Skip to main content

Judge's ethics case may hinge on phone calls

Sharon Keller "We close at 5" cartoon
Sharon Keller picked up the phone at her Austin home two times on the day death row inmate Michael Richard would be executed.

What she said could determine whether Keller continues as presiding judge of the state's highest criminal court.

Both conversations will play a central role at the as-yet-unscheduled trial on charges that Keller violated her judicial duty by refusing to accept Richard's appeal after 5 p.m. on his execution date.

Keller's unilateral refusal ignored Court of Criminal Appeals rules on death row appeals and, according to charges filed Thursday by the State Commission on Judicial Conduct, violated ethics rules by:

• Failing to ensure proper access to the legal system.

• Eroding public confidence in the fairness of judges.

Beyond revealing dysfunction within the normally secretive nine-member court, the charges contained previously unknown information about events leading to Richard's execution on Sept. 25, 2007 — including details of the two key phone conversations involving Keller.

The information was compiled during a yearlong investigation by the Commission on Judicial Conduct — including closed-door hearings last June, August and October and interviews with several Court of Criminal Appeals judges.

Keller will have an opportunity to answer the charges in a written response due to the commission in early March. But the main event will be her trial before a specially appointed judge who will recommend one of three outcomes for Keller: exoneration, reprimand or removal from office.

Keller is the highest-ranking Texas judge to face this kind of public trial. Only three have been held in recent years, all involving county justices of the peace.


The first phone call


On the morning of Sept. 25, the U.S. Supreme Court announced that it would consider whether lethal injection was cruel and unusual punishment, a development that was likely to delay all U.S. executions until the high court ruled.

Keller left work early that afternoon to meet a repairman at her home. By then, all nine Court of Criminal Appeals judges knew Richard's lawyers were working on a stay of execution request, thanks to a 2:40 p.m. e-mail alert from Ed Marty, the court's general counsel.

The judges also polled themselves in the afternoon and decided 5-4 that the Supreme Court review would not qualify Richard for a stay, essentially deciding the case before receiving Richard's briefs.

Meantime, Richard's lawyers were running into persistent computer problems and, at 4:45 p.m., asked the court clerk's office to stay open "a few minutes late" to accept the stay request, according to the charges against Keller.

Marty picked up the phone to relay the request to Keller.

It was a short conversation, but they dispute what was said. Marty recalls saying that Richard's lawyers "wanted the court to stay open late." Keller says Marty asked only about keeping the clerk's office open past 5 p.m. — not the court — and that her answer reflected common practice: All clerks went home at closing time.

"No," she told Marty.

At 4:48 p.m., Richard's lawyers at the Texas Defender Service were told that the clerk would not accept any filing after 5 p.m. The lawyers offered to leave the stay request with a security guard or to e-mail or fax the document, to no avail.

They tried again at 6 p.m., telling chief deputy clerk Abel Acosta that the document was on its way to court. "Mr. Acosta (said) not to bother, because no one was there to accept the filing," according to the charges against Keller.

The second phone call


Shortly after 5 p.m., Keller telephoned Marty to ask whether Richard's lawyers had filed anything. The answer was no.

That conversation, though short, will be raised at Keller's trial in an attempt to show that she was fully aware of the consequences of her decision to refuse an after-hours filing, said Seana Willing, executive director of the commission.

Keller, however, will argue that both phone calls have been misconstrued.

Keller never intended to close the court — she doesn't have that authority — nor did she think that closing the clerk's office thwarted Richard's lawyers from filing a late appeal, said Chip Babcock, Keller's lawyer.

The Texas Defender Service uses experienced death penalty lawyers who should have known that judges are always available for late filings on execution days, yet they tried only to work through the clerk's office, Babcock said.

Keller "is being made a scapegoat on this deal, and she shares very little of the blame," Babcock said. "If I've got a death penalty case, I don't ... call the clerk at 5 (p.m.) when I know the guy is going to be executed at 6. I don't care about computer problems, you hand write it or get a manual typewriter. You get it there in the morning."

Jim Marcus, a co-founder of the Texas Defender Service who is now an adjunct clinical law professor at the University of Texas, said blaming Richard's lawyers was a distraction.

Keller's court did not have a written policy on how to file after-hours pleas until two months after Richard was executed, he said.

"I never even knew there was a policy of assigning a duty judge to executions, and I've been doing this for 15 years," Marcus said. "Plus, the idea of drawing a distinction between the clerk's office and the court is a little bizarre. I've never encountered a court where you can file documents by bypassing the clerk's office."

Disorder in the court


Appellate courts are designed to be collaborative and foster a robust give and take between judges. But the charges against Keller reveal a distinct lack of cooperation on the Court of Criminal Appeals.

Keller did not inform her eight peers about Richard's request to file late. Nor did she follow court rules and refer the question to Judge Cheryl Johnson, who was assigned by rotation to handle any appeal from Richard.

Johnson and at least three other judges worked late that night in anticipation of a late appeal, but Marty did not tell them about Richard's request — even though he spoke to several judges after 5 p.m.

Marty has since retired as general counsel.

The day after Richard was executed, all nine judges met in conference to discuss pending cases. Save for Keller, none knew that Richard had been turned away, and several expressed surprise that Richard's lawyers had filed nothing with the court.

Even so, Keller did not disclose the events of the night before, according to the charges against her.

Source: statesman.com, February 22, 2009

Comments

Most viewed (Last 7 days)

Florida Set to Execute Man Who Said He Killed to Reach Death Row, Challenging Misconception that Death Penalty Deters Crime

Florida is scheduled to execute James Robertson at noon on Tuesday, October 13, at Florida State Prison. His execution remains scheduled despite the withdrawal of William Lee Thompson’s death warrant, which had called for a 2nd execution that evening. If completed, this will be Florida’s 17th execution of 2026. Floridians for Alternatives to the Death Penalty (FADP) and partners will be holding a series of vigils and demonstrations across the state. 

