[What ethical violations arise from filing a lawsuit you know can not be supported by fact or law, followed by a fancy pants press conference?]

Widow drops death penalty lawsuit
Had sued judge after she blocked husband Michael Richard's appeal

By CINDY GEORGE
Copyright 2007 Houston Chronicle

The lawsuit filed with great fanfare this week by an executed killer's widow against a judge for blocking the inmate's last-minute appeal has been dropped � at least for now.

Civil rights lawyer Randall Kallinen said Friday that the dismissal is part of his strategy and that Wednesday's news conference at the Houston federal courthouse was not a publicity stunt.

"I really cannot divulge my strategy right now, but I'm sure it will become evident in the near future," Kallinen said.

A day after filing, Marsha Richard withdrew the suit, which accused Texas Court of Criminal Appeals Presiding Judge Sharon Keller of causing the inmate's Sept. 25 lethal injection. The lawsuit said Keller violated Michael Richard's due process rights when she ordered the court clerk's office to close promptly at 5 p.m. on Sept. 25 before his lawyers could file an appeal.

The notice of dismissal, filed Thursday by Kallinen, offers no explanation. He declined to reveal whether he will file another case.

"I wish I could tell you, but the other side may use anything in the media to their advantage," he said.

Legal experts said his strategy could range from second thoughts about his legal theory to displeasure with the assigned judge.

"One reason might be that he realized that it was a frivolous suit and at some point you'll be sanctioned if you persist in a frivolous suit. He might have decided he got the publicity he wanted and why not dismiss it now?" University of Houston law professor Peter Hoffman said.

It would have been less costly to amend the original claim than pay another $350 civil filing fee, Hoffman added.

"It may be that he's going to reformulate his theory and he's going to try again, but I think it will be difficult for him to come up with a viable theory."

South Texas College of Law professor James Paulsen said Kallinen could be judge shopping or perhaps the case contained an error.

"It may be that what he's doing is taking a free shot at another judge," Paulsen said, adding that it may backfire if the court gives him the same jurist. The case was assigned to U.S. District Judge Melinda Harmon and was scheduled for an initial conference in March before U.S. Magistrate Judge Frances Stacy.

Another option involves making public statements about an active lawsuit, instead of slinging accusations.

"Sometimes you are more protected when you are speaking about something that is a matter of public record," Paulsen said.

Kallinen had the right to withdraw the case because the other side had not responded, both experts said.

The lawsuit was filed a day after the state criminal appeals court said it would accept emergency e-mail filings in death penalty cases to avoid a repeat of Michael Richard's nationally controversial execution.

On the morning of Sept. 25, the U.S. Supreme Court agreed to hear a challenge to the chemicals used for lethal injections in Kentucky. That case alleges that the method of execution used in almost every death-penalty state causes inmates to experience torture.

Throughout the day, Richard's attorneys worked to halt his execution on the same basis.

The lawsuit claimed Keller's actions denied the condemned man his right to file a proper request for a stay of execution with the U.S. Supreme Court because the Court of Criminal Appeals had not had a chance to rule. Three other state appeals court judges said they were available that evening and could have handled Richard's appeal if they had known about it. The U.S. Supreme Court denied the stay request.

Michael Richard, 49, was executed at 8:22 p.m. for the 1986 rape and murder of a Harris County mother of seven.

Since then, all other executions in the nation have been halted pending the outcome of the Kentucky case.

It should be reassigned to the same judges if refiled.

They apparently plan to refile in Austin.

Yup. He claims all the witnesses are in Austin and he wants the jurors to be able to "walk into the Court of Criminal Appeals and see where that phone call came in."

Article's available here.

What a great plan. If all of the witnesses are in Austin, why didn't the anti-dp folks email them their brief and have them file it in a timely manner for them on the date in question?

Even the anti-DP, liberal professors of law would have to admit that judges have immunity from this sort of nonsense.

"This one's simple," said Scot Powe Jr., a leading constitutional scholar and professor at the University of Texas School of Law. "This suit will be dismissed on immunity grounds."

Peter Hoffman, a law professor at the University of Houston Law Center, said he believes Marsha Richard will have "a very tough time" winning her lawsuit because judges have immunity for both judicial and administrative acts they perform.