By Frank James
Did Texas's highest criminal court judge bar lawyers for a convicted murderer from filing a request to stay his execution merely because the clerk's office closed at 5 pm?
That's what Judge Sharon Keller is being accused of. And if she is found culpable by other judges, she could lose her judgeship.
All Things Considered talked with Chuck Lindell, the Austin American-Statesman reporter who has been following the case against Keller.
The execution of Michael Richard happened on the same day in 2007 the U.S. Supreme Court said it would take up the issue of the constitutionality of the use of lethal injection by states. (The following year, a sharply divided Supreme Court decided that Kentucky's lethal injection regimen of three drugs didn't violate the Constitution's ban on cruel and unusual punishment.")
Richard's defense lawyers filed paperwork late in the day requesting a stay and citing the Supreme Court. When they contacted the court clerk's office after 5 pm, a message was relayed to them from Judge Keller that the office was already closed.
That however violated the Texas Court of Criminal Appeals' then unwritten policies. According to a piece Lindell wrote for the American-Statesman about Keller's Monday misconduct hearing proceedings:
Judge Cheryl Johnson, called to testify by the prosecution, said Keller violated Court of Criminal Appeals procedure in 2007 by unilaterally denying defense lawyers the opportunity to file execution-day briefs after 5 p.m.
"She should have directed (the request to file late briefs) to me," said Johnson, who had been assigned by rotation to be the only judge expected to handle execution-day phone calls, faxes and filings from lawyers for the inmate, Michael Richard.
"And I would have told them that they could file," Johnson said. "It's an execution. They might be valid pleadings. I have no other way of knowing.
A decision in the judge's misconduct case is expected Thursday. But whatever a special master decides, as Lindell explained to ATC host Melissa Block, the controversy has caused changes.
"They now accept e-mail filings on execution days when before they required everything on paper. And they put their execution day procedures in writing so everyone knows what's supposed to happen."
Correction at 8:10 p.m. ET: Earlier, we got Chuck Lindell's first name wrong. Our apologies.