Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

October 29, 2007

“MISTAKES” IN A LAST-MINUTE DEATH APPEAL

Grievances Filed by Criminal Attorneys across the State; Intentional mishandling of the request for an extension of the filing deadline by Judge Sharon Keller reflects the mean-spirited, biased, and callous nature of not only those who advocate but those who enforce the ultimate punishment.

Last minute appeals for a stay of execution are inevitable in death penalty cases. It is part of the death drama. At times these frantic attempts to stop the State from extinguishing a human life have disastrous consequences.

On September 25, 2007 Michael Wayne Richard was scheduled to be put to death by lethal injection in the Texas death chamber at the Huntsville state prison. He was the only inmate in the nation scheduled for execution that day.

Twenty years earlier, Richard had been found guilty of the rape and murder of Marquerite Dixon in Harris County. He had been offered a plea bargain but rejected the deal in favor of trial. He rolled the dice and lost.

On the morning of September 25, 2007 the United States Supreme Court granted certiorari in the case of Ralph Baze and John C. Bowling, two convicted double murderers, who challenged the constitutionality of lethal injection as it is administered in the State of Kentucky.

This action by the Supreme Court paved the way for Richard’s attorney, David Dow, to seek a stay of execution for his client’s scheduled 6:00 p.m. execution. Dow, who runs the Texas Innocence Network at the University of Houston Law Center, and others began scrambling to prepare a 108-page petition in support of the request for a stay.

The Clerk’s Office for the Texas Court of Criminal Appeals closes at 5:00 p.m. That is the “filing deadline.” The court has a strict policy disfavoring late filings. The Richard legal team was aware of this policy, adding a sense of urgency to their need to not only get their legal documents timely filed with the appeals court but to allow time to submit a stay request directly to the U.S. Supreme Court should the state request be denied.

Judges with the Court of Criminal Appeals anticipated a stay request in the Richard case. Judge Paul Womack stayed late at the court just for that reason.

“It was reasonable to expect an effort would be made with some haste in light of the Supreme Court (action),” Womack told the Houston CHRONICLE. “It was an important issue. I wanted to be sure to be available in case it was raised.”

Judge Cheryl Johnson had been assigned to handle any late motions by Richard’s attorneys. She was present at the court to entertain those motions.

Judge Cathy Cochran left the court early, but only because she knew other judges and court personnel were on hand to deal with the Richard case.

“A number of judges stayed very late that evening, waiting for a filing from the defense attorney,” Cochran told the CHRONICLE. “I would definitely accept anything at any time from someone who was about to be executed.”

Then the unexpected happened. The computers being utilized by Richard’s attorneys to prepare that 108-page petition “crashed.” By the time the computer glitch was corrected, it had become apparent that the attorneys could not meet the 5:00 p.m. filing deadline. Dow called the clerk’s office, and, according to the attorney, informed “someone” in the clerk’s office about the computer problem and requested that the clerk’s office stay open for an additional twenty or thirty minutes.

“Someone” in the clerk’s office informed Presiding Judge Sharon Keller about Dow’s request to keep the clerk’s office open for the additional period. Without consulting with the other judges, including Judge Johnson who had been assigned the Richard case, Judge Keller refused to extend the 5:00 p.m. filing deadline.

It is unclear from the public record whether Richard’s defense team attempted to secure a stay from the U.S. Supreme Court. The CHRONICLE reported that “lawyers said that without a ruling by the Texas Court of Criminal Appeals on Richard’s appeal, the U.S. Supreme Court couldn’t consider it.”

Richard was executed as scheduled.

“I’d like my family to take care of each other,” he said before his death. “I love you, Angel. Let’s ride. I guess this is it.”

He was pronounced dead at 8:23 p.m., becoming the 47th person executed in America, and the 26th executed in Texas, in 2007.

In the wake of the Richard execution, Judge Keller came under state and national criticism for her refusal to extend the 5:00 p.m. filing deadline.

“You’re asking me whether something different would have happened if we had stayed open,” Keller told the CHRONICLE, “and I think the question ought to be why didn’t they [Richard’s attorneys] file something on time? They had all day.”

Dow called Keller’s reasoning “outrageous.” Keller defended her position, saying that the lawyer did not give “a reason” for the request for more time. Dow refuted this, saying that he informed the clerk’s office about the computer problem.

Jim Harrington, director of the Texas Civil Rights Project, was quick to launch his criticism against Keller for refusing to extend the filing deadline.

