A shame, and a surprise, what Keller did

Appeals judge's 9-to-5 justice seems shocking to one who has worked on the court

By JOAN M. CHEEVERCopyright 2007 Houston Chronicle
Oct. 20, 2007, 3:13PM

When I first heard the story about the execution of Michael Richard after the presiding judge on the Texas Court of Criminal Appeals refused to keep the clerk's office open an extra 20 minutes, when his lawyers incurred a late-afternoon computer crash causing the delay, I thought it was a joke.

I don't know why I was so surprised to find that the story was real. Sometimes, especially in Texas death penalty law, you just can't make this stuff up.

I shouldn't be taken aback. After all, the Lone Star state leads the nation in executions (405 of the 1,099 men and women who have been executed since the return of the death penalty in 1977).

Texas was the first state to use the new execution style lethal injection with Charlie Brooks in 1982, and had a governor (now president) who laughed at Karla Faye Tucker's clemency request. "Please don't kill me," Bush whimpered, his lips pursed in mock desperation, to a shocked Tucker Carlson, who was writing a profile about Bush for a national magazine.

Texas is the same state in which a judge said that while you are entitled to legal counsel at your death penalty trial, it's OK if your lawyer sleeps through most of it. In that same case, two out of three federal judges from the 5th Circuit Court of Appeals refused to reverse a lower court ruling, blaming the defendant, Calvin Burdine, for not keeping accurate records of the times his lawyer was sleeping. Sufficiently embarrassed, the full 5th Circuit, in an unprecedented move, reversed their fellow colleagues a year later.

Sept. 25 was a day of surprises. The U.S. Supreme Court's announcement of its decision to review the issue of cruel and unusual punishment and lethal injection on the same day of Richard's execution was unexpected. It was really the first time that the method of execution, by lethal injection, had ever been looked at, seriously, by the Supreme Court. The high court's stay of execution in the case of two Kentucky death row inmates put the brakes on scheduled executions across the United States. Well, all except Texas.

The word from the Supremes just didn't seem to apply to Texas. As quick as a hiccup, Texas Court of Criminal Appeals Presiding Judge Sharon Keller denied Richard's lawyers the 20 minutes they needed to print the darn thing out and get it to the court —11 copies of Richard's 108-page petition and get it to the court. E-mails aren't allowed. And I guess a frantic, pleading phone call doesn't count, either.

Keller didn't even pick up the phone and call the other judges on the court to get their opinions. At least two of them have said they were hanging around the court that evening, just waiting for Richard's application. The judges were ready to vote. The U.S. Supremes couldn't step in, procedurally, unless and until the Texas judges called it first.

All the Texas judges had to have been available by phone for this vote. At least that's what they are supposed to do at the Texas Court of Criminal Appeals, most especially in the hours before an execution. At least that's what they did in 1983, when I worked there as a briefing attorney. In the weeks and days and, most especially, on the day and in the hours leading up to a midnight execution, everyone knew about it — the lawyers, the court clerk, the clerical staff, even the nightly cleaning crew.

The air was thick with tension on "those days," especially in "the bullpen," the nickname of the large room where four of us worked, side by side, because the court had run out of space for our offices. It was the unofficial headquarters, the office water cooler — for all the new briefing attorneys to exchange gossip, pitch legal strategy or chat about some nuance of case law.
No one went out for lunch on the day of or a few days before an execution; some high-strung briefing attorneys could barely keep breakfast down.

It's hard for me to understand exactly what happened on Sept. 25. By the time I had left the court in 1984, only three men had been executed in Texas. The number is now 405. Has the Texas Court of Criminal Appeals become so desensitized to executions that it can't stop the killing machine for an extra 20 minutes?

Even on a day when there is an 11th-hour and very unexpected announcement from the U.S. Supreme Court that it will review a crucial death penalty issue, everyone knows it takes hours for the defendant's appellate lawyers to review stacks of appellate briefs to see if the "out of left field" the cruel and unusual punishment/lethal injection claim was raised earlier. Then there is a quick strategy session and a race to the computer to crank out a 108-page application to stop the execution based on the U.S. Supreme Court's order.

I can't imagine the pandemonium in that law office when, out of the blue, their computer crashed, making a 5 p.m. deadline of 11 hard copies absolutely impossible. All of this was taking place one hour before the execution.

Dutifully, Michael Richard's lawyers called the clerk at the Texas Court of Criminal Appeals to explain the emergency and ask for 20 minutes. It's on the computer, but e-mails are prohibited. Judge Keller says, "No." Our office closes at 5 p.m. sharp. Keller wasn't going to wait, not even an extra minute, much less 20.

Two hours later, 49-year-old Michael Richard, with an IQ of 64, well below the U.S. Supreme Court's 70 IQ mark when it banned executions of the mentally retarded in 2002, was dead.
To many people, especially some of the family members of Richard's victim, 53-year-old Lucille Dixon, a nurse and mother of seven, justice had already been delayed for more than two decades. But 20 more minutes?

No, siree, Bob. Keller showed us that Texas' killing machine stops for no man, no surprise announcement by the U.S. Supreme Court earlier in the day and no computer crash.
On Sept. 25, the eyes of the United States and the world, were on Texas, and still are. On Sept. 30, members of the European Parliament called for an immediate moratorium on executions, and overwhelmingly voted in favor, 504-45, to mark Oct. 10 as the official European Day against the Death Penalty.

But I still would like to know: Did Keller close the office at 5 p.m. because she's dumb or just mean?

Cheever is a former briefing attorney for the Texas Court of Criminal Appeals and the author of Back From the Dead: One woman's search for the men who walked off America's death row (John Wiley & Sons 2006).