A reminder that Chuck Lindell is updating coverage at the Austin American-Statesman Focal Point blog. Texas Lawyer is also posting updates at its Tex Parte Blog.
"Judge says she would do 'nothing different'," is Chuck Lindell's report in today's Austin American-Statesman.
Calling the allegations against her "false in every way," Judge Sharon Keller concluded testimony at her misconduct trial Wednesday by saying she would have done nothing different on Michael Richard's execution-day appeal.
Keller, the presiding judge of the state's highest criminal court, showed a forcefulness that was missing in her testimony Tuesday. She accused Richard's lawyers of lying, insisting that she did not close her court to the inmate's after-hours appeal and verbally sparring with a prosecutor throughout her time on the stand.
"I was doing exactly what I was supposed to," she said.
The potentially career-ending charges accuse Keller of incompetence in office, bringing discredit to the judiciary and failure to protect Richard's right to have a valid grievance heard in court when she denied a request from the inmate's lawyers to file briefs after 5 p.m. on Sept. 25, 2007.
Richard was executed that night.
Keller, one of nine judges on the Court of Criminal Appeals, denied every charge and turned criticism back onto Richard's lawyers.
And:
Also Wednesday, the court heard the videotaped testimony of Ed Marty, the now-retired general counsel for the Court of Criminal Appeals.
Deposed this month, Marty said he told another judge — Cheryl Johnson — that Richard's lawyers had asked the court to stay open late.
Johnson, the judge assigned to handle any late appeals from Richard, disputed Marty's account in her testimony Monday, saying she didn't learn of the request until days after Richard's execution.
Deposed in Alabama, where he now lives, Marty showed a fuzzy memory for details and offered contradictory recollections of his conversation with Johnson — insisting that he told her about the request for more time before Richard was executed, then later saying he couldn't be sure he did.
"You really don't have a memory of what you said to Judge Johnson on Sept. 25, 2007, do you?" said Austin lawyer Mike McKetta, acting as examiner, or prosecutor, in the case.
"That is correct," Marty said.
Yet under questioning from defense lawyer Chip Babcock, Marty insisted that Johnson confirmed the conversation in a meeting with two other court judges, Cathy Cochran and Tom Price, six days after Richard's execution.
"She said that in your presence right?" Babcock asked. "Yes," Marty replied.
Neither Cochran nor Price were called to testify at Keller's trial.
Michael Brick writes, "Texas Judge Denies Fault in Handling of Appeal," for today's New York Times.
The case against Judge Keller, a civil fact-finding procedure that could result in a recommendation for censure or removal, concerns a brief telephone exchange on the afternoon of the execution.
But to some, it has become a referendum on the career of Judge Keller, a former member of the Dallas County district attorney’s office who was elected to the court in 1994 on a pro-prosecution platform and was later elevated to presiding judge.
Through rulings favorable to prosecutors in capital cases, Judge Keller has drawn criticism in the form of editorials, a critical Web site, a legislative proposal and even a song, “Sharon Killer,” by the band Possumhead.
Testimony in the case has centered on the afternoon of Sept. 25, 2007. By all accounts, Judge Keller left her office around 4 p.m. That morning, the United States Supreme Court had effectively suspended lethal injection nationwide. Mr. Richard, whose own appeals to the Supreme Court had been rejected, was scheduled to die that evening for killing a 53-year-old nurse in the course of a sexual assault. An assigned duty judge was waiting at the Texas courthouse to accept any after-hours filings, standard procedure for an execution day.
Based on the action by the Supreme Court, lawyers for Mr. Richard were working on arguments to delay his execution. Around 4:45 p.m., the general counsel for the Texas court called Judge Keller at home to relate a request from Mr. Richard’s lawyers to file paperwork after 5 p.m. Judge Keller, by all accounts, indicated that the clerk’s office closed at 5 p.m.
