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DP Stay Complaint

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October 21, 2007, 18:29
DP Stay Complaint
I am really surprised that I had not seen anything about this posted here. Stuff like this does little to improve this state's perception around the country and around the world. When this guy got executed I was kind of surprised and wondered at the time why he also did not get a stay like the other guy did. Now I know why and it is very disappointing, to say the least.

More lawyers join criticism of Keller:

Latest complaint against judge in death row case also includes signatures of other judges

By PEGGY O'HARE, 10/18/07
Copyright 2007 Houston Chronicle

Joining a swelling tide of criticism, 130 attorneys from Harris County have filed a judicial conduct complaint condemning the actions of Judge Sharon Keller, who presides over the Texas Court of Criminal Appeals.

The latest complaint against Keller, filed late Wednesday by the Harris County Criminal Lawyers Association, also was signed by state District Judge Susan Criss of Galveston, retired state District Judge Jay W. Burnett and six regular citizens.

Keller has come under fire since she ordered the court clerk's office to close promptly at 5 p.m. on Sept. 25, denying death row inmate Michael Richard more time to file paperwork requesting a stay from the U.S. Supreme Court. He was executed a little more than three hours later.

Another complaint was filed previously with the state Commission on Judicial Conduct by 20 Texas attorneys, including former State Bar President Broadus Spivey, Houston defense attorneys Dick DeGuerin and Stanley Schneider and University of Houston Law Center professor Michael Olivas.

That group is being represented by Jim Harrington, director of the Texas Civil Rights Project.

The Harris County defense bar is calling for all other state bar agencies to complain about Keller as well.

"Every bar group should be incensed at this conduct and this callousness," said Patrick McCann, president of the Harris County group. "This judge knew what the effect of shutting that door was."

Keller did not return calls to her office requesting comment Thursday.

Her staff referred questions to Judge Tom Price, who has served as a spokesman for the state Court of Criminal Appeals.
October 21, 2007, 18:37
News: October 19, 2007

Closing Time? Attorneys Call for Justice's Head
By Jordan Smith, Austin Chronical

Nineteen attorneys from across Texas have signed on to a formal complaint with the state's Commission on Judicial Con�duct, seeking the reprimand � or ouster � of Court of Criminal Appeals Presiding Judge Sharon Keller, who they argue violated not only the Texas Code of Judicial Conduct but also the Constitution's Due Process Clause by refusing to accept an appeal for an emergency stay filed Sept. 25 on behalf of condemned inmate Michael Richard. Keller's decision to close the courthouse doors before Richard's attorneys could file the 11th-hour appeal meant Richard was blocked from appealing to the U.S. Supreme Court. Instead, he was executed. "Judge Keller's actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution," Texas Civil Rights Project Director Jim Harrington wrote in the complaint, filed with the commission on Oct. 10. "Her actions also brought the integrity of the Tex�as judiciary and of her court into disrepute and was a source of scandal to the citizens of Texas."

Richard's lawyer David Dow, of the Texas Innocence Net�work at the University of Houston Law Center, was seeking a stay of execution for Richard based on the U.S. Supreme Court's decision that morning to hear an appeal filed by two Kentucky death row inmates challenging the constitutionality of the tri-chemical lethal-injection execution method currently used by 37 states. Richard was slated to be executed that night at 6pm, meaning Dow had less than a day to compose and file the appeal with the CCA � Texas' highest criminal appeals court. The court would then have the choice of either granting Richard a stay or denying it, which would allow Dow to appeal to the Supremes. But Keller refused to accept the appeal at all, meaning that Dow was, in effect, blocked from seeking high court intervention.

Keller told the San Antonio Express-News she refused the appeal because it wasn't filed with the court by 5pm � allegedly, the court's standard deadline. Dow told the daily that he'd had computer problems, which delayed the filing. Amazingly, the court, which has statewide jurisdiction, does not accept any e-filing � even in life-and-death cases. Dow said he called the court to explain his situation; in all, he said he would have needed just 20 additional minutes to get the appeal filed. On Oct. 4, the Express-News reported that Keller "voiced no second thoughts" about her decision to slam the door on Richard: "You're asking me whether something different would have happened if we had stayed open ... and I think the question ought to be why didn't they file something on time," she said.

