SAN ANTONIO — A Texas judge who has drawn the ire of death penalty opponents and attorneys for closing her court with a condemned man’s last appeal in the works says the move was not a ruling on the merits of the request.
Judge Sharon Keller is telling her side of the story for the first time — nearly two years after Michael Wayne Richard was executed — from the witness stand at her own ethics trial.
She was to continue testifying today after being called late Tuesday to answer questions about her refusal to keep the Texas Court of Criminal Appeals open past 5 p.m. when Richard’s lawyers asked for more time to file their rushed appeal.
“I did not believe I was making a decision,” Keller, the court’s presiding judge, said during more than an hour of testimony Tuesday.
Keller was disputing prosecuting attorney Mike McKetta’s choice of words upon being asked whether Richard’s two convictions for a brutal 1986 rape-slaying or his numerous failed appeals mattered in her decision to not keep the court open late.
Parsing words has played no small role in the trial — from the exact words Keller uttered during a 1-2 minute call Sept. 25, 2007, about keeping the court open, to how “court” and “clerk’s office” were interpreted and used in the hours leading up to Richard’s execution.
Keller received a phone call about 4:45 p.m. that day from a court staffer who said lawyers running late with an appeal wanted to file after 5 p.m. Keller said no twice in the conversation.
The judge testified Tuesday that at the time she could remember nothing, not even a name, about the person scheduled for execution that night. She also said she never was told of computer troubles that Richard’s lawyers blame for their delayed filing.
“I didn’t know they were having trouble,” Keller said. “I knew they wanted us to stay after and I knew they weren’t ready to file.”
Keller said she didn’t think the request for more time was a substantive question relating to the merits of a filing. Under the court’s execution-day rules, any communication about the execution is supposed to be referred to the assigned judge on duty.
“I think it’s a close call,” Keller said. “I think it was not a substantive matter but I can understand why people say it was.”
The never-filed appeal provoked a nationwide outcry against Keller, nicknamed “Sharon Killer” among critics for her tough-on-crime reputation. Lawyers filed complaints to the state and one state lawmaker tried to have Keller impeached.
Among the five charges of judicial misconduct Keller faces is bringing discredit to the court over the saga. She is the highest-ranking judge in Texas ever put on trial by the state Commission on Judicial Conduct.
Before Keller took the stand, her attorney accused Richard’s lawyer, David Dow, of stoking the intense response to the case with an exaggerated and inaccurate narrative of what happened in the hours leading up the execution.
“If you had been more precise, perhaps Judge Keller wouldn’t be going through this right now,” said Chip Babcock, Keller’s attorney.
Dow defended his comments and his efforts to file an appeal while sparring with Babcock during an intense cross-examination. Dow said that upon being told the clerk wouldn’t accept any filings past 5 p.m., he presumed he was out of options.
“I think the clerk’s office is the court,” Dow said. “I think most lawyers assume the clerk is the court. I don’t draw a distinction between a clerk’s office and the court the way you do.”
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