Based on that conversation, the State Commission on Judicial Conduct accused Judge Keller of intentionally circumventing the standard procedures for execution days. In the view of the commission, Judge Keller ordered a court employee to reject any after-hours filings from Mr. Richard’s lawyers. In her own view, as described in written arguments, Judge Keller merely confirmed the usual business hours of the court clerk’s office.
A lawyer for the commission, John J. McKetta, roamed the courtroom rubbing his chin, affecting a puzzled look. Was it a part of her judicial duties, Judge Keller was asked, to follow normal execution day procedures?
“I had a responsibility to understand how executions were conducted,” Judge Keller said, “and I did.”
Why, she was asked, were the procedures never written down until a few months after the execution of Mr. Richard?
Judge Keller called the procedures “an oral tradition.”
Directly accused of denying Mr. Richard and his lawyers a grace period, Judge Keller said: “That is not true. I declined to keep the clerk’s office open past closing time.”
After lunch break, Judge Keller took questions from her lawyer, Charles L. Babcock. She gave a brief account of her background as a cashier at her father’s hamburger shop in Dallas, scholarship student, philosophy major, lawyer and judge.
"Judge stands by actions on execution," is Craig Kapitan's report in both the San Antonio Express-News. The Houston Chronicle carries the article with the headline, "Keller says she would do nothing different."
The presiding judge of the Texas Court of Criminal Appeals told a crowded courtroom Wednesday she would do nothing different if confronted again with a request to keep the clerk's office open for a last-minute appeal from a death row inmate.
“Yes, that is correct,” Judge Sharon Keller said from the witness stand when asked if she would respond the same as she did Sept. 25, 2007, the day death row inmate Michael Richard was executed after being denied a request to file an appeal after 5 p.m.
Immediately after her answer, special prosecutor Mike McKetta said: “Pass the witness.”
And:
After Keller finished testifying Wednesday, prosecutors then played a taped deposition from Marty before resting their case.
Marty, who's retired and living in Alabama, gave a somewhat more remorseful answer when asked if there was anything he would have done differently about the conversation.
He said he had hoped Keller would agree to let the clerk accept the filing late, but once he received her answer, he felt there was nothing more he could do.
He wasn't allowed to contact litigants unless they called him, he said, and the chain of command prevented him from approaching another judge.
“I regret that I didn't really know how to advise Judge Keller,” he said, adding that he still isn't sure what he could have done once she gave an answer.
He suggested he could have placed more emphasis on the word “clerk” when relaying the message to deputy clerk Abel Acosta that “the clerk's office closes at 5.”
That emphasis, he said, might have been “a hint to (Richard's attorneys) that that's magic language.”
Marty also discussed in the deposition a memo he wrote a month after Richard's execution because he was “starting to forget things.”
In it, he said he told Johnson on the night of the execution that Richard's attorneys had called and wanted to file late, but the clerk's office closed at 5 and it was too late. Her only response, the memo states, was: “Thank you.”
If that's the case, the fault for not accepting an appeal would be Johnson's, said Keller's attorney, Chip Babcock.
But Marty's recollection has changed multiple times over the past two years — including an interview he gave under oath two months after the execution in which he didn't mention telling Johnson about the request, according to prosecutors.
He agreed in the deposition that he's given several versions of events — each of which he thought was truthful at the time.
“You can make up stuff in your mind,” Marty acknowledged at one point when shown contradictions. “I've tried to avoid that, but I must be in that box right now.”
The Dallas Morning News carries the AP report, "Judge Sharon Keller testifies she would still close before death-row appeal."
Keller, a Republican and former Dallas County prosecutor, is facing five counts of judicial misconduct that could lead to her removal from the bench. She is the highest-ranking judge in Texas ever put on trial by the state Commission on Judicial Conduct.
At the end of the trial, a state district judge presiding over the hearing will submit a report to the state's judicial conduct commission.
That panel will have the choice to dismiss the charges, issue a censure or recommend Keller's removal from the bench.
Earlier coverage begins with this post. The charges brought by the Commission on Judicial Conduct is here.
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