Practically speaking, it is almost certain that "something different" would have happened had Keller decided to wait the extra half-hour: Richard likely would have been granted a stay by the Supremes, who likely would have understood the significance of continuing to execute inmates while the legality of the execution method was in question. In fact, not 24 hours later, on Sept. 26, the high court granted a stay for condemned Texas inmate Carlton Turner Jr. after the CCA denied his appeal. "Justice should be both fair and competent, and here it was not," Austin attorney and legal ethics expert Chuck Herring told reporters last week. "And the result was that a man was killed on a day that he should've lived."

Keller claimed she was unaware that Dow had encountered computer problems and would need more time to get the appeal filed � but that's either a lie or it indicates a serious internal communication problem at the court. Although Keller and CCA general counsel Ed Marty have said that the 5pm deadline is standard for the court, it doesn't appear that the other CCA judges knew anything about the supposed rule. Several justices stayed late at work that evening in anticipation of the last-minute appeal; and Judge Cheryl Johnson, who was assigned to handle the Richard case, had no idea that Keller set the clearly arbitrary 5pm deadline. Johnson told the Austin American-Statesman that she was "dismayed" by Keller's decision. "And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings."

In addition to refusing last-minute appeals, Keller's office told the Chronicle that the judge is now declining to "accept any calls" regarding her actions in the Richard case. Similarly, Marty did not return calls requesting comment, nor did Judge Tom Price to whom the Chronicle was referred for comment. (Interestingly, Price dissented from the court's decision last month to deny Turner's stay, opining that he didn't understand why the court would be willing to allow executions to go forward when the legality of the method was in question.) As such, at press time it was unclear whether the 5pm deadline � or, perhaps, the Keller Rule � is in fact standard procedure at all; judging by Johnson's response, it's hard to imagine that it is. Indeed, it is standard practice for courts to remain ready to accept such last-minute death-penalty appeals. University of Texas Law professor Jordan Steiker, who teaches constitutional law and is an expert in death penalty jurisprudence, said he doesn't know of any other court handling death row appeals that claims such a deadline. "The decision by the [CCA] to close its doors follows in a long line of resistance by the court to constitu�tion�al norms," he said, "and what is often said of boxing is certainly true for this court � it is a court without an eye left to blacken."

Harrington has also filed a grievance with the Texas Bar Association, seeking a revocation of Keller's law license. And on Oct. 15, state Rep. Lon Burnam, D-Fort Worth, penned a separate complaint to the commission, urging the commissioners to take "prompt and appropriate disciplinary action" against Keller, including "serious consideration" of removing her from office. "It is simply unconscionable and unacceptable for any officer of the court to close the doors of the court when a pleading for a man's life is known to be on the way," Burnam wrote.
October 21, 2007, 18:47
Views divided on judge in dispute over executed man

Keller is seen either as a solid jurist or an ideologue

Copyright 2007 Houston Chronicle Austin Bureau

AUSTIN � Sharon Keller won election to Texas' highest criminal court 13 years ago with a promise to be a staunch supporter of the death penalty and a "pro-prosecution" judge.

Since that time, Keller has risen to become the presiding judge of the Texas Court of Criminal Appeals with a term lasting through 2012. Depending on the point of view, she is either a tough-as-nails jurist or an ideologue who puts the execution of convicted criminals ahead of constitutional due process.

A fellow judge once accused her of turning the court into a "national laughingstock" after Keller said DNA tests clearing a convicted rapist were not conclusive because the man could have worn a condom.

And now 20 lawyers have filed a grievance against her with the State Commission on Judicial Conduct because on Sept. 25 she ordered the court clerk's office to close promptly at 5 p.m., denying death row inmate Michael Richard an opportunity to get a stay from the U.S. Supreme Court. He was executed a little more than three hours later.

"This isn't a liberal or conservative matter. No matter what your opinion is on the death penalty, you've got to have due process," said Jim Harrington, a civil rights lawyer who filed the complaint on behalf of the other attorneys. "She's out of control. It's frightening to think of the arbitrary power she wields."

But former Presiding Judge Mike McCormick, who led the court in a conservative direction in the 1990s with Keller's help, said Keller has worked hard to preserve the idea that once convicted, the burden is on the defendant to prove they got a bad trial or that they are innocent.

"Sharon Keller is one of the brightest individuals I have ever known," McCormick said.

Her rise to power

Keller, 54, declined to be interviewed for this article. She is a Dallas native. Her parents owned a popular local chain of hamburger stands. With an undergraduate degree from Rice, Keller obtained her law degree from Southern Methodist University.

In last year's elections, Keller won her second term as presiding judge of the Court of Criminal Appeals. Her term of office runs until 2012.

