Texas Judge Being Tried For Death-Row Appeal

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MELISSA BLOCK, host:

On September 25, 2007, Michael Richard was executed in Texas for the rape and murder of Marguerite Dixon 21 years earlier. Now, the highest-ranking Texas criminal judge is on trial. Judge Sharon Keller is charged with unethical conduct for improperly closing the court to Richard's last-minute appeal. Judge Keller began testifying in her own defense today.

Chuck Lindell is covering Judge Keller's trial for the Austin American-Statesman. And Chuck, why don't we go back to the execution day in 2007. Explain for us, please, why there was this last-minute flurry of activity by Michael Richard's lawyers trying to stop his execution that day.

Mr. CRAIG LINDELL (Reporter, Austin American-Statesman): Well, that morning, unexpectedly the U.S. Supreme Court said that it was going to accept acase deciding whether lethal injection was cruel and unusual punishment. So Michael Richard's lawyers thought that while this review was going on, stays would be issued in all executions, and they were trying to act on that.

BLOCK: So they were preparing briefs to file with Judge Keller.

Mr. LINDELL: With the Court of Criminal Appeals.

BLOCK: As the Texas Defender Service is trying to file these papers, the judge in this case, Judge Keller, had gone home early, I guess, to meet an oven repairman. So a request comes in to her over the phone to keep the clerk's office open. What happened?

Mr. LINDELL: She said no. The clerk then relayed that no back to the lawyers for Michael Richard.

BLOCK: And what's standard operating procedure with the clerk's office, if there is a request for them to stay open late? What happens?

Mr. LINDELL: Well, what should have happened was under the court's unwritten rules - they were unwritten at the time - the duty judge should have been called, the judge who was assigned to handle any last-minute communications on the Richard case.

BLOCK: Right, and this is Judge Cheryl Johnson, who's also testified at this trial of Judge Keller, saying she never got the request. And what did she tell the court?

Mr. LINDELL: Judge Johnson said that she should have been the one who was consulted about this request for a late filing. And then she was critical of Judge Keller for not sending the request her way.

BLOCK: And she said, I would have granted more time.

Mr. LINDELL: She certainly would have.

BLOCK: We should explain that it was just hours after all of this back and forth that afternoon that Michael Richard was executed - that same night.

Mr. LINDELL: Yes, he was executed that night, the last person executed until the court finally ruled.

BLOCK: The U.S. Supreme Court.

Mr. LINDELL: Yes.

BLOCK: What is Judge Keller's defense here?

Mr. LINDELL: That she did not intend to close the court to late filing and, in fact, could not have. There is a rule of Texas appellate procedure that says that you can go to any judge and ask them to take - accept the filing. And Michael Richard's lawyers did not. Therefore, they are the ones who are derelict in their duties.

BLOCK: That they should have gone to another judge.

Mr. LINDELL: Yes.

BLOCK: Chuck, this trial is being held before a special master. These are charges filed by the State Commission on Judicial Conduct. What happens at the end here?

Mr. LINDELL: When this ends, we all go home and wait for the judge to issue his findings of fact, which will go to the State Commission on Judicial Conduct for their review. And the commission will decide one of three options: whether to dismiss the charges; whether to censure Judge Keller; or whether to recommend that she be removed from office. That would kick off a whole new trial, before seven appellate judges, to decide whether that should happen or not.

BLOCK: I gather that the Texas Court of Appeals has now changed the way it handles business in these death penalty cases because of the uproar over this case of Michael Richard.

Mr. LINDELL: That's true. They now accept email 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.

BLOCK: And that's really one of the stunning things here - is that before this, there was no written guidance. This was all implicit, I gather.

Mr. LINDELL: That is correct. And there was not only no written guidance; there was no set procedure to inform everyone on the courts, the staff, what the procedures were.

BLOCK: For execution day appeals?

Mr. LINDELL: Correct.

BLOCK: Chuck Lindell, thank you very much.

Mr. LINDELL: You're welcome.

BLOCK: Chuck Lindell is a reporter with the Austin American-Statesman.

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