With judge on trial for misconduct, lawyer for executed man defends efforts to file appeal

Lawyers spar in trial of judge over death-row case

SAN ANTONIO — An attorney for a death-row inmate defended the efforts he made to file a last-minute appeal as he testified Tuesday in the trial of a judge accused of misconduct for closing her court before the condemned man’s request was received.

David Dow replied in sharp, sometimes irritable answers while Judge Sharon Keller’s lead defense attorney accused him of not trying harder to file an appeal before Michael Wayne Richard was executed later that night.

Keller refused to keep the clerk’s office at the Texas Court of Criminal Appeals open after hours as Dow ran late drafting an appeal. Upon being told the clerk wouldn’t accept any filings past 5 p.m., Dow testified that 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 on Sept. 25, 2007.

“I think the clerk’s office is the court. 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.”

Keller, the presiding judge of the state’s highest criminal appeals court, is facing five counts of judicial misconduct that could lead to her removal from the bench. Keller was expected to testify, but it was unclear when.

She is the highest-ranking judge ever put on trial by the state Commission on Judicial Conduct.

Following a first day of mostly measured testimony, emotions picked up Tuesday while Dow sparred with Babcock over timelines, the avenues he considered to file an appeal and what Dow told reporters in the days following Richard’s execution.

Babcock told Dow he could have filed an appeal directly with any judge on the nine-member court. He also criticized Dow for not trying to contact a judge and 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 that afternoon. Richard’s attorneys have said technical problems delayed their filing of an appeal until past the court’s normal business hours.

Richard was executed for the 1986 rape and killing of a Houston-area nurse and mother of seven. He was twice convicted and had multiple appeals rejected before his attorneys tried for a last-minute appeal the day of his execution.

Dow and his attorneys saw a new window for a reprieve earlier that day when 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.


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