Sour-grape lawyers miss filing deadline, blame judge who upheld law

Lawyers say judge violated executed man's rights

By R.G. RATCLIFFE and POLLY ROSS HUGHES
Copyright 2007 Houston Chronicle Austin Bureau
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CODES OF CONDUCT
Attorneys argue that Texas Court of Criminal Appeals Judge Sharon
Keller violated judicial codes of conduct, including:

· Behavior that promotes public confidence in judicial integrity and
impartiality
· Allowing a person with a legal interest at stake the right to be
heard
· Discharging administrative duties without bias or prejudice
· Cooperating with judges and court officials in administration of
court business

AUSTIN - Twenty lawyers from across Texas filed a formal judicial
conduct complaint Wednesday against Texas Court of Criminal Appeals
Presiding Judge Sharon Keller, accusing her of violating the
constitutional due process of a condemned man.

The complaint to the State Commission on Judicial Conduct says Keller
improperly cut off appeals that preceded the execution of Michael
Richard on Sept. 25, even though just hours earlier the U.S. Supreme
Court had accepted two Kentucky cases on the constitutionality of
chemicals used for lethal injection.

Meanwhile, two of his predecessors raised questions about whether
Attorney General Greg Abbott should have intervened to stop Richard's
execution. The attorney general represents the state in death penalty
appeals. Abbott's office declined requests for comment.

The lethal injection issue before the Supreme Court had direct
implications for Richard's execution because Texas uses the same
chemicals as Kentucky. The Supreme Court has since stayed one Texas
execution because of the Kentucky cases. The state appeals court
halted the next one.

"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 of her court into disrepute ... "

Lawyers signing the complaint include former State Bar President
Broadus Spivey, Houston criminal defense lawyer *** DeGuerin,
University of Houston law professor Mike Olivas, former appellate
Judge Michol O'Connor, state Rep. Harold Dutton, D-Houston, and former
Nueces County Attorney Mike Westergren.

The lawyers are being represented in the complaint by Jim Harrington,
director of the Texas Civil Rights Project.

Harrington said before filing the complaint that it was "shameful" for
Keller to "short-circuit" Richard's rights by ordering the courthouse
door locked at 5 p.m. even though fellow appellate judges said they
were prepared to stay late to consider defense arguments. ( Yes I'm
sure that they would have considered the merits of the appeal
predicated on the attorneys meeting the legal mandate that all filings
must be made before closing time.)

"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," he
said. ( No it's about upholding the law. You break the law for one
defendant, you wind up having to break the law for others.)

Keller did not return several phone calls seeking comment.

Proceedings are secret
Along with denial of due process and access to the courts, the
complaint cites canons of the Texas Code of Judicial Conduct. Those
canons say judges should promote public confidence in the judicial
system and act without prejudice.

"Justice should be both fair and competent. Here it was not. The
result is a man was killed on a day he should have lived," said Chuck
Herring, an Austin lawyer who joined in the complaint and who has
written on professional ethics and responsibility. ( That's their
lawyers fault, not the judge.)

The judicial commission's proceedings are secret. At the end, the
commission can dismiss a complaint without making it public, issue a
public reprimand or recommend to the Texas Supreme Court that the
judge be removed from office.

At issue is the sequence of events leading to the execution of
Richard, 49, for the rape and shooting death of Marguerite Dixon, a
Hockley mother of seven, in 1986.

Lawyers for Richard had called the court's clerk, asking that the
office stay open an extra 20 minutes so a stay of execution request
could be filed. Even if it was denied by the state court, that request
was procedurally necessary to get a stay from the Supreme Court.

Keller last week voiced no second thoughts.

"You're asking me whether something different would have happened if
we had stayed open," Keller said, "and I think the question ought to
be why didn't they file something on time? They had all
day." ( Amen. Amen. The law does not allow for 20 extra minutes
and the lawyers were asking for a hail mary from their own
incompetence.)

Abbott also criticized
Keller. a Republican, was not the only state elected official
criticized Wednesday in connection with the Richard execution.

Former Gov. Mark White and former Attorney General Jim Mattox, who
both fought to enforce the state's capital punishment laws during
their terms as attorney general, said Abbott, as the state's top
lawyer, has a duty to halt executions when they appear to violate an
inmate's due process rights.

White said Abbott is an officer of the court and he "should have been
obligated to ask for a stay" in the Richard execution.

Mattox said the attorney general may lack actual legal authority to
stop an execution, but the state prison system will follow an attorney
general's order.

Mattox, who witnessed more than 30 executions, said he once ordered an
inmate off the execution gurney over prison system protests because he
knew the man would receive a stay.

"When the state is all powerful, the state has got to be cautious in
how it uses its power," he said. "Sometimes you do things not to
protect the individual but to protect the system itself."

Mattox and White are Democrats. White served as attorney general from
1979 to 1982, and Mattox from 1983 to 1990.

U.S. Sen. John Cornyn, R-Texas, as state attorney general in 2001
asked the U.S. Supreme Court to overturn a Texas inmate's death
sentence because race had been used to determine "future
dangerousness." Cornyn said Texans must have faith that the criminal
justice system is fairly administered.

"In a way it shows that the system works because that's part of my
job, to derail these trains that are chugging along," he said then. He
couldn't be reached Wednesday.

r.g.ratcliffe@xxxxxxxxx

polly.hughes@xxxxxxxxx

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