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
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