Is the Heartless Texas Judge (TM) real?

The chief judge of, apparently, the highest criminal appeals court in Texas orders the clerk’s office closed while awaiting a stay of execution filing relating to a pending supreme court case.

The case involves events on Sept. 25, 2007. At 9 a.m. the U.S. Supreme Court agreed to hear a case that would determine whether lethal injection is “cruel and unusual punishment.” The state of Texas was scheduled to use lethal injection to execute Michael Wayne Richard at 6 p.m.

* * *

We already knew that Keller and the other judges were aware of the Supreme Court decision. We didn’t know that the court’s general counsel, Edward Marty, had started drafting a proposed order in anticipation that Richard’s lawyers would file a request for a stay .

Nor did we know that Judge Tom Price had drafted a dissenting opinion and circulated it to the other judges, including Keller. Nor that all the judges were notified about 2:40 p.m. that the Harris County District Attorney’s Office had reported that Richard’s lawyers were planning to file a request.
Others were prepared

The Supreme Court decision was so much on the court’s mind that Judge Cathy Cochran forwarded to all her colleagues a copy of the Kentucky Supreme Court decision that was being challenged.

Under court procedures, Judge Cheryl Johnson was the designated judge who was supposed to receive all messages regarding Richard’s case. She and Marty planned to stay at the office to receive any messages until Richard was executed.

Chief Judge Keller went home early and was called shortly before 5 p.m. by Marty. Richard’s lawyers were having computer problems and wanted the clerk’s office to stay open until 5:20 or so to receive their filing. Rather than forward the message to Johnson as policy required, Keller instructed Marty to tell the lawyers no. The lawyers made attempts up until 6 p.m. to deliver the filing but were told nobody was there. Richard was executed at about 8:20 p.m.

Two days later, the Supreme Court stopped all executions by injection based on the same arguments Richard’s lawyers made. Richard was the only convict executed until six months later, when the Supreme Court OK’d lethal injection as constitutional.

Here’s the stunner: The morning after Richard’s execution, the nine judges had their weekly conference. At the end of it some of the judges expressed surprise that Richard’s lawyers hadn’t submitted a filing.

Cochran even raised the question — hypothetically, she thought — of what would happen if the lawyers showed up after the clerk’s office closed. She said the court should accept the filing anyway. According to witnesses, Keller said, “The clerk’s office closes at 5 p.m. It’s not a policy, it’s a fact.”

Keller lacked the decency or the courage to tell her colleagues about the call she had received.

I can predict Keller’s defense in the removal hearings now: “the defense counsel should have planned for potential computer trouble.”

(Hmm, I do seem to have lots of law posts lately. Balance will return soon.)


One Response to “Is the Heartless Texas Judge (TM) real?”

  1. Daniel Goldberg Says:

    I clerked for the SCT of Texas, which is in the same building as the CCA (the highest criminal court).

    Three words: Arendt, banality, evil.

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