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 100,000 attend the Martin Luther King Day march held ever year here in San Antonio.  Mayor Julian Castro says it is because our significant Hispanic population identifies with the civil rights struggle that King epitomizes.  We were fortunate here not to have the clashes and strikes in the 60’s and 70′ seen elsewhere during the civil rights movement.  In fact, San Antonio city leaders saw the approaching tide early.  They voluntarily dropped the many vestiges of segregation in the 1950’s and 1960’s.  Our city does suppprt ML King Day across the board.  Many large businesses here allow their employees time off to attend the march and some even organize busses to transport employees tohe march.  While far from perfect, we certainly do better than many communities across the country. 

Without Martin Luther King and Lyndon B Johnson, there would never have been a Civil Rights Act of 1964.  The Civil Rights Act of 1964 lead to all the other employment statutes that followed.  We should all be grateful. 

You are asked to sign a non-compete agreement by your employer.  But, you are not sure you want to sign.  What do you do?  One IBM management employee deliberately signed in the wrong place.  He wanted more time to think about signing it.  He signed in the space where the employer would sign.  Then, he went to work for Dell.   The Second Circuit Court of Appeals finds for the employee in this recent decision, IBM v. Johnson.  See post.  

 

 It is a critical thing to understand in every lawsuit.  Many people just flat do not remember what happened.  Ed Marty, the general counsel for the Court of Criminal Appeals, in the end, simply admitted that he did not remember what he told Judge Johnson.  This from a trained lawyer with many years experience.  

In one of my law school classes, a professor told a story about something another professor did once to illustrate this point.  The professor had someone come by right at the start of class and pretend to shoot the professor.  The professor falls to the floor and then quickly rises and reassures everyone he is ok.  He then asks the class to describe the shooter.  Everyone in the class had a different description.  Everyone.  Trials and lawsuits are not like on TV.  Everyone may had a different recollection about what happened.  The truth may be very elusive.  

As often happens in trials, there is substantial dispute over what happened when lawyers for Michael Richard seeking more time.  The call went to Ed Marty, general counsel for the CCA.  He has given different statements about happened.  In one account, he says he told the duty judge, Cheryl Johnson, that the lawyers called.  In other accounts, he did not tell Judge Johnson.   He appears to acknowledge that he has memory problems.  He has retired and moved to Alabama. 

Judge Keller is consistent that Marty told her they were calling for more time and she simply responded that some entity (the clerk or the court) closes at 5:00 pm.  Judge Keller’s lawyer emphasizes that the lawyers could have submitted a filing to any other judge.  But, the lawyers appear to not have been aware of that.  The general counsel was apparently careful not to tell the lawyers they could file with another judge – presumably to avoid charges of favoring one side over the other.  But, like Richard’s lawyers, I believe I would expect a court to tell me how to file a late, critical pleading.  I would not expect to have to ask such a routine sort of question.  

In any event, a man’s life hung in the balance.  Judge Keller’s defense appears to essentially be that she simply provided information, an administrative act, not judicial.  That claim does contradict her defense in the civil suit that her act was judicial (thus relying on judicial immunity).  As is true in many trials, relying on hair-splitting is not a very effective defense.  I suspect Judge Keller will get some sort of reprimand.  

 Well, Judge Keller admits she knew something.  She admitted that when the call came, she knew at a minimum that the lawyers for Michael Richard called about the execution and they were not ready to file something.  See the San Antonio Express news story.  That is pretty damaging.  Its common knowledge that shortly before a scheduled execution, lawyers will file something to try to stop it.  But, this was even more true since at the time the US Supreme Court was considering accepting a challenge to the lethal injection system.  

The big question will be, for pete’s sake, she did not refer such a call to the duty judge, Cheryl Johnson.  Reading between the lines, it looks to me like she believed she was simply stating a fact.  But, if she knew at a minimum they were not ready to file something and it was very likely they wanted to file something, she had to know there was an issue of some sort – an issue that must go to the duty judge.  

 I do not know what happened, but, yes, if a judge fails to follow procedure, then that is a problem.  The trial of Sharon Keller started yesterday.  She is presiding judge of the Court of Criminal Appeals.  That means, she is the chief judge for the highest court in Texas regarding criminal cases.  If she did know that attorneys for Michael Richard were calling for more time and she did not give them that time, then, yes, that would be a pretty clear violation of something.  

The trial is starting out not too well for Judge Keller.  Another judge on the Court of Criminal Appeals  disagrees with Judge Keller on a key fact: did anyone tell Judge Cheryl Johnson, the duty judge that day, about the call asking for more time?  Judge Johnson says no, no one told her.  If so, that would be a pretty clear breach of procedure. 

The State Commission on Judicial Conduct used to be a fairly weak organization.  But, some ten years ago, they started to truly enforce judicial ethics.  This is by far the biggest case they have taken on.  But, if the allegations prove to be true, it is one of the more egregious cases they have dealt with to my knowledge.