Keller had been working as a Dallas County assistant district attorney for six years when she first ran for the Court of Criminal Appeals in 1994. In an atmosphere of public anger over criminals getting cases reversed on what appeared to be technicalities, Keller promised to be a prosecution-oriented judge.

During that race, she equated the executions of convicted killers with protecting human rights.

"The failure to impose capital punishment on convicted murderers is a human rights violation � particularly if we take into account the human rights that murderers violate when left alive to kill again," Keller said in an op-ed piece published in the Houston Chronicle. "Society should answer the most serious crimes with the most serious punishments."

Controversial rulings

Since joining the court, she has developed a reputation for rulings that speeded executions.

� Keller was in the court majority that allowed the 2003 execution of Leonard Rojas to go forward despite a showing that his lawyer had just two years of experience, had his law license suspended three times and had missed a deadline for federal appeals because of bipolar disorder.
Three judges wrote a dissenting opinion, saying: "A capital murder habeas proceeding is no place for a green attorney with multiple suspensions from the State Bar."

Keller responded by saying the lawyer only needed to be competent when appointed. She said the fact the Bar had probated the lawyer's suspensions showed that the Bar "still found counsel to be competent to practice law."

In wording that echoes Keller's actions in the Richard case, she complained that Rojas' complaints of incompetent counsel "were not brought to this court's attention until mere days before applicant's scheduled execution."

� Prior to the Richard execution, the biggest controversy of her tenure on the court came when Keller wrote an opinion saying DNA evidence did not prove convicted rapist Roy Criner was innocent even though the semen in his alleged victim was not his. Keller said Criner could have worn a condom during the rape, a theory that was not raised by the prosecution in his trial.
On the PBS program Frontline, Keller was asked how Criner could prove his innocence. She replied: "I don't know."

Fellow appeals court Judge Tom Price told Texas Lawyer that Keller had turned the court into a "national laughingstock." Price ran against Keller in 2000 and 2006, losing both times. He did not respond to a request for an interview.

Further DNA testing proved saliva on a cigarette butt at the scene of Criner's alleged rape belonged to another man, whose DNA also matched the semen. Criner received a pardon from then-Gov. George W. Bush in 2000.

� In 1996, Keller wrote an opinion that death row inmate Cesar Fierro received a fair trial despite the fact his confession was coerced by threats that Mexican police would torture his parents. After learning of the coerced confession, the prosecutor and judge in the case called for Fierro to receive a new trial.
"We conclude that the applicant's due process rights were violated," Keller wrote for the court. "But, because we conclude that the error was harmless, we deny relief."

Keller, writing for the court majority, said Fierro could have been convicted on a co-defendant's testimony alone.

Keller's legal opinions have not been the only source of controversy for the jurist.

� Other members of the court in 2002 stripped Keller of the sole authority to hand out grant money after she gave $225,000 to a little-known legal organization to provide legal training for lawyers who represent poor clients. The group was headed by a one-time staff attorney at the court.

� Keller, to help balance the state budget, in 2003 announced a cut of $860,000 from a fund that pays for lawyers who represent death row inmates. Keller said the money would not be needed before the next budget cycle.

State Rep. Lon Burnam, D-Fort Worth, this week filed the latest complaint against Keller with the judicial review commission. He said her actions in the Richard case cast doubts on the impartiality of the Court of Criminal Appeals.

"I urge you to take prompt and appropriate disciplinary action against Judge Keller, which should include serious consideration of removal from office," Burnam wrote.
October 21, 2007, 21:55
I find it interesting that the attorneys complaining about Judge Keller do not mention that the United States Supreme Court denied Richard a stay of execution on that same date.
October 22, 2007, 01:40
david curl
Apparently, part of the reason they failed to get this thing filed on time was that the document they wanted to file was 108 pages long!

I can just imagine what the last paragraph of this 108-page stay application might have said. In the case that I had against the Texas Defender Service, they argued (as best I can recall) that there wasn't enough time for the Court to give proper consideration to the merits of their argument so the Court should just grant their stay request.

Expecting the Court of Criminal Appeals to distribute, read and make a ruling on a 108-page submission in less than 45 minutes – Richard’s execution was scheduled for after 6:00 p.m. -- is abusive. Also, when was the State going to get a chance to respond to Richard's stay request?

Richard's attorneys did not have to wait until the afternoon of the last day to seek a stay – this was three months after the execution order was signed.

Baze's lethal injection claim (filed July 11, 2007) was enough of a "chestnut" that it would be very surprising if the Defender Service had not already developed "canned" lethal injection stay claims. The operative date is not the date Baze's cert. petition was granted, it is when the lethal injection claim was available. If the stay request had been filed earlier, it would have been a trivial matter to alert the Court to the fact that the cert. had been granted in Baze.

