Legal News

When the Clock Strikes Five: Pregaming the Sharon Keller Trial

By Ashby Jones

It’s hard for us not to be compelled by the Sharon Keller story. An impeachment trial for Keller, the presiding judge of the Texas Court of Criminal Appeals, is slated to start on August 17. At issue: whether and to what degree Keller erred one day back in 2007 when she closed the courthouse doors at 5 p.m., barring a death-row inmate from filing an appeal. The defendant was executed later in the day. According to a recent story in the Austin American-Statesman, Keller and her lawyers have previewed what one of their arguments might be.

But before we get to that, let’s bring you up to speed. Keller is the presiding judge of the Texas Court of Criminal Appeals, which is the equivalent to a state supreme court, but for criminal matters. As such, she’s the senior-most criminal judge in Texas.

On September 25, 2007, the U.S. Supreme Court decided to consider the constitutionality of lethal injection. In response, a Texas death-row inmate named Michael Richard sought to appeal his death sentence to the Texas Court of Criminal Appeals. But Keller refused to keep the court open after 5:00 pm to allow Richard's counsel to have the time to prepare the appeal. Richard was executed later that day.

"It's one thing for a banker to close shop at 5 o'clock sharp," said Texas state legislator Lou Burnam, back in February. "But a public official who stands between a human being and the death chamber must be held to a higher standard."

For her part, Keller has said that she was just following the court's long-standing practice to close on time. But that’s reportedly only part of what Keller will argue during her impeachment trial. According to the American-Statesman, Keller will also argue that that defense lawyers fabricated - or at least exaggerated - computer problems the day Texas executed Michael Richard.

The American-Statesman writes that the attack, “seeks to undermine the narrative that has emerged against the judge: that she refused a reasonable request to keep the Texas Court of Criminal Appeals open past 5 p.m., penalizing Richard for events outside his control - computer breakdowns experienced by his lawyers.”

In response, Neal Manne, a lawyer representing the Texas Defender Service, a nonprofit legal agency that represented Richard, told the paper that questions about computer problems are “a legally irrelevant sideshow.”

Manne admitted to the American-Statesman that they “might have been a few minutes late even if there were no e-mail problems at all. But the question is: What did (Keller) do and was it appropriate? It’s a classic legal defense to create a credibility contest over something that doesn’t matter anyway.”

LBers, we’ve blogged about this in the past, but we’d love to get your take on it again. On the one hand, Keller might argue formalism: rules are rules. The courthouse closes at 5; if the timing doesn’t work out for you, tough. She might also gain some traction with a slippery-slope argument: if we allow certain exceptions, where do we draw the line at other exceptions?

On the other hand, Richard’s supporters might argue of course, that you draw the line here: when a prisoner is slated to be executed barring an exception; in other words, when life is at stake. Where do you come down?

Full post as published by Law Blog - WSJ.com on August 04, 2009 (boomark / email).