That's the headline of a report by Texas Lawyer's Mary Alice Robbins. LINK
Contending that a death-row inmate could have filed a last-minute appeal to save his life, Texas Court of Criminal Appeals Presiding Judge Sharon Keller has asked a federal judge to dismiss the wrongful death and survivor suit that the inmate’s widow brought against Keller last month.
In her Dec. 13 motion to dismiss Richard v. Keller, et al., Keller contends that Michael Wayne Richard, through his counsel, failed to avail himself of Texas Rule of Appellate Procedure 9.2(a), which allows pleadings to be filed at any time directly with a judge on the CCA.
Marsha Richard, widow of the executed inmate, filed a suit against Keller on Nov. 11 in the U.S. District Court for the Western District in Austin. U.S. District Judge Lee Yeakel presides over the case.
The widow alleges in her original complaint that Keller, “without any authority to do so, or in the alternative, in her administrative function,” prevented Michael Richard from filing an appeal Sept. 25 to stop his execution.
Keller allegedly had declined to keep the CCA clerk’s office open past the normal closing time of 5 p.m. on Sept. 25. Texas Defender Service (TDS) litigation director David Dow, a professor at the University of Houston Law Center, had encountered computer problems while working on the writs of prohibition and habeas corpus TDS had prepared in an effort to stop Richard’s execution. Earlier that day, the U.S. Supreme Court had granted a petition for writ of certiorari in Baze v. Rees, a Kentucky case in which two death-row inmates allege that the chemicals used in lethal injections constitute cruel and unusual punishment. Texas uses those same chemicals for executions. TDS had addressed the lethal injection issue in the documents they were unable to file with the CCA after 5 p.m. [See “Out of Time,” Texas Lawyer, Nov. 19, 2007, page 1.]
Marsha Richard alleges in her complaint that Keller ordered the CCA’s clerk not to accept any paperwork for Michael Richard after 5 p.m. on Sept. 25.
But Keller contends in her motion to dismiss that while the clerk’s office closed in keeping with Texas Government Code §658.005(a), which sets the operating hours for state agencies as 8 a.m. to 5 p.m., the CCA remained open. Judges remained at the courthouse to accept any motions, according to Keller’s motion.