Dallas Morning News has this editorial calling titled, "Opening Halls of Justice."
More than 300 lawyers have filed a petition with the Texas Court of Criminal Appeals, asking it to join the 21st century by allowing the electronic filings of court documents in capital murder cases. It shouldn’t be, but it is - literally - a matter of life and death that the court grant the petition.
The petition’s signers include two former justices of the Texas Supreme Court, Deborah Hankinson of Dallas and Rose Spector of San Antonio, as well as such prominent local lawyers as William Allison, Dan Bishop, Betty Blackwell, Joe Crews, J. Chrys Dougherty, Dicky Grigg, Jim Harrington, Charles Herring, Richard PeÃ±a, David Sheppard, Broadus Spivey and Bill Whitehurst.
The recent execution of a Texas inmate spurred this call for reform of the nine-member court, which is the last resort in the state’s legal system for criminal cases.
On Sept. 25, defense lawyers for a death row inmate scheduled to die that evening, Michael Richard, asked the court to stay open another 20 to 30 minutes after its usual 5 p.m. closing to accept a last-minute appeal.
This was not a case of desperate lawyers inventing a last-minute argument out of thin air in hopes of stopping an execution. Instead, that morning, the U.S. Supreme Court had accepted a case that challenges the constitutionality of executing inmates by using lethal injection, the procedure used in Texas.
A professor and expert in capital-murder law at the University of Houston, David Dow, drafted a 107-page appeal for Richard and tried to e-mail it to the Texas Defender Service in Austin, which would print the required original document and 11 copies and hand deliver them to the court. But Dow ran into a transmission problem and the document didn’t reach the Defender Service until about 4:50 p.m., Dow said.
The court’s presiding judge, Sharon Keller, was asked to keep the courthouse doors open a few minutes longer so that the appeal could be printed and delivered. But she would not, nor did she notify at least three other judges that day who continued to work after 5 p.m. and could have acted on Richards’ appeal.
The documents were ready at 5:20 p.m., but the courthouse was closed. Richard was executed that night - by lethal injection.
Had direct electronic filing been possible, the court could have received the appeal by 5 p.m. and it could have been accepted or rejected on its merits, rather than get cut off by Keller’s lethal unwillingness to bend a business hour rule.
The U.S. Supreme Court and U.S. district courts in Texas allow electronic filing. The Texas Supreme Court has electronic filing under consideration and cuts appellants slack for filing urgent documents, such as parental notification appeals when a minor seeks an abortion, a spokesman said.
The Court of Criminal Appeals ought to grant the petition by the lawyers to allow electronic filing, at least for appeals filed on behalf of someone sentenced to die. Still, this would be a question of only technical interest to lawyers, not a matter of life and death, if this court’s presiding judge had exercised some human decency instead of locking the courthouse door.
It may be impossible to remove the stain that Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, has placed on the state's judiciary. But two lawyer-driven actions might keep it from spreading.
More than 300 members of the Texas bar joined a petition last week asking Judge Keller's court to adopt modern procedures and allow e-mailed filings in death penalty cases. Of course it should.
Electronic filing in life-or-death cases might have avoided Judge Keller's disgraceful decision Sept. 25 in which she refused a condemned man's plea for a 20-minute extension beyond the court's usual 5 p.m. closing. The man, convicted killer Michael Richard, was executed minutes later, despite indications that he had a strong basis for appeal.
His attorneys needed the extra time because computer glitches prevented their making paper copies, as required. Such considerations should never stand in the way of appeal when a life is in the balance. Most states now have e-mail filing provisions, and the Supreme Court of Texas allows them in civil matters
If the Court of Criminal Appeals hesitates, state lawmakers could force the issue in their 2009 session by inserting an imperative in the Code of Criminal Procedures. It would be a disappointment if things came to that.
Separately, lawyers across the state are seeking to have Judge Keller disciplined as a result of her decision to bar the courthouse door. One of the complaints filed with the State Commission on Judicial Conduct accurately states that she is a "source of scandal to the citizens of the state." It might add that she makes the nation's leading death penalty state look overeager to carry out its grim business.
Her decision is particularly hard to stomach because other judges who were working late Sept. 25 said they would have reviewed the post-deadline appeal.
Judge Keller's judgment is morally offensive. Texans deserve to know whether it also offended legal or judicial standards that seek to keep the court system open and fair.