Hack’s Findings and Conclusions
The State Commission on Judicial Conduct concluded its hearing into the Judge Keller complaint on Thursday. It’s time for an assessment of what the Special Master received into evidence. We’ll call these Findings and Conclusions even though they won’t be written as such but they’ll serve similar purposes. Yes, I have some opinions about the whole affair so let’s get to them.
Four thoughts come to mind in an overall analysis of what happened back on September 25, 2007. First, none of this would have occurred had the Court of Criminal Appeals had in place a written set of execution protocol and procedure, detailing the mechanics of last-minute filings on behalf of a death row inmate whose execution is imminent. Second, the weight of cumulative testimony, I believe, effectively quashes the notion that the attorneys’ failure to tender any kind of pleadings to the clerk or any members of the court was due to “computer problems.” Third, if there be real, identifiable fault, it lies - unfortunately - at the feet of Mr. Richards’ writ lawyers, not Judge Keller nor anyone else with the Court. Lastly, it was Judge Keller’s general air of indifference, operating as a contributing force, which landed her before the Commission on this unprecedented complaint. Being indifferent to the process or, at times, to the defense bar, is not violation of a known judicial canon. But it is regrettable that this trait seems to overshadow the judge’s opinions and public statements. I daresay it will dog her from now on. She won’t be remembered for her years on the bench or her leadership while having served as Presiding Judge of the Court of Criminal Appeals. No, she’ll be known as the judge who refused to keep the Court’s door open to defense lawyers on the night that Michael Richard, whose conviction and death sentence had been reviewed and upheld on multiple occasions by various appellate courts, was finally put down. That’s the way our world works; that’s the way the media works. You see, Texas is a kill-crazy state where all we do in the legal community is sit around and think up ways to kill people. People outside this state think we - everybody involved be it prosecutors, judges, incompetent defense lawyers - like doing it. And any suggestion or notion, regardless whether supported by a shred of fact or not, that reinforces this belief; well, that’s ok and worthy of reporting.
So, what’s with a total lack of formal procedure at the Court in situations like this? The dueling testimony between Judge Cheryl Johnson, General Counsel Ed Marty, Staff Attorney Abel Acosta and Judge Keller about who said what to whom and when is the by-product of this ad hoc process as it existed at the Court on September 25 of ‘07. It’s really quite shameful that the Court did not have in place anything, at the very least, in writing. Of course, two months later, this procedure has now been memoralized and made available to all in print or online. It’s so American - a shitstorm has to hit before anything really of substance gets done. Well, now we can file via e-mail with the Court and the emergency filing procedures are in writing, all courtesy of the Richards’ execution. Amen.
And this business of a computer failure preventing the good folks at the Texas Defender Service from filing? Chip Babcock, Judge Keller’s lawyer, brought out on cross-examination of one of the two paralegals, served up for sacrifice by the Commission’s lawyer, that there was a veritable flurry of emails among all the actors in this Greek tragedy through the critical hours leading up to the closing of the courthouse at 5:00 p.m. and into the next hour. Babcock also compelled Greg Weircoch, one of the two writ lawyers for Richard, to concede that he had absolutely no computer or email problems on the day in question and remember, he had been in constant contact with co-counsel David Dow throughout the day. Dow’s explanation as to why he just didn’t sit down and fax what he had prior to 5:00 p.m. (too many pages) is weak at best, evasive at worst. On the weight of available, credible evidence, point to Keller.
The strongest argument against Keller is that her refusal to keep the clerk’s office open was a violation of a judicial canon and brought disrepute upon the judiciary because it paved the way for Richards’ scheduled execution in light of the Supreme Court’s announcement that it was reviewing the constitutionality of lethal injection. Yet, again, the weight of credible, plausible evidence from all sources establishes that the Texas Defender Service bungled this case in failing to manage properly the hours leading up to the purported attempt to file late and worse, exhibiting ignorance about how to file pleadings outside the confines of actually stepping up to the clerk’s office and handing it to a deputy clerk.
Dow was pressed by Babcock about the undeniable fact that neither he nor Weircoch ever filed anything with the Court of Criminal Appeals. Beside the windy argument about what is meant by the term “clerk” and “court,” the real issue came down to whether or not these experienced lawyers knew how to file something with an assigned judge. Dow, when pressed by Babcock on this crucial issue, responded that he did not remember, know about or think he could file directly with a judge of the Court of Criminal Appeals even though Rule 9.2, there for all the world to see, says that he can do just that. This is an astounding statement. Think of the times when you had to file something past 5:00 p.m. at the courthouse, be it a TRO, a writ in a family case or a brief that is due on that day. Did you simply walk away because the door was locked? Or did you call up the District Clerk (as I have done on one rare occasion) to ask that she let you in to personally file-stamp the pleading? Did you even call a judge to permit the same thing? We’ve all found ourselves in a similar situation and that’s exactly what we did; don’t deny it. And David Dow, a post-conviction writ veteran, says he didn’t even think about it, didn’t know that he could do that and therefore, made no attempt to file anything? That is an astounding statement. Keller’s expert witness, Austin lawyer Roy Greenwood, thought the same thing. Greenwood, who has argued about fifty times before the Court of Criminal Appeals, confirmed the fact that it’s common knowledge among all experienced practitioners with the Court that the physical confines of the Court closes at 5:00 p.m. sharp. Another point to the Keller team.
