10-12-07 mistakes in death penalty appeal

8/8/2019 10-12-07 Mistakes in Death Penalty Appeal

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MISTAKES IN A LAST-MINUTE DEATH APPEAL

Grievances Filed by Criminal Attorneys across the State; Intentional

mishandling of the request for an extension of the filing deadline by

Judge Sharon Keller reflects the mean-spirited, biased, and callous nature

of not only those who advocate but those who enforce the ultimate

punishment.

Last minute appeals for a stay of execution are inevitable in death penalty

cases. It is part of the death drama. At times these frantic attempts to stop the

State from extinguishing a human life have disastrous consequences.

On September 25, 2007 Michael Wayne Richard was scheduled to be put to

death by lethal injection in the Texas death chamber at the Huntsville state

prison. He was the only inmate in the nation scheduled for execution thatday.

Twenty years earlier, Richard had been found guilty of the rape and murder

of Marquerite Dixon in Harris County. He had been offered a plea bargain

but rejected the deal in favor of trial. He rolled the dice and lost.

On the morning of September 25, 2007 the United States Supreme Court

granted certiorari in the case of Ralph Baze and John C. Bowling, two

convicted double murderers, who challenged the constitutionality of lethalinjection as it is administered in the State of Kentucky.

This action by the Supreme Court paved the way for Richards attorney,

David Dow, to seek a stay of execution for his clients scheduled 6:00 p.m.

execution. Dow, who runs the Texas Innocence Network at the University of

Houston Law Center, and others began scrambling to prepare a 108-page

petition in support of the request for a stay.

The Clerks Office for the Texas Court of Criminal Appeals closes at 5:00

p.m. That is the filing deadline. The court has a strict policy disfavoringlate filings. The Richard legal team was aware of this policy, adding a sense

of urgency to their need to not only get their legal documents timely filed

with the appeals court but to allow time to submit a stay request directly to

the U.S. Supreme Court should the state request be denied.


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Judges with the Court of Criminal Appeals anticipated a stay request in the

Richard case. Judge Paul Womack stayed late at the court just for that

reason.

It was reasonable to expect an effort would be made with some haste in

light of the Supreme Court (action), Womack told the Houston

CHRONICLE. It was an important issue. I wanted to be sure to be available

in case it was raised.

Judge Cheryl Johnson had been assigned to handle any late motions by

Richards attorneys. She was present at the court to entertain those motions.

Judge Cathy Cochran left the court early, but only because she knew other

judges and court personnel were on hand to deal with the Richard case.

A number of judges stayed very late that evening, waiting for a filing from

the defense attorney, Cochran told the CHRONICLE. I would definitely

accept anything at any time from someone who was about to be executed.

Then the unexpected happened. The computers being utilized by Richards

attorneys to prepare that 108-page petition crashed. By the time the

computer glitch was corrected, it had become apparent that the attorneys

could not meet the 5:00 p.m. filing deadline. Dow called the clerks office,

and, according to the attorney, informed someone in the clerks office

about the computer problem and requested that the clerks office stay open

for an additional twenty or thirty minutes.

Someone in the clerks office informed Presiding Judge Sharon Keller

about Dows request to keep the clerks office open for the additional period.

Without consulting with the other judges, including Judge Johnson who had

been assigned the Richard case, Judge Keller refused to extend the 5:00 p.m.

filing deadline.

It is unclear from the public record whether Richards defense teamattempted to secure a stay from the U.S. Supreme Court. The CHRONICLE

reported that lawyers said that without a ruling by the Texas Court of

Criminal Appeals on Richards appeal, the U.S. Supreme Court couldnt

consider it.

Richard was executed as scheduled.


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Id like my family to take care of each other, he said before his death. I

love you, Angel. Lets ride. I guess this is it.

He was pronounced dead at 8:23 p.m., becoming the 47th person executed in

America, and the 26th executed in Texas, in 2007.

In the wake of the Richard execution, Judge Keller came under state and

national criticism for her refusal to extend the 5:00 p.m. filing deadline.

Youre asking me whether something different would have happened if we

had stayed open, Keller told the CHRONICLE, and I think the question

ought to be why didnt they [Richards attorneys] file something on time?

They had all day.

Dow called Kellers reasoning outrageous. Keller defended her position,

saying that the lawyer did not give a reason for the request for more time.

Dow refuted this, saying that he informed the clerks office about the

computer problem.

Jim Harrington, director of the Texas Civil Rights Project, was quick to

launch his criticism against Keller for refusing to extend the filing deadline.

When I saw that, I think I would just describe my reaction as stunningly

unconscionable, Harrington told the CHRONICLE. There has to be some

kind of accountability for this.

Judge Johnson said he learned about Kellers decision from the Austin

AMERICAN-STATEMAN, and was in utter dismay.

And I was angry, she told the CHRONICLE. If I am in charge of the

execution, I ought to have known about these things, and I ought to have

been asked whether I was willing to say late and accept those filings.

The defense team may also face criticism for not contacting Judge Johnson

directly. Dow said he spoke to someone in the clerks office and informed

that someone of the computer problem. At 4:30 p.m., the question that

could have been asked by Dow of the clerks office was the name of the

judge assigned to handle the Richard case. The attorney should have

requested, and probably would have been granted, a telephone conference


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with Judge Johnson. There is more than a reasonable probability that she

would have ordered the clerks office to accept any late filing by the defense

team, given the gravity of the issues involved. It seems unfathomable that a

fair and impartial judge, without a warped amoral political agenda, would

not have allowed a late filing.

The misjudgments of the Richard defense team notwithstanding, Judge

Kellers refusal to extend the filing deadline was, to say the least, callous,

inhumane and more probably stunningly unconscionable as Jim

Harrington said. CHRONICLE columnist Rick Casey had this to say about

Keller:

Sharon Keller, Texas top judge on criminal matters, may have shocked

much of the nation . when she ordered a clerk not to stay open an extra 20

minutes to accept a last-minute appeal for a man on death row.

But she didnt shock those who know her.

Twenty Texas lawyers recently filed a formal judicial misconduct complaint

with the Court of Criminal Appeals against Keller in the wake of the

Richard execution. The complaint, according to press reports, accuses the

states top judge of violating the executed mans constitutional rights.

Judge Kellers actions denied Michael Richard two constitutional rights,

access to the courts and due process, which led to his execution, the

complaint states. Her actions also brought the integrity of the Texas

judiciary and her court into disrepute

The complaint was signed by Broadus Spivey, former president of the states

bar association; Houston criminal defense attorney Dick DeGuerin;

University of Houston law professor Mike Oliva; former appellate judge

Michol OConnor; state Rep. Harold Durton, D-Houston; and former Nueces

County Attorney Mike Westergreen. These lawyers are being represented in

the complaint by Jim Harrington

I think its probably reflective of her own personal bias in this case about

capital punishment and her lack of respect for the rights of defendants, the

rights they have under the constitution, Harrington told the CHRONICLE.


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10-12-07 mistakes in death penalty appeal

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