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Appellate Practice

Did Top Texas Judge’s Testimony Open Door to Wrongful Death Suit?

Posted Nov 6, 2009 1:10 PM CDT
By Martha Neil

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Contending that a top Texas appellate judge misled a federal appeals court that dismissed a wrongful death claim by the wife and daughter of an executed inmate, a civil rights group has asked a federal judge to reopen the case .

It concerns a controversial refusal by Texas Court of Appeals Judge Sharon Keller to keep the court open long enough on Sept. 25, 2007 for lawyers to make a last-minute appeal on behalf of Michael Richard, based on a then-recent U.S. Supreme Court ruling. He was executed later that same evening.

The federal wrongful death suit was dismissed after Keller, who is the court's presiding judge, claimed judicial immunity. But in later testimony in a trial this year in a legal ethics case over Keller's alleged violation of execution procedures, she said she wasn't bound by the procedures because they applied to judges and she was acting in an administrative capacity when she refused to keep the court open after 5 p.m., reports the Austin American-Statesman.

"You can't have it both ways," director Jim Harrington of the Texas Civil Rights Project tells the newspaper, adding that judges acting in an administrative capacity is not immune from suit. "I think this speaks volumes about her integrity and her truthfulness," he says.

The newspaper attempted unsuccessfully yesterday to reach Keller's lawyer, Chip Babcock, for a response.

Additional details are provided by an Associated Press article about the attempt to reopen the case.

Earlier coverage:

ABAJournal.com (Aug. 2009): "Judge Says Refusing Late Capital Appeal Didn’t Break Court Rules"

ABAJournal.com (Nov. 2007): "Executed Man’s Wife Sues Judge Who Closed Courthouse Door"

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