But Greenwood had other ideas and opinions about the actions and inaction of Richards’ lawyers and I think he has the measure over Keller’s opponents here. When asked whether a competent and diligent defense attorney would view existing rules as either prohibiting a late filing with the Court or not providing an avenue for same, Greenwood’s answer was terse and succint: “Not in my opinion.” I agree. And what’s with Dow sitting around on this fateful day, allowing two hours to pass, once he heard about the Supreme Court’s Baze ruling, before he ever gets on the horn to other lawyers about filing something, anything to prevent the execution? Why did he assign a lawyer with less than a year’s experience to draft this crucial pleading, all without any supervision or editing, until a little over a hour before 5:00 p.m. Last, and I think most damaging, Dow had two paralegals make the last-minute, desperate phone calls to the Court to inform personnel that TDS was having “computer problems” and wouldn’t be able to file before 5:00? I agree with Greenwood: Dow or Weircoch or both should have been contacting the Court, not a paralegal with no working knowledge of the Court or of any personnel. It’s just one more variation on “it’s my secretary’s fault” alibi which has grown about as thin as the leather sole on a Baltimore pimp’s alligator shoe. If anybody failed, it was the attorneys involved for their collective failure to file proper pleadings, even if it had to be in handwriting on a Big Chief tablet.
I don’t like the way that Judge Keller responded to this dynamic situation. Regardless of the fact that Dow and Weircoch frittered away precious time and, as distasteful as it sounds, hid behind a couple of paralegals to buy time from the Court, the condemned inmate deserved better than what he got on this particular day. His lawyers waited too long to decide what to do (even though they foresaw a Baze issue arising), made questionable delegations when they had to act, most likely elected an incorrect remedy to pursue relief for Richards and in the end, concocted some story about failed computers and Keller’s refusal to let them file last-minute pleadings (when in reality they never even attempted to file anything). Contrary to what The New York Times believes, they didn’t run out of time. Rather, Dow and Weircoch just shut down their efforts prematurely without exhausting all available avenues of relief. Yes, even in light of all that, Judge Keller could have put in a call to Judge Johnson regarding the plea for a late filing. But she didn’t and this omission simply had no bearing on the lawyers’ duty to pursue Richards’ claims diligently. Yeah, it was boorish behavior on Keller’s part but so what? She hates TDS and they hate her.
TDS was successful on putting out their particular version of what happened on September 25, 2007. That version was effectively dismantled at the special hearing held this week. Babcock had no trouble in compelling Dow to concede that he “spun” the story to the national media. Think of it - Dow readily admitted to embellishment at best, distortion at worst when describing what happened on that day. But there’s no denying his lapses and omissions and he’s certainly not one to deny that he created a storyline on the affair. And I know one thing. After the contentious cross-examination by Babcock, Dow’s concessions and Ed Marty’s statement that he ”wouldn’t trust Dow at all” anymore, I’d venture to say that the esteemed law professor from UH is persona non grata in the old palais d’justice in Austin from here on out.
A key point in this proceeding was made early on during the first day of testimony when Judge Johnson was being cross-examined by Babcock. Keller has been roundly vilified for her not having asked Ed Marty at the end of the day whether anyone had called regarding the Richard case. Indeed, that seemed to be the linchpin of the complaint made against her. Babcock asked Judge Johnson (the assigned judge to handle emergency writs on the evening in question) why she herself had not asked Marty if anyone had called on the case. Johnson answered that she assumed Marty would have told her if that was the case. Babcock then put it too her simply and fairly: wouldn’t it be fair for Judge Keller to make a similar assumption that Marty would have told Judge Johnson about his communication with Keller and TDS. In other words, isn’t Keller entitled to the same benefit of the doubt that we accord Judge Johnson in this situation? There’s no good, valid reason that we can’t, even when the judge and the defense bar have all these significant legal and philosophical differences. Is this hatred of Keller good enough reason to presume the worst? Unfortunately, for TDS and, regrettably I think, with most associated with the Texas Criminal Defense Lawyers Association, the answer appears to be yes, it is.
August 22nd, 2009 at 9:54 am
It’s a real shame that this had to happen. This process points out the real problem with death penalty litigation in Texas. No one seems interested in seeing that justice is done, only who is at fault that it is not done. Richards should have had his day in court, yes, but it appears the inevitable result would have been his execution anyway.
The trajedy of the situation is highlighted by the fact that the Institutional Division did not execute Richards until two and a half hours after the time scheduled for the execution, apparently waiting in anticipation of a stay that never occurred.