Future Forum: Guilt, Innocence, and the Death Penalty 
The Judgment of Sharon Keller
As she goes on trial this month, nearly everyone—journalists, lawyers, and even some of her colleagues—is calling for her head, but is the presiding judge of the Court of Criminal Appeals the monster she’s been made out to be?
joe says: And Suzanne, what kind of thing is that to say: compassion is not a word in law texts. Does it have to be? Do you really think that compassion plays no role in judging a person in court? Of course it does. And do you really mean to say you want a legal system that does not consider its impact on the suffering of human beings and some way to relieve it? Compassion is fundamental to all major religions and should definitely be fundamental to our legal system. In fact, compassion for the victim in this case is probably what sealed the murderer’s fate. A truly moral society must consider people’s suffering - in and out of court - and how to relieve it. If this guy was truly retarded and abused by a sadistic father, surely that should be (and was) considered. But you want it otherwise. Hmmm. (August 21st, 2009 at 7:46pm)
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By the time Keller won the top job, the CCA had already begun to change, becoming more moderate, partly in reaction to the tumult of the previous years. After Cathy Cochran was appointed, in 2001, the court settled into a balanced existence, with three on the far right (Keller, Barbara Hervey, and Mike Keasler), three on the near left (Price, Johnson, and Larry Meyers), and three in the center (Cochran, Paul Womack, and Charles Holcomb). Cochran, a former defense lawyer, prosecutor, and law professor, in particular helped moderate the CCA. She is, defense attorney and legal analyst Brian Wice told me, “the intellectual heart and soul of the court.”
The court may have become more stable, but that didn’t mean the judges followed their leader. Keller, nicknamed “Mother Superior” by Meyers, was a tireless worker who would take on extra opinions when other judges fell behind. But she had never been, as she once acknowledged, a “leader-type person.” She often kept to herself, and she didn’t always take into account the wishes of her colleagues. “She causes resentment among other judges,” says a former court employee. “She’s not collaborative at all.”
In 2002 Keller unilaterally changed the group the CCA had chosen to train court-appointed lawyers from the Texas Criminal Defense Lawyers Association, which the other judges preferred, to an Austin organization called Dave’s Bar. The following year the court refused to renew the grant. That year the court also fired its longtime general counsel, Rick Wetzel, who had become a close ally of Keller’s, a decision that made her very unhappy and alienated her further.
About this time other judges began making conscious efforts to repair some of the problems in the state justice system. In 2004 Hervey began meeting with state lawmakers to help create more innocence projects (nonprofit groups, often based in law schools, that work to exonerate the wrongfully imprisoned). In 2006, under the leadership of Cochran and Johnson, the court established rules for helping to identify and remove incompetent court-appointed appellate attorneys. Two years later, at the behest of Hervey, the court created the Criminal Justice Integrity Unit to look into the causes of the astounding number of wrongful convictions in the state.
But as the court moderated, Keller, with a few exceptions, did not. In the 2006 election for presiding judge, Price noted how Keller had dissented more than any other judge. “Judge Keller has lost the confidence of the court,” he said, adding, “She keeps going to the right as far as she can.” Other judges might compromise principles to get votes, but not Keller—she stayed true to her conservative, pro-prosecutor ideals. Defense attorney Keith S. Hampton, who has argued many cases before the CCA, says, “I don’t see her as being nasty or mean-spirited to the defense. She walks through life with blinders on. I think there’s a blank in her experience.”
As usual, Keller was the first judge at the office on September 25, 2007, arriving at about 6. All the judges knew it was an execution day—Ed Marty, the general counsel (a kind of all-powerful legal office manager), had previously sent around a list of upcoming executions, with each one assigned to a duty judge. “The key to all death penalty cases is the duty judge,” Wetzel told me. “Internally the duty judge needs to get it together and garner the votes to determine the court’s decision.” That night the duty judge was Johnson, and she, Price, and Womack had planned to stay into the night in anticipation of late filings for Richard’s execution. They would be joined by other staff, including Marty, a twenty-year Army veteran and former Smith County assistant DA, who’d taken over for Wetzel after he was fired.
