Texas judge accused of misconduct says closing court before death-row appeal wasn’t a decision

Judge: Closing court before appeal wasn’t a ruling

SAN ANTONIO — A Texas judge on trial for closing her court despite knowing that a death-row inmate’s final appeal was running late testified Tuesday that denying a request to stay open was no judicial ruling on her part.

“I did not believe I was making a decision,” said Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals.

Speaking publicly about the case for the first time since Michael Wayne Richard was executed in 2007, Keller said she was told the last-minute filing to the appeals court wasn’t ready, but didn’t get a reason why.

Keller said she didn’t think the request for more time was a substantive question relating to the merits of an appeal. Under the court’s execution-day rules, any communication about the execution is supposed to be referred to the assigned judge on duty.

“I think it’s a close call,” Keller said. “I think it was not a substantive matter but I can understand why people say it was.”

Keller got a phone call about 4:45 p.m. from a court staffer asking if the court would stay open past its normal closing time of 5 p.m. Twice in the conversation she said no.

Keller, wearing a bright orange jacket and skirt, testified for more than hour before court adjourned. Her testimony is scheduled to resume Wednesday.

The presiding judge of the state’s highest criminal appeals court, Keller is accused of denying Richard access to the court to file an appeal with his execution imminent. She is facing five charges of judicial misconduct that could lead to her removal from the bench.

Keller is the highest-ranking judge in Texas to be put on trial by the state Commission on Judicial Conduct. The courtroom had far fewer observers Tuesday than on the first day of her trial, when protesters and death penalty opponents greeted her at the courthouse.

Keller has been mocked by critics as “Sharon Killer” for her tough-on-crime reputation cultivated from the bench.

She testified that when she told Ed Marty, the court’s former general counsel, that the court should not stay open late on Sept. 25, 2007, she knew no details about the condemned inmate scheduled for execution that night.

Keller said she was given no reason why the appeal was running late. Richard’s attorneys say they couldn’t get the appeal to the courthouse by 5 p.m. because of computer problems earlier in the day.

“I didn’t know they were having trouble,” Keller said. “I knew they wanted us to stay after and I knew they weren’t ready to file.”

Richard was executed for the 1986 rape and killing of a Houston-area nurse and mother of seven. He was convicted twice and had multiple appeals rejected before his attorneys saw a new window for a reprieve on the day of his execution.

Earlier that day, the U.S. Supreme Court agreed to review the legality of a three-drug combination used in Kentucky executions, which is a lethal cocktail similar to what is used in Texas.

Keller began testifying after a tense cross-examination of attorney David Dow, who defended his efforts to file a late appeal for Richard in the hours leading up to the execution.

Dow said that upon being told the clerk wouldn’t accept any filings past 5 p.m., he presumed he was out of options.

“I think I was denied,” Dow shot back after Chip Babcock, Keller’s attorney, implied that Richard’s appeal never was refused.

“I think the clerk’s office is the court,” Dow said. “I think most lawyers assume the clerk is the court. I don’t draw a distinction between a clerk’s office and the court the way you do.”

Babcock told Dow he could have filed an appeal directly with any judge on the nine-member court, and criticized him for not trying to contact a judge.

He also accused him of stoking nationwide interest in the case by making inaccurate comments in the media. Among the charges Keller faces is bringing discredit to the court over the publicity surrounding the case.

After Dow acknowledged that he confused one detail with a later death-row case in an opinion piece he wrote, Babcock mocked him.

“Isn’t one of the first laws of lawyering and scholarship to be precise in what you write?” Babcock asked.

Dow agreed he should have been more careful.

“If you had been more precise, perhaps Judge Keller wouldn’t be going through this right now,” Babcock said.

Dow became irritated again when Babcock questioned him about the computer problems Dow said his legal team had.

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