Texas should have a rule -- similar to the Fifth Circuit's Rule 8.10 -- to require a justification for filing a stay request within 5 days of a scheduled execution.

If they had filed a formal written motion asking the Court to stay open past 5 p.m. there would not be any dispute about what they said and what the Court knew.

What makes this kerfuffle most exasperating is that it would be utterly shocking if the Supremes were to prohibit lethal injection.
October 22, 2007, 08:56
David Newell
i agree that the Supreme Court is not likely to do away with the lethal injection. however, there are four members of the court that would probably feel pretty comfortable using Baze to institute a court-ordered moratorium. (we might even see stevens or souter say so in a dissent.) i imagine death penalty opponents see this as momentum from cases like atkins, roper, and panetti. i certainly hope their drive stalls outside of field goal range. it would certainly suck all the air out of the stadium.

[This message was edited by David Newell on 10-22-07 at .]
October 22, 2007, 09:42
Shannon Edmonds
Originally posted by RTC:
I am really surprised that I had not seen anything about this posted here.

Not surprising to me. Those in the trenches know an hysterical media-induced hatchet job when they see it, so why rehash it? This anti-death penalty stuff has become a parody of itself.
October 22, 2007, 09:57
RTC, have you signed the petition?

Ditto as to Shannon's comments.
October 22, 2007, 13:51
Like most here I would imagine, I have never been involved in a death penalty case, so I do not know anything of the goings on in the CCA. I do know that I did see a TV interview a week ago or so in which the judge at the CCA who was actually 'responsible' for this case (or was over-seeing the case somehow) was pretty p.o.'d about the actions of Keller.

The D's attny stated that he had contacted the court and informed them of the computer problem and that he would be a few minutes late in filing.

Irrespective as to whether or not he had plenty of time to file it earlier or whatever, it seems pretty chicken shit to me to slam the door shut on the guy when all he needed was a few extra minutes.

I doubt he could have got his paperwork in before that morning anyways simply because it was only that morning when the US S.Ct. had granted a stay in that KY case, so the issue was not available before then. So defense counsel had less than a day to get the paperwork together.

This is not a run of the mill case here -- it is a case involving the death penalty. It does not get anymore serious than this.

There was several other Justices in there at that time who were apparently expecting the paperwork from defense counsel. Keller slammed the door shut without bothering to consult with those other Justices.

Several justices stayed late at work that evening in anticipation of the last-minute appeal; and Judge Cheryl Johnson, who was assigned to handle the Richard case, had no idea that Keller set the clearly arbitrary 5pm deadline. Johnson told the Austin American-Statesman that she was "dismayed" by Keller's decision. "And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings."

It is my understand that the CCA routinely accepts documents after 5 pm in certain situations, or is someone here going to tell me that I am wrong??

In any event, it looks pretty bad.

And no, I had not planned on signing the petition; I have no personal knowledge of the situation.
October 22, 2007, 14:42
Originally posted by JB:
RTC...does your self-rightousness and moral fiber extend that far?

It don't go that fer.
October 22, 2007, 14:50
This isn't about me.
October 22, 2007, 14:52
Quiet Man
Actually, there are rules for off-hours filing in the rules of appellate procedure, and they don't include keeping the front door open. You go to the clerk directly or the judge. Any lawyer worth their salt knows how to do it. This is just the last minute filing anti death penalty playbook. Had the court stayed open, the stay been denied, then the court is callous and result oriented. If the court closes, then the court is callous and result oriented. If the court grants the stay, it somehow means there is merit to the claim, and so on . . .
October 22, 2007, 14:58
Originally posted by RTC:
This isn't about me.

Who started this anti-DP thread? One that is furthering a violation of the disciplinary rules regarding confidentiality of greivances and complaints?

Need a hint? Here's a quote:

RTC said: "I am really surprised that I had not seen anything about this posted here. Stuff like this does little to improve this state's perception around the country and around the world. When this guy got executed I was kind of surprised and wondered at the time why he also did not get a stay like the other guy did. Now I know why and it is very disappointing, to say the least."

No one posts about it here for the reasons stated above in this thread by other posters except for you.

I think the innocence project has attorney openings, fyi.
October 22, 2007, 14:58
David Newell
so the door was never actually "slammed" shut? that's kind of disappointing. i mean, it sounded so dramatic.
October 22, 2007, 15:12
Where was the due process for Marguerite Lucille Dixon?