No one doubted Michael Richard’s guilt. In 1986 he had raped and killed Marguerite Dixon, a mother of seven, in Hockley, near Houston. Richard, whose IQ was 64, six points below the standard used in Texas to determine mental retardation, had been on death row since 1987. In fact, he had had his first conviction overturned by the CCA in 1992 because the jury hadn’t been told to consider his childhood (he had been beaten by his father with whips and belts) during the punishment phase. He had been convicted again, in 1995, but in 2002 the U.S. Supreme Court decided Atkins v. Virginia, which held that states could not execute the mentally disabled. Richard’s lawyers filed a writ of habeas corpus in state court based on this claim, and the CCA sent his case back to the trial court to see if he was indeed mentally disabled. The trial judge said he wasn’t—and so did the CCA. The execution was on again.
On September 17, 2007, Richard’s attorneys, who were part of the Texas Defender Service—a nonprofit group with offices in Houston and Austin that defends many of the prisoners on death row—filed a supplemental federal claim based on the Atkins decision, contending that Richard’s mental state had never been adequately presented. “There’s a line with these cases, and people are on one side or the other,” says David Dow, TDS’s litigation director and a University of Houston law professor. “Richard was clearly on the mentally retarded side of the line.”
At 9 a.m. on September 25, the U.S. Supreme Court announced it had agreed to hear Baze v. Rees, a Kentucky case that raised the issue of whether the chemicals used in lethal injections constituted cruel and unusual punishment. Though the court would not decide Baze for another six and a half months, its decision to consider the issue meant that death penalty appellate attorneys all over the country could challenge impending executions. The TDS lawyers had a new weapon, but to get the Supreme Court to weigh in on Richard’s case, they first had to exhaust their claims with the CCA, and they didn’t have much time. TDS lawyer Greg Wiercioch e-mailed Dow, who got the message after teaching a contracts class. At 11, Dow, Wiercioch, and six other TDS lawyers had a phone conference to figure out how to proceed. Dow and Alma Lagarda—a lawyer in the Houston office—would work the Baze claim while Wiercioch would keep working the Atkins claim.
At 11:29, Marty sent out an e-mail making sure that all the judges knew about the Supreme Court’s intention to hear Baze. At some point the judges polled themselves and found they were 5—4 against granting a stay. Marty began drafting an order denying the motion while Price began drafting a dissent. Sometime after lunch Keller left the office to meet her repairman.
Around two, Baxter Morgan, an assistant attorney general, called Wiercioch. The state attorney general’s office represents the prison system and on execution day ensures there are no outstanding defense claims pending. Wiercioch told Morgan that the TDS was working on a lethal injection claim. At 2:40, Marty sent around an e-mail, “Michael Wayne Richard update,” saying he had just talked with the Harris County DA’s office, who said the TDS lawyers were filing a lethal injection writ.
At 3:30 Lagarda finished her draft of the TDS filing, which included three things: a motion to file a writ of prohibition, a petition to file a successor writ of habeas corpus, and a motion for a stay of execution. Dow edited the draft, and when he was finished, at about 4, the appeal was 107 pages long. The plan was to e-mail it back to Lagarda, who would add the necessary attachments and send it to the Austin office, which would print it out, make eleven copies, and hand-deliver it to the CCA clerk’s office, about a mile away, just north of the state capitol. The CCA, unlike most high courts, did not accept e-mail filings.
But Dow wasn’t able to e-mail the document to Lagarda. “I thought it was a server problem,” he told me. By the time the problem was fixed, at about 4:30, Dow realized how little time they had left. So he decided not to file a writ of habeas corpus, just the other two motions. Still, they needed more time.
Dow told Lagarda to ask Austin-based paralegal Rindy Fox to call Abel Acosta, who has been the CCA’s chief deputy clerk since 1999. “Rindy has a relationship with Abel,” Dow told me. “She has routinely called him for five years now.” Fox was on the way home from a doctor’s appointment when she called Acosta, at about 4:40. According to the Commission on Judicial Conduct’s “factual allegations” (which, since they are allegations, will be a source of contention at the trial), she asked that the court accept a late filing. But Keller’s attorney, Chip Babcock, says that “according to Acosta, [Fox] did not state the name of the case (although he knew it related to an execution) and did not state what it was that the TDS wished to file.” Acosta told Fox that the clerk’s office closed at 5 but he’d see if the court would accept a late filing. He called Marty, who called Keller. (Acosta declined to be interviewed for this story.)
“I got a phone call shortly before five,” Keller told the Austin American-Statesman, “and was told that the defendant had asked us to stay open. I asked why, and no reason was given. And I know that that is not what other people have said, but that’s the truth. 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 five.’ I didn’t really think of it as a decision as much as a statement.”
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