Judge Sharon Keller’s lawyer made his final arguments to the Texas Commission on Judicial Conduct.  He argues defensively that the protocol she was expected to follow was not in writing at the time.  He said the TCJC has completed a poor investigation.  He accused the lawyers for the executed killer, Michael Richard, of telling a "pack of lies" regarding the events.  

The prosecutor, actually a special counsel for the TCJC, argued that Judge Keller admitted that she knew the protocol, whether it was written or verbal. She admitted that she knew the protocol was mandatory.  The protocol required her to refer the lawyers to the duty judge, Cheryl Johnson.  Instead, she dealt with the lawyers’ request for more time herself.  

As the reader may recall, the lawyers for Michael Richard encountered computer trouble in trying to file a last minute motion.  The motion had a fair likelihood of success.  Richard was to be executed the next day.  So, the motion was critical.  They called the Criminal Court of Appeals.  The CCA is the final appeals court for criminal appeals.  The defense lawyers were eventually referred to Judge Keller.  They asked for more time.  Judge Keller said no.  She should have referred them to the duty judge Cheryl Johnson.  Indeed, most courts would have allowed the extra time, just because of the final nature of an execution.  See earlier posts (and here) about Judge Keller.  As Judge Berchelmann said, this was a grievous sin by any public servant. 

In following this story, I tend to think Judge Keller is normally a concerned, dedicated judge, and rather conservative.  It may have just been this one time, but I tend to believe that on this one day, she was impatient with the process that allows defense lawyers in death penalty cases to file motions at the very last minute.  It may have just been a bad day, but she showed poor judgment that one day.  Even judges are human.  This is a good lesson to anyone seeking justice in court. Judges do make mistakes.  Litigation is unpredictable in part because judges (and juries) are human.  

As I tell my clients all the time, you can have the best case and still lose.  Here, Michael Richard had good basis for a motion.  But, the motion was never filed……