"Richard had been freed from his second prison term only two months when he walked up to Dixon's home to ask whether a van parked outside was for sale. It wasn't, but Dixon invited him inside for a drink of water. When Richard left, he saw two of Dixon?s kids leave right after him. He returned to the house, pulled a gun on the woman, sexually assaulted and fatally shot her, and took two televisions as he left in the van, evidence at his trial showed. Then he went to Houston, about 30 miles to the southeast, and gave the .25-caliber pistol to a friend and swapped the TVs for some cocaine."
October 22, 2007, 16:49
Shannon Edmonds
The dude was on death row for 20 years before his number was finally called. TWENTY YEARS. And his lawyers complain about a court not giving him more time?!?

For a description of the 20-year procedural history in the case, click here:

AG press release
October 22, 2007, 18:17
Too bad, it seems no one in the media cares about the true facts of the brutal murder and the litigation history of the case, a massive amount of due process Mr. Richard received during his twenty year hiatus, Shannon.

I bet the victim, Ms. Marguerite Lucille Dixon, could have done alot of living in that same 20 year period, had she been given that mercy by Mr. Richard.

But he couldn't wait either.
October 22, 2007, 18:56
John L. Pool
I support Judge Keller 100%. One must remember these "quotes" are coming from defense attorney's with an anti-death penalty agenda.

I would take Judge Keller's word over one of the petition signers without hesitation. It has been my experience that such defense attorney's have a convenient memory and tend to manipulate the "truth".

Greg, thank you for remembering the victim, I have yet to read a single article that mentions the victim.
October 22, 2007, 19:00
John L. Pool
October 29, 1986 -- A Harris County Grand Jury indicted Richard for the capital murder of Marguerite Dixon.
September 4, 1987 -- A jury found Richard guilty of capital murder, and he was sentenced to death.
September 16, 1992 -- The Texas Court of Criminal Appeals reversed Richard�s conviction because of a flaw in the jury instructions.
May 15, 1995 -- Richard�s second trial began.
June 15, 1995 -- A second jury found Richard guilty of capital murder, he was sentenced to death.
June 18, 1997 -- The Texas Court of Criminal Appeals affirmed Richard�s conviction and sentence on direct appeal.
April 3, 1998 -- Richard filed his first application for writ of habeas corpus with the state trial court.
June 26, 1998 -- The U.S. Supreme Court denied Richard�s petition for writ of certiorari.
February 7, 2001 -- The Texas Court of Criminal Appeals denied Richard�s state application for writ of habeas corpus.
February 7, 2002 -- Richard filed a federal petition for writ of habeas corpus in a Houston federal district court.
December 31, 2002 -- The Federal District Court denied Richard�s petition.
June 20, 2003 -- Richard filed a successive state application for the writ of habeas corpus, alleging he was ineligible to be executed based on Atkins claim of mental retardation.
June 27, 2003 -- The 5th U.S. Circuit Court of Appeals denied Richard permission to appeal his first federal petition and affirmed the judgment of the federal district court.
March 21, 2007 -- The Texas Court of Criminal Appeals denied Richard�s second state habeas corpus application.
March 28, 2007 -- Richard filed a motion for authorization to file a successive federal habeas corpus petition in the 5th U.S. Circuit Court of Appeals.
May 15, 2007 -- The 5th Circuit Court denied Richard�s motion for authorization to file a successive habeas petition.
June 12, 2007 -- The trial court set Richard�s execution date for Tuesday, September 25, 2007.

It is obvious that he was given due process.
October 22, 2007, 20:19
Originally posted by John L. Pool:

Greg, thank you for remembering the victim, I have yet to read a single article that mentions the victim.

On remembering the victim, I know I'm speaking for many out there, not just myself, John.

She didn't have a retrial. She didn't get a judgement of death from a jury of her peers. Twice. She didn't get endless automatic free appellate review of her cases multiple times.
She probably begged for mercy, and got none.

Whereas Ms. Dixon got sexually assaulted and then brutally and fatally shot...murdered in cold blood. There has been no remorse from her killer, no acceptance of guilt or responsibility.

As John says, Mr. Richard got due process.

And as we all know, Ms. Dixon did not. Why are we, the victims and family/the police/the prosecutors/like minded citizens, seemingly the only ones to mourn Ms. Dixon, and what her death represents to the consitutional right to life, liberty and the pursuit of happiness?

And how her constitutional rights were violated and in fact, killed, in the worst way possible...