA’s response. But she was not informed of the phone call that afternoon between Keller and Marty.
In fact, Johnson found out about the conversation from a newspaper account four days later. She was furious, and her fellow judges were shocked. It wasn’t long before outraged lawyers and judges were signing petitions demanding that Keller be disciplined by the Commission on Judicial Conduct, a state watchdog group that has the authority to reprimand judges and recommend their removal from the bench. “I have never seen such a unanimous response from the legal profession,” said lawyer Broadus Spivey, a former president of the State Bar of Texas. The Dallas Morning News called Keller’s decision “a breathtakingly petty act [that] evinced a relish for death that makes the blood of decent people run cold.” Texas Monthly announced, “It is time for Sharon Keller to go.” It seemed that Keller, who had been so gung ho for so long about so many executions, had been caught closing the door on a dying man’s last request.
The CJC typically finds itself probing allegations of relatively minor infractions, such as sexual harassment or obscene language by justices of the peace. But in June 2008, it began to question a dozen of the players in the Richard drama, including Keller. In February of this year the CJC announced formal proceedings against her, making Keller the highest-ranking judge ever to be investigated by the group. The main charge was that Keller’s “failure to follow the CCA’s execution-day procedures” violated the Texas constitution (which states that a judge must not exhibit “willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary”) and the Code of Judicial Conduct (“a judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”).
Earlier coverage begins here. As I've noted in the past, Michael Hall and I are not related.
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