Legal Commentary

Press and most public still misunderstand issues in Keller judicial complaint

By Beldar

Regarding the Texas State Commission on Judicial Conduct's handling of the complaint made against Presiding Judge Sharon Keller in connection with the Michael Richard execution in 2007, Peggy Fikac of the Houston Chronicle's Austin bureau reported today on both sides' filing of formal objections to the findings of the special master who heard the evidence on the complaint, State District Judge David A. Berchelmann. Judge Berchelmann's report excoriated Richard's defense team but found that no formal sanctions should be imposed upon Judge Keller ? the bottom-line result that the complaining team is still protesting to the full Commission. However, the findings also contained some language critical of Judge Keller, to which her legal team is objecting in turn.

As with so much of the previous reporting on this matter, Ms. Fikac's article is not exactly wrong, but neither is it quite right. Both the state and national press have done a completely inadequate job of grasping and explaining what the relevant issues actually were. Instead, they've been repeating a skewed spin on the case that's most damning to Judge Keller, but that's also quite misleading because it's based on the perpetuation of a mistake made by the defense team.

Short titles are hard for me. Thus, I first blogged about this case back on October 4, 2007, in a post entitled Was Michael Richard executed because Presiding Judge Sharon Keller ordered the Texas Court of Criminal Appeals' doors closed at 5:00 p.m. before his emergency stay of execution application could be filed? I followed that up with: More facts received, and more yet to come, about Michael Richard's blocked application for a stay of execution. In those posts, I speculated that this entire dispute arose from a mistaken assumption on the part of someone on the Richard defense team about what they were actually trying to do. The trial evidence ended up verifying my hunches pretty closely, but the case is still widely misunderstood on a fundamental basis. And ironically, the misunderstanding results in both Judge Keller and the Richard defense team coming off worse than either deserves!

Here's what I posted today as a comment to Ms. Fikac's article in the Chronicle:

I have not yet read a single comment, pro or con, from anyone who understands what this case was about.

And of course, you can't tell that from the article, either, since the press can't seem to grasp what happened.

Michael Richard's defense team ? acting through a paralegal -- asked the wrong question altogether: Will you keep the courthouse open late?

There was never any reason to keep the courthouse open late, or even just the clerk's office open late. What the defense team needed to be doing ? what its actual lawyers knew, but hadn't instructed their paralegal about ? was arranging for the duty judge to accept an after-hours filing and hearing of an emergency matter. The applicable rule of Texas law permits these judges to do that ? and it doesn't matter whether it's in a public building that's "open" or on the 50 yard line of Memorial Stadium.

The press ? going along with Richard's defense team ? wants to make out as though Judge Keller was asked, "Will you agree to rule on this after closing time?" Well, that wasn't at all what she was asked. To the question she was asked, she gave the correct answer: "We close at 5."

You may think ? and the special master apparently thought ? that she should have gone further and figured out WHY the paralegal was asking to "keep the courthouse open." Maybe you think she should have then volunteered some advice and suggested the RIGHT question. But consider this: Do you want Texas judges to get into the business of giving corrective legal advice every time they see a lawyer doing something stupid? In fact, the canons of judicial ethics prohibit that, and for very good reasons.

There's no suggestion that Michael Richard died any less painlessly than every other inmate executed in Texas for the last several years. The U.S. Supreme Court case that was the basis for Richard's stay motion ended up AFFIRMING the constitutionality of lethal injection protocols. The judicial system had spoken: Michael Richard was to die for his capital crime, and to die without further delay; he was deprived of an unjustified windfall of a few more months at most. I count that as not a big deal in the greater scheme of things.

Finally: Go read the special master's actual report: http://www.scjc.state.tx.us/pdf/skeller/MastersFindings.pdf ... His synthesis of the facts is quite good.

Here's a link to all of the filings connected to the complaint.

And finally, here's a link to DRJ's guest post at Patterico's when Judge Berchelmann's findings first came out last month. I left quite a few comments to that post, and they track my initial and considered reactions after reading the findings.

Full post as published by BeldarBlog on February 18, 2010 (boomark / email).