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Criminal Justice

Top Texas Judge Faces Ethics Case Over Late Filing Refused on Inmate’s Execution Day

Posted Feb 19, 2009 6:17 PM CDT
By Martha Neil

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The State Commission on Judicial Conduct filed an ethics complaint today against the presiding judge of the Texas Court of Criminal Appeals concerning her controversial refusal to accept a late filing in a death penalty case on the day of the inmate's scheduled execution.

The commission's complaint (PDF) against Judge Sharon Keller, the state's top criminal court judge, alleges that her "willful and persistent failure" to follow the court's execution-day procedures on Sept. 25, 2007 "constitutes incompetence in the performance of duties of office,” reports the Austin American-Statesman in the newspaper's Austin Legal blog.

The inmate on whose behalf the appeal was attempted, Michael Wayne Richard, was executed at approximately 8:20 p.m., a little over three hours after a court official, at Keller's direction, told his counsel that the clerk's office would not stay open approximately 20 minutes after its usual closing time to accept a late filing in his case, according to the commission.

Specifically, Keller violated execution-day procedures by not referring the late-filing request to the designated judge in charge of Richard's execution, the complaint contends.

"In addition, Judge Keller knew that it had been common in the past to receive late pleadings on execution days after the clerk's office closed, and she knew that the execution-day procedures called for the designated judge to remain available after hours to receive last-minute communications regarding the scheduled execution," it continues.

In Richard's case, too, Keller knew at the time she directed the clerk's office to close at its usual time, that the appeal planned by his counsel was based on the U.S. Supreme Court's grant of certiorari that morning, in Baze v. Rees, the complaint states. That case contended that the lethal injection method used in Kentucky constituted cruel and unusual punishment; Texas also executes inmates by lethal injection.

Keller referred the newspaper's request for comment to her lawyer, Chip Babcock of Dallas, who did not immediately return its phone call.

Additional coverage:

Associated Press: "Texas judge charged with blocking execution appeal"

ABAJournal.com: "Storm Brews Over TX Judge Who Refused Late Capital Appeal"

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