Why didn’t Keller send the request for more time to Judge Johnson?
After all, Johnson was the duty judge assigned to handle Richard’s case. It was her responsibility to review all late filings and poll the court’s nine judges about whether to grant or deny relief.
Keller, however, didn’t know which judge was assigned to Richard’s case, said her lawyer, Chip Babcock (photo). Keller believed she was being asked a matter of policy — Does the clerk’s office close at 5 p.m.? — that was unrelated to the specific case, Babcock said.
“She just thought she was being asked an administrative question. She certainly didn’t think she was having a discussion about whether or not (Richard’s lawyers) could file or not file,” Babcock said.
But Michol O’Connor — a former Texas appeals court judge who recently testified in favor of a House impeachment investigation of Keller — said Keller had a responsibility to refer Marty’s call to the duty judge.
“She should’ve said, ‘Why are you calling me? I’m not the assigned duty judge for this case,’” said O’Connor, author of several textbooks on practicing appellate law in Texas.
And what about Marty? He assigned the duty judges, so why did he call Keller instead of Johnson? And why did he fail to tell Johnson about the request to file an after-hours brief, even though he and Johnson spoke later that night? (Johnson was one of three judges working late in anticipation of just such a filing.) Marty, however, has refused to answer reporter questions about the Richard case, so we may have to wait until Keller’s trial in August to hear from him.
Why didn’t Richard’s lawyers call Johnson directly to file their brief?
Because they didn’t know Johnson was their judge. The name of the duty judge is always kept confidential. All Texas appeals courts follow the same procedure to discourage improper communication between judges and lawyers or the public.
In fact, several lawyers who have spent decades working on death penalty appeals say they didn’t even know there was a duty judge assigned to each case.
Why didn’t Richard’s lawyers start calling every judge on the court and ask them to accept the late briefs? Appellate rules allow for such a practice.