Lawyers file complaint over court closure in death case

Houston Chronicle has published the first article about today's press conference at the Court of Criminal:

AUSTIN — Twenty lawyers from across Texas today filed a formal judicial conduct complaint against Texas Court of Criminal Appeals Presiding Judge Sharon Keller, accusing her of violating the constitutional due process of a condemned man.

The complaint to the State Commission on Judicial Conduct says Keller improperly cut off appeals that led to the execution of Michael Richard on Sept. 25 despite the fact the U.S. Supreme Court earlier in the day had accepted a case on the propriety of lethal injection, which had direct implications for Richard's execution.

"Judge Keller's actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution," the complaint states. "Her actions also brought the integrity of the Texas judiciary and of her court into disrepute and was a source of scandal to the citizens of the state."

Those lawyers signing the complaint included former State Bar President Broadus Spivey, Houston criminal defense lawyer Dick DeGuerin, University of Houston law professor Mike Olivas, former appellate Judge Michol O'Connor, state Rep. Harold Dutton, D-Houston, and former Nueces County Attorney Mike Westergren.

The lawyers are being represented in the complaint by Jim Harrington, director of the Texas Civil Rights Project. Harrington said Keller's actions were "morally callous, shocking and unconscionable for an appellate judge."

The commission's proceedings are secret. At the end, the commission can dismiss a complaint without making it public; publicly reprimand a judge or recommend to the Texas Supreme Court that the judge be removed from office.

At issue is the sequence of events leading up to the execution of Richard, 49, for the 1986 rape and fatal shooting of Marguerite Dixon, a Hockley mother of seven.

Lawyers for Richard had called the court's clerk, asking that the office stay open an extra 20 minutes so a stay of execution request could be filed. Even if it was denied by the state court, that request was procedurally necessary to get a stay from the Supreme Court.

Keller last week voiced no second thoughts about her actions.

"You're asking me whether something different would have happened if we had stayed open," Keller said, "and I think the question ought to be why didn't they file something on time? They had all day."

Although other judges at the Texas appeals court were waiting for Richard's appeal, Keller ordered the clerk to close promptly at 5 p.m. Because of that, Richard's appeal was not filed and he was executed later in the evening.

Judge Cheryl Johnson was the appeals court jurist in charge of Richard's case. She said she never heard anything about the clerk's office closing off the appeal until the following day.

"I wasn't consulted," Johnson said. "I have been here almost nine years. My understanding was that on a death case we were here up until the time of the execution and we would take filings that came in up until 6 o'clock and the execution is underway."

Johnson said it is not a question of whether Richard is guilty but did he have the right to appeal.

r.g.ratcliffe@chron.com