Master rules in favor of Judge Keller in death row case

San Antonio Express-News:

A special master concluded Wednesday that Texas Court of Criminal Appeals Judge Sharon Keller didn't deserve to be removed from office or even given "further reprimand beyond the public humiliation she has surely suffered" for her conduct in a death-row inmate’s failed last minute appeal before his execution.

San Antonio-based District Judge David Berchelmann Jr., serving as special master in the case of alleged judicial misconduct, wrote that the Texas Defender Service in representing Michael Richard "bears the bulk of fault for what occurred on September 25, 2007."

That was the date of Richard’s execution, after the Texas Defender Service was unable to file an appeal late based on a U.S. Supreme Court’s decision to consider the use of lethal injection in a Kentucky case.

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Berchelmann, in blaming the Texas Defender Service for the bulk of the problem, wrote that it didn’t begin contemplating a lethal injection claim until two hours after the U.S. Supreme Court agreed to hear the Kentucky case and that it assigned a junior attorney to draft the necessary papers.

Among other points, he wrote that it failed to pursue all possible ways to file the claim with the court; and that it relied on paralegals instead of its experienced lawyers to communicate with court staff.

The special master also didn’t endorse Keller’s behavior, saying among other things she "should have been more open and helpful" about how the Texas Defender Service could file.

"Further, her judgment in not keeping the clerk’s office open past 5:00 to allow the TDS to file was highly questionable," Berchelmann wrote. "In sum, there is valid reason why many in the legal community are not proud of Judge Keller’s actions."

Berchelmann added, however, that Keller "did not violate any written or unwritten rules or laws."

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I think counsel was obligated to do more than just call a judges office shortly before closing time. I get the feeling these last minute applications are a tactic to limit the time that judges have to review the appeals. I am suspicious of people who can't meet deadlines like this.