“When I saw that, I think I would just describe my reaction as ‘stunningly unconscionable’,” Harrington told the CHRONICLE. “There has to be some kind of accountability for this.”

Judge Johnson said he learned about Keller’s decision from the Austin AMERICAN-STATEMAN, and was in “utter dismay.”

“And I was angry,” she told the CHRONICLE. “If I am in charge of the execution, I ought to have known about these things, and I ought to have been asked whether I was willing to say late and accept those filings.”

The defense team may also face criticism for not contacting Judge Johnson directly. Dow said he spoke to “someone” in the clerk’s office and informed that “someone” of the computer problem. At 4:30 p.m., the question that could have been asked by Dow of the clerk’s office was the name of the judge assigned to handle the Richard case. The attorney should have requested, and probably would have been granted, a telephone conference with Judge Johnson. There is more than a reasonable probability that she would have ordered the clerk’s office to accept any late filing by the defense team, given the gravity of the issues involved. It seems unfathomable that a fair and impartial judge, without a warped amoral political agenda, would not have allowed a late filing.

The misjudgments of the Richard defense team notwithstanding, Judge Keller’s refusal to extend the filing deadline was, to say the least, callous, inhumane and more probably “stunningly unconscionable” as Jim Harrington said. CHRONICLE columnist Rick Casey had this to say about Keller:

“Sharon Keller, Texas’ top judge on criminal matters, may have shocked much of the nation …. when she ordered a clerk not to stay open an extra 20 minutes to accept a last-minute appeal for a man on death row.

But she didn’t shock those who know her.”

Twenty Texas lawyers recently filed a formal judicial misconduct complaint with the Court of Criminal Appeals against Keller in the wake of the Richard execution. The complaint, according to press reports, accuses the state’s top judge of violating the executed man’s constitutional rights.

“Judge Keller’s actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution,” the complaint states. “Her actions also brought the integrity of the Texas judiciary and her court into disrepute …”

The complaint was signed by Broadus Spivey, former president of the state’s bar association; Houston criminal defense attorney Dick DeGuerin; University of Houston law professor Mike Oliva; former appellate judge Michol O’Connor; state Rep. Harold Durton, D-Houston; and former Nueces County Attorney Mike Westergreen. These lawyers are being represented in the complaint by Jim Harrington

“I think it’s probably reflective of her own personal bias in this case about capital punishment and her lack of respect for the rights of defendants, the rights they have under the constitution,” Harrington told the CHRONICLE.

In yet another area, Texas Attorney General Greg Abbott came under criticism from two former Texas attorney generals: Mark White and Jim Mattox. White charged that Abbott, as an officer of the court, “should have been obligated to ask for a stay” of Richard’s execution.

Pointing out that he once ordered an execution halted over objections of prison officials because he knew a reprieve would be issued, Mattox said that “when the state is all powerful, the state has got to be cautious in how its uses is power. Sometimes you do things not to protect the individual but to protect the system itself.”

Michael Wayne Richard accomplished more in death that he could have ever imagined in his life time. His execution has stirred the death penalty debate beyond the constitutional issue of whether lethal injection inflicts unnecessary pain and suffering on condemned inmates. The mishandling of the request for an extension of the filing deadline by Judge Keller reflects the mean-spirited, biased, and callous nature of not only those who advocate but those who enforce the ultimate punishment.

The government has no place in the death penalty business. While our legal system remains the best and last obstacle between a dictatorial, blood thirsty government and its people, there remain major flaws in the system which allows the death penalty to be administered in an inconsistent and often flawed manner. Defense lawyers representing those accused of capital crimes are underpaid and often out-gunned. State experts, coroners, and crime lab employees lie and cheat. Prosecutors often don’t care or turn a blind eye to the truth. Juries sometimes get it wrong. Judges can be mean-spirited, biased, callous and politically driven. Given all these potential areas for mistake, how can a society that proclaims such respect for due process, fair play and the sanctity of human life continue to support the death penalty?

1099 individuals have been executed in the United States since 1976 (when the nation’s moratorium on the death penalty ended) – 405 of them in the State of Texas alone. These statistics shockingly reveal that one state has executed nearly half of all the people put to death in this country over the last three decades. Such bloodletting not only breeds contempt for the sanctity of human life but instills disrespect for the constitutional rights of those facing this capital punishment.
next...»

[ Back to top ]