Christa Pike's Survival Wasn't a Miracle. That's What Should Scare Us.

What happened in Tennessee's execution chamber is one of the most common failures in medicine Christa Pike is awake. A week after Tennessee strapped her to a gurney and gave her two doses of pentobarbital , she is off the ventilator and speaking from a hospital bed, still shackled to it. Her lawyers call her recovery " medically unprecedented. " Legal scholars say she is the first person in American history to survive a lethal injection after the drug was actually given. I understand the impulse to make such claims. I consulted for Pike's legal team, but I have also spent three decades in operating rooms and intensive care units (ICUs), and I want to resist the word "unprecedented" and the word "miracle" that hovers just behind it.

Christa Pike: 4 Major Questions As She Returns to Death Row

As Christa Pike returns to death row after surviving Tennessee’s attempt to execute her, several questions remain about her case and what comes next.  Pike, 50, was discharged from hospital and moved back to the Debra K. Johnson Rehabilitation Center, the women’s prison where she was housed for 30 years, her attorneys said on Saturday.  She was hospitalized after surviving 2 doses of the lethal drug pentobarbital as Tennessee attempted to execute her on September 30. Pike was sentenced to death for the 1995 murder of 19-year-old Colleen Slemmer, her classmate at a Job Corps training program in Knoxville, Tennessee. Pike was 18 at the time. 

Florida executes James Robertson

STARKE, Fla. — A Florida prisoner who said he killed his cellmate specifically to get on death row was executed Tuesday, nearly 18 years after the attack. James Robertson, 63, declined to offer any last words before receiving a three-drug injection and was pronounced dead about 10 minutes later. It was a stark contrast to the failed execution of Christa Pike in Tennessee two weeks ago, where she was rushed to the hospital after surviving two lethal doses of pentobarbital.

USA | Firing squad execution to be livestreamed, Pentagon says

The public will be able to watch the execution of a former US Army major by firing squad, US Defence Secretary Pete Hegseth has said. A Defense Department official told the BBC the execution of Nidal Hasan, who shot dead 13 unarmed US soldiers at Fort Hood in 2009, would be livestreamed. It is believed it would be the first public execution in the US in almost a century. The decision to livestream it is "unprecedented in the modern era" and "on uncertain legal terrain", said John Mills, a lawyer who works with inmates sentenced to death.

Saudi Arabia executes two Bangladeshis over 'immoral act' inside mosque

Saudi Arabia has carried out the death penalty on two Bangladeshi nationals in Mecca. The country's Interior Ministry announced this in a statement on Wednesday. According to the report, they were sentenced over allegations of involvement in immoral acts inside a mosque in Mecca. The information was reported by Ajel News, citing the Saudi Interior Ministry's statement. The two Bangladeshis executed were a man and a woman, Nazrul Islam Abdul Basir and Sithi Akhter. The “immoral acts” referred to illicit heterosexual intercourse, not homosexual activity.

What Tennessee wants to do next to Christa Pike is beyond grim

Christa Pike, the woman who survived two execution attempts in Tennessee earlier this week, remains hospitalized in critical condition, where presumably medical staff is at work trying to keep her alive.  If she wakes from the coma she had entered, Tennessee officials want to start anew to inject lethal drugs into her seemingly too-small veins to kill her and carry out the state death warrant. Pike also is being treated for “significant injuries to both arms” sustained when two lethal injections of pentobarbital failed to kill her. If she dies, there will be no need to try again.  As we know by now, Tennessee tried to put Pike to death Wednesday night by lethal injection for a murder she committed when she was 18. She would have been the first woman executed in the state in 200 years. 

Tennessee | Republicans legislature to investigate other execution methods after failed lethal injections

Republican leaders in Tennessee’s legislature say they will investigate the reliability of lethal injection as an execution method after the state failed to execute two death row inmates in the span of five months. Gov. Bill Lee stopped the May execution of Tony Carruthers after a physician unsuccessfully attempted to insert intravenous lines to begin the lethal injection process for over an hour. Death row inmate Christa Pike survived two failed rounds of Tennessee’s lethal injection protocol on Sept. 30 before the execution was halted. Pike, who was sentenced to death for the 1995 murder of Colleen Slemmer, is receiving medical care in a Nashville hospital. 

Buffalo Tops shooter files last-minute bid to avoid death penalty

Payton Gendron, who is already serving life without parole for killing 10 Black people in a racist mass shooting at a Buffalo supermarket in 2022, is asking a federal judge to throw out the case that could send him to death row. Defense attorneys filed the motion Monday — a day before jury selection was scheduled to begin — seeking to dismiss Gendron’s federal indictment. They argued that Black residents are underrepresented in the jury pool for New York’s Western District, according to WIVB and WKBW.

Tennessee | Christa Pike’s lawyer says she has not regained consciousness since her failed execution

Christa Pike has remained unconscious and on a ventilator at a hospital in the four days since her failed execution in Tennessee, and her prognosis might not be known for days more, one of her lawyers said Sunday. Little has been released about Pike’s condition since Wednesday night’s execution attempt. She has since remained hospitalized under guard as doctors try to get the massive dose of the barbiturate pentobarbital out of her system. When asked whether she ever regained consciousness after the execution attempt, Assistant Federal Defender Stephen Ferrell, Pike’s lawyer, said on CNN’s “State of the Union”: “Not that I am aware of.”