Lawyer is warned against late appeals of Texas executions

The lawyer who accused a Texas judge of rebuffing his last-minute attempt to halt an execution in 2007 was threatened with sanctions Wednesday if he files any more late appeals for death row inmates.

Houston lawyer David Dow (left) was warned by the Texas Court of Criminal Appeals that if he again misses the court-imposed appeals deadline without good cause, he could be suspended from practicing before it.

The warning came after Dow filed a late appeal for a death row client last November.

The court said Dow violated a rule adopted in 2008, which says that any motions for a stay of execution are deemed untimely if filed less than 48 hours before the execution date.

Dow and his attorney did not immediately comment.

Sharon Keller, the appeals court's presiding judge, faces judicial misconduct charges.

She is accused of improperly closing her court and denying killer Michael Wayne Richard the chance to file a final appeal hours before his execution. The state Commission on Judicial Conduct is to hear final arguments June 18.

Source: Associated Press,June 10, 2010

Persecuting Judge Sharon Keller

Court of Criminal Appeals Judge Sharon Keller (left on picture) says the fact that she is still having to defend herself against the false allegation that she closed the court to a death row inmate on the day of his execution is an example of the "fundamental injustices" in the case against her, her lawyer wrote in a brief filed with the State Commission on Judicial Conduct.

Keller, presiding judge of the state's highest criminal court, was tried on ethics charges last summer in connection with the execution of Michael Richard (right on picture) in September 2007 – including that she failed to do her job and that she'd brought discredit to the judiciary by blocking the Texas Defender Service's ability to file a final appeal for Richard on Sept. 25, 2007.

The lawyers were having computer problems that afternoon and wanted permission to file the appeal late, a TDS employee told the court's then-general counsel, Ed Marty. When Marty called Keller to ask if the court would remain open to accept the late filing, Keller infamously replied that the court closes at 5pm.

Keller has said that she meant the clerk's office closes at 5pm and that didn't bar Richard's lawyers from filing the appeal with one of the court's nine judges. Asked at her trial whether she would do anything different if confronted with the same situation again, Keller said no.

Judge David Berchelmann, who was appointed special master to hear the case against Keller last summer, concluded that position was ridiculous; nonetheless, he cleared Keller of any fault in the situation and concluded that she needed no more punishment, "beyond the public humiliation" she had already suffered.

The attorneys prosecuting the case disagreed with Berchelmann's findings earlier this year, and the SCJC has since said that it would hear arguments from both sides during a hearing on June 18, before determining whether Keller should face any discipline.

In advance of that hearing, Keller's attorney last week filed a rebuttal to the prosecutors' objections to Berchelmann's findings, opining that the charges against Keller were mere "fiction" created by the TDS lawyers in order to deflect attention from the missteps they made on the day Richard was executed.

Berchelmann has already concluded that Keller did not "break any rule, law, or canon of conduct" and, as such, continuing the proceedings "would needlessly violate Judge Keller's rights," reads the brief.

According to Keller, the accusation that she closed the courthouse doors were essentially fabricated by TDS lawyer David Dow and colleagues and carried forward by lawyers representing the SCJC at the hearing before Berchelmann last year. "This course of events would not seem out of place in the old Soviet bloc, where show trials were not really trials, but were degredation ceremonies staged to depose officials who deviated from party doctrine," reads Keller's latest brief. "Things should be different in this country."

But the bombast doesn't stop there – hells no! Keller goes on to charge that the real motivation behind her persecution is a fundamental disagreement that TDS has with Keller's views on the death penalty. The objections of the SCJC's lawyers "amount to nothing more than an attempt to re-write history simply because" the lawyers don't "like 'Judge Keller's attitude'" and disagree with "Judge Keller's 'viewpoint' about the death penalty," Keller's brief reads.

"Judge Keller is not – or at least should not be – on trial because of her beliefs, but because the [lawyers] charged her with denying Mr. Richard access to the CCA on the evening of his execution." Indeed, though for many CCA watchers it might be difficult to separate Keller's feelings about the death penalty from the way she presents in court – need we bring up Keller's amazing performance in the Roy Criner case, on stage for all to see in the infamous Frontline interview? And that's just one example.

Considering that impartial attitude is one of the canons of judicial ethics, it's not surprising that Keller's opinions about capital punishment have made many attorneys scratch their chins in wonder at some of the opinions Keller has expressed over the years, while sitting on the state's highest criminal bench.

Regardless, it seems quite unlikely that the SCJC will derail the Keller hearing process that is already in motion. Indeed, Keller is slated to have her day in court before the Commission next Friday, June 18, beginning at 9a in the John H. Reagan State Office Building.

Source: Austin Chronicle, June 10, 2010