death penalty news—-TEXAS

Aug. 13

TEXAS—-new execution date

Gerald Eldridge has been given a Nov. 17 execution date; it should be
considered serious.

(sources: Texas Department of Criminal Justice and Rick Halperin)


A Texas Judge on Trial: Closed to a Death-Row Appeal?

Soft-spoken and a devout Christian, Judge Sharon Keller presides as chief
justice of Texas' highest criminal court. She's also known as "Sharon
Killer" by her opponents, who are going to see her in court next week on
charges of judicial misconduct. They charge that Keller refused a
condemned man a last-minute appeal in 2007 and now she faces a trial in a
San Antonio courtroom that could lead to her removal and will certainly
focus wide attention on Texas' enthusiasm for the death penalty.

Keller finds herself at this pass because of a four-word sentence she
uttered on September 25, 2007: "We close at 5." According to a newspaper
interview with Keller in October 2007 and pretrial testimony last year,
she said those words to Ed Marty, general counsel for the Texas Court of
Criminal Appeals (CCA). As the court's logistics officer, Marty had called
the judge at the behest of lawyers for Michael Richard, 49, who had been
on death row for 2 decades and whose execution was scheduled for that
evening. The lawyers were allegedly having computer trouble and problems
getting last-minute paperwork to the Austin court. Keller was reportedly
at her home dealing with a repairman that afternoon when she she got the
request and made her reply. Richard's lawyers failed to meet the
deadline, and at 8:23 p.m. Richard was declared dead following a lethal

An outcry followed. "This execution proceeded because the highest criminal
court couldn't be bothered to stay an extra 20 minutes on the night of an
execution," Andrea Keilen, executive director of Texas Defender Service
told ABC News in 2007. Not only did Texas defense attorneys quickly file
complaints with the state's judicial oversight commission, in an
unprecedented move the National Association of Criminal Defense Lawyers
joined the filing. Newspapers across the state and nation weighed in with
scathing editorials and anti-death penalty campaigns went on the attack.
The Texas Moratorium Network set up

A year and a half later, in February, Keller was charged by the State
Commission on Judicial Conduct with "willfill and persistent" failure to
follow the CCA's protocols for last-minute appeals and for bringing public
discredit on the court. Opponents say her actions displayed a dogmatic
affinity for the death penalty. But her supporters, some of whom do not
share her conservative views, contend she was following the rules and was
not responsible for the shortcomings of defense attorneys. They also point
to Keller's work doubling the number of public defenders' offices in Texas
and boosting their budget from $19 million to $60 million.

A special master a judge named by the state supreme court for the
occasion has been appointed to preside over the fact-finding trial. San
Antonio District Judge David Berchelman Jr., a former member of the CCA,
can either recommend to the commission that the charges be dismissed, or
that Judge Keller be reprimanded or even removed from office by the state
supreme court.

Though she handily won her elections to the bench, Keller exhibited little
interest in politics during college, friends say. The bright daughter of a
Dallas entrepreneur and famed restauranteur "Cactus" Jack Keller, she
excelled in school and studied philosophy at Rice then law at Southern
Methodist University. But 1994, while working as an appellate attorney in
the Dallas prosecutor's office, she ran for a spot on the CCA and, thanks
to a Republican landslide on the coattails of George W. Bush, won her
seat. In her 2nd term she ran successfully for the top slot, the court's
presiding judge. Keller has consistently been part of the court's
conservative voting bloc and has said she saw her election as an
opportunity to balance the high court after several decades of domination
by judges inclined toward the defense bar. (However, there has always been
a high degree of support for the death penalty even among Democratic
judges in Texas.)

The genteel-looking Keller is expected to put up a fight, even though, so
far, she has been silent on the upcoming trial. In a written response to
the charges, she derided the defense attorney's claims that computer
trouble delayed their paperwork: "It did not take a computer to prepare
and timely file…it could have been hand written and the court would have
accepted it as Judge Keller informed the Commission."

She will also defend herself by discussing the man she is accused of
wronging: the executed Michael Richard. Richard has a long legal history
and a criminal record that evokes little sympathy. "By the time he was
executed," Keller wrote in her response to the charges, "Richard had two
trials, 2 direct appeals (including to the United States Supreme Court),
two state habeas corpus proceedings and 3 federal habeas corpus hearings
or motions." She added that the charge against her that Richard was not
accorded access to open courts or the right to be heard "is patently
without merit."

In 1986, 2 months after being released from his second prison term,
Richard killed Marguerite Lucille Dixon, 53, a nurse and mother of seven.
Dixon had invited him in for a cold glass of water after Richard had
knocked on her front door and asked if her van was for sale. 2 of her
children found her. She had been sexually assaulted, then killed and her
van and television stolen. A year later, Richard was on death row. After
confessing, Richard claimed he was innocent, but his appeals centered on a
history of alleged family abuse and his supposed IQ of 64. He told
reporters he had learned to read and write on death row.

But the handling of Richard's appeals process is what is being contested
by Keller's opponents. Richard won a new trial from the CCA because the
alleged abuse he had suffered at the hands of his father had not been
considered in his 1st trial, according to the appellate record. But
Richard was convicted again in 1995 and once again given the death
penalty, even after his mother and sister were allowed to testify about
the alleged abuse during the punishment phase of the trial. Following a
U.S. Supreme Court ruling prohibiting the execution of mentally retarded
prisoners, his lawyers appealed for another trial based on his alleged IQ
level. The CCA turned him down and that appeal was ongoing when the
Supreme Court suddenly opened a new avenue for appeal on the day Richard
was scheduled to die.

The high court announced it had agreed to hear arguments in Baze v Rees,
on whether Kentucky's use of lethal injections (the same method Texas
uses) violated constitutional proscriptions against cruel and unusual
punishment. Richard's attorneys with the Texas Defender Service hoped to
use the Baze case to win a delay, but they would have to go through the
CCA in Austin first before approaching the Supreme Court for a stay and,
as the execution was looming, they would have to act very quickly.
Frantically trying to assemble their paperwork the CCA did not permit
e-mail filings, but now does lawyers in Houston and Austin conferred over
the phone, back and forth. They claimed they were further slowed by
computer failures, an issue on which experts on both sides are expected to

One issue is whether Keller was emphatically rejecting any pleadings to
the court, or simply noting that the clerk's office closed at 5 p.m., as
required by state law. Keller's attorneys will most likely argue the
latter, saying that everyone knows that Texas appellate law provided for
after-hours filings directly to judges. Friends said Keller was bewildered
by the fallout. In the days just after the event, she told the Austin
American-Statesman that she was not given a reason why the attorneys
wanted the clerk's office to stay open. "They did not tell us they had
computer failure and given the late request, and with no reason given, I
just said, 'We close at 4.' I didn't really think of it as a decision as
much as a statement," the newspaper quoted Keller as saying.

Keller has turned to noted defense attorney Charles "Chip" Babcock he
represented Oprah Winfrey in 1998 when the talk show host was
unsuccessfully sued for slander by Texas cattlemen. Babcock told the
Austin American-Statesman he will question the "myth" of the computer
problem and the last-minute actions of Richard's appellate lawyers. "I
think our version is going to be that they just didn't do their job that
day," Babcock said. It is a tactic that Neal Manne, representing the Texas
Defenders Service, rejects as a "sideshow" designed to deflect from the
real issue Judge Keller's actions that afternoon.

One sobering what-if: even if Richard had gotten his appeal accepted by
the U.S. Supreme Court, he would most likely have extended his life by
only 8 months. The high court eventually upheld the constitutionality of
Kentucky's use of lethal injections.

(source: TIME Magazine)