Executed Man’s Wife Sues Judge Who Closed Courthouse Door

Death Penalty

Executed Man’s Wife Sues Judge Who Closed Courthouse Door

Posted Nov 7, 2007, 05:49 pm CST
By Martha Neil

Updated: Already facing a legal ethics complaint, a Texas appellate judge who refused to accept an eleventh-hour late filing in a death penalty appeal is now being sued by the executed man's wife.

The federal suit accuses Texas Court of Criminal Appeals Presiding Judge Sharon Keller of violating Michael Richard's civil rights by refusing to keep the courthouse open 20 minutes after its normal closing hour on Sept. 25 so that the appeal could be filed, according to the Associated Press and the Texas Moratorium Network law blog.

Richard was executed later that evening—the same day that the U.S. Supreme Court agreed to hear a Kentucky lethal injection case that has effectively created a national death penalty moratorium.

“He was denied due process. She basically stopped his appeal. Stopped his appeal from reaching the court,” Richard's wife, Marsha, tells Houston television station KHOU, which has posted an article about the case on its Web site.

“Why not give him a few extra minutes? We’re talking about literally somebody’s life,” says Marsha Richard.

As discussed in earlier ABAJournal.com posts, Keller's refusal to cooperate with Richard's counsel's request to wait for the filing has generated a firestorm of criticism—and a new policy, announced yesterday, that the court will now accept e-mail filings in death penalty appeals and similar emergency matters.

Richard's counsel says a computer breakdown caused the filing delay. Keller says she wasn't aware of the issue.

Updated at 7:04 p.m. CST.

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Posted by Bob - 1 year, 1 week, 5 days, 12 hours, 24 minutes ago

Sounds like murder to me. Give the judge the death penalty.
Posted by John G - 1 year, 1 week, 5 days, 10 hours, 57 minutes ago

Presumably to win her suit the widow will have to prove - on a balance of probabilities - that the filed appeal would have led to a stay of execution, as well as that the judge had the power to extend the filing deadline, and had a duty to do so. A bit uphill, especially in a state that loves to execute people (TX does over half the executions in the US, or some such large proportion.)

Compare the case in another state, much reported on, where the statute of limitations was held to bar a civil action (or defence) where the document was filed a day later than in the rules, but a day before the motions judge had told counsel to file it. The judge’s miscalculation was held not to justify a waiver of the limitation period by a day.

The TX case is a dramatic illustration of the age-old conflict between strict compliance with legal rules and ‘justice’ run by discretion in individual cases. Not everyone likes where the latter value can lead - witness minimum sentencing rules, etc etc.
Posted by Jim - 1 year, 1 week, 5 days, 10 hours, 25 minutes ago

Murder, my butt. That’s what the executed criminal committed, not the judge. If the appeal was so meritorious, why wasn’t it ready and filed two days before the deadline, or two weeks? If you want to blame someone besides the murderer, blame the appellate attorney who failed to plan their time appropriately.
Posted by John G - 1 year, 1 week, 5 days, 10 hours, 13 minutes ago

I had rather assumed that Bob’s comment was ironic. May one also assume that the attorney who is doing the work to sue the judge is not the same one who missed the filing time by 20 minutes? One understands the widow’s distress without having any sympathy for her legal claims.
Posted by Doug - 1 year, 1 week, 5 days, 9 hours, 51 minutes ago

I wonder what her theory for piercing absolute judicial immunity would be? Maybe some argument that a chief judge acting as an administrator versus acting as a judge is entitled only to qualified immunity? According to what I’ve read, the filing delay was caused by a series of computer crashes. So really it’s all Bill Gates’s fault.
Posted by Laura S. - 1 year, 1 week, 5 days, 9 hours, 19 minutes ago

I’m not a criminal lawyer, so I don’t know how long this guy’s attorney had to file this appeal. But, I’m guessing he had more than a few days, or even a few months. He probably had at least a year or two. The guy’s wife makes it sound like they had to file it on the last day, at the last minute. If it was that important, there is no reason for the attorney to wait that long to file the appeal.
Posted by Doug - 1 year, 1 week, 5 days, 7 hours, 26 minutes ago

David Dow, one of the attornies in question, wrote an op./ed. piece in the Washington Post about the incident, and the US Supreme Court’s subsequent inaction:
http://www.washingtonpost.com/wp-dyn/content/article/2007/10/31/AR2007103102546.html
Posted by bubba - 1 year, 1 week, 5 days, 6 hours, 18 minutes ago

http://www.nytimes.com/2007/10/25/us/25execute.html?ex=1351051200&en=fb849fcea7dfc4da&ei=5124&partner=permalink&exprod=permalink

nice to have the facts before commenting, eh?
Posted by John Paul Parks - 1 year, 1 week, 5 days, 4 hours, 40 minutes ago

I was under the impression that in civilized English-speaking jurisdictions, “the court is always open.“ They do speak a funny brand of English in Texas, and perhaps they are not civilized either.

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