BY JORDAN SMITH
According to federal district Judge Lee Yeakel's ruling last week, Court of Criminal Appeals presiding Judge Sharon Keller enjoys "judicial immunity," which insulates her from being sued for violating the civil rights of an executed inmate. "Judicial immunity is immunity from suit, not just damages, and therefore applies despite allegations of malice or corruption," Yeakel wrote. And, indeed, there were plenty of allegations of malice and corruption to be found in the lawsuit filed last fall by the family of executed inmate Michael Richard.On Sept. 25, 2007, Keller closed the courthouse door, blocking Richard's 11th-hour appeal challenging the constitutionality of the trichemical lethal injection method. That same day, the U.S. Supreme Court had said it would review a similar case from Kentucky (Baze v. Rees), and Richard's attorneys were seeking a stay for their client pending the outcome of the Baze case. In order to get the Supremes to consider Richard's appeal, however, the case first had to be considered by the CCA. The appeal was delayed because his attorneys had computer problems. They called the clerk to say the appeal would be late, but Keller refused to accept it: "We close at 5," she said.
This meant, in effect, that Richard was blocked from obtaining a stay from the Supremes and was instead executed – the only inmate to be executed in the U.S. after the high court said it would consider the Baze case. The Supremes ultimately ruled that the trichem injection method, as used by Kentucky, is constitutional, and thus the death-house machinery began its endless churning again this summer. Still, the court did not preclude additional challenges to the method, especially by a state – read: Texas – that has more experience with the mechanics of death and thus a fuller record for the court to vet. At the time the court considered Baze, the state had used the method just once.
Keller's decision was, apparently, made in a vacuum – although there were three other judges at the court that evening, she failed to check with any of them about her decision to shut the doors on Richard, including Judge Cheryl Johnson, who was actually assigned to handle the Richard case. Johnson told the Austin American-Statesman that she was "dismayed" by Keller's decision. In response to Keller's seemingly unilateral decision to deny an inmate access to the courts, Richard's widow (and later, his daughter) sued Keller, arguing that the judge had denied Richard's due process rights. "No law or rule gave ... Keller the authority to close the court to prevent the Appeal," the suit argued.
Ultimately, Yeakel's ruling did not address that argument. Instead, he ruled in Keller's favor, dismissing the suit, opining that Richard's widow, Marsha, did not provide adequate facts to support her allegations and that, ultimately, Keller's position as a judge offered her near total immunity from any such suit. "A judge's duties make her particularly vulnerable to lawsuits from vexed litigants, as she must exercise discretion to make potentially controversial decisions," Yeakel wrote. "Even grave procedural errors do not overcome judicial immunity."
And so in the aftermath of her much derided decision, Keller has so far emerged legally unscathed. Indeed, the status of a complaint filed with the Texas Commission on Judicial Conduct by Texas Civil Rights Project Director Jim Harrington and signed on to by more than a dozen other influential attorneys is also in limbo – Harrington says that because of the rules of the commission, which keep the status of such complaints away from the public, he doesn't know if his complaint is still pending or has been dismissed.
Since Texas reinstated the death penalty in 1976, only six people have been executed for a murder in which they did not directly participate, according to the Death Penalty Information Center. If Texas proceeds with the scheduled Aug. 21 execution of Jeff Wood, that number will climb to seven. Lawyers for the death row inmate, trying to spare their client that fate, are asking the Board of Pardons and Paroles to recommend commuting Wood's sentence to life in prison.
Wood was sentenced to die for the 1996 murder of his friend Kris Keeran, during a botched robbery of a Kerrville Texaco station. Wood did not fire the gun that killed Keeran and wasn't inside the gas station when another friend, Danny Reneau, fired the fatal shot into Keeran's head. (Reneau was executed in 2002.) Nonetheless, according to the state, Wood is responsible for Keeran's death and should be executed. Wood was convicted under the state's law of parties, a conspirator liability statute that posits that if two or more people plan to commit one crime but another crime occurs, each person is equally responsible for that crime, if it was foreseeable. The state argues that Wood hatched with Reneau the plan to rob the Texaco, where their friend Keeran worked, on Jan. 2, when a large amount of cash would still be on hand because of holiday bank closures. That Wood was neither in the store when the killing began nor fired the fatal shot did not mean he was not equally liable for Keeran's murder, the prosecution argued.
But Wood's lawyers, Scott Sullivan and Jared Tyler (with the Texas Defender Service), argue that Wood did not plan to rob the store and, in fact, had no idea Reneau planned to do so – nor, they say, did Wood know Reneau was carrying a gun. Indeed, it isn't clear that Wood had any idea what Reneau would do, although it does appear Wood was privy to a plan hatched by Reneau and Texaco store manager Bill Bunker to lift the post-holiday cash. Wood's sister, Terri Been, says that Keeran initially was in on the plan, but ultimately, she says, Wood and Keeran pulled out, followed by Bunker. As far as Wood knew, she says, the previous talk of a robbery was moot. "Mr. Wood undeniably shares responsibility for what happened to Mr. Keeran, and should be held accountable for his reckless acts, but no man ever deserves to die for another man's acts," Wood's attorneys wrote in his petition to the board, filed last week.
At Reneau's trial, the state argued that he was responsible for Keeran's murder and portrayed Wood as little more than a sap, steamrolled by the villainous Reneau. But at Wood's trial, prosecutors reversed their strategy, arguing that Wood deserved to die because he'd gotten Reneau to "do his dirty work." But the idea of Wood as "mastermind" baffles attorney Sullivan, who has represented Wood since 1998. "I've watched Jeff for ... nine years," he says. "This guy, his mental capacities are not sufficient to make him a mastermind." Wood was diagnosed with learning disabilities as a child, and school officials consistently categorized him as emotionally stunted. He always sought approval for his actions and, adds his family, was easily influenced by others. He was initially found incompetent to stand trial because he was incapable of helping his defenders. At the punishment phase of his trial, Wood tried to fire his attorneys, a request denied by the judge. Nonetheless, his trial attorneys followed Wood's orders: Not only did they withhold from the jury evidence of his troubled youth, but they also failed to cross-examine any state witnesses, including the wildly speculative testimony of Dr. James Grigson – derisively known by many, including colleagues in the psychiatric community, as "Dr. Death" for predictably offering testimony in capital cases that a defendant would pose a danger to society, one of the questions a jury must decide in order to impose a death sentence.
In Wood's case, Grigson testified the defendant would pose a continuing threat to society if sentenced to anything other than death. That was clear to him, he said, because Wood was a manipulative person who failed to wear a disguise during the Texaco robbery. "You have an individual that is a user or manipulator of other people, and I'm thinking particularly in terms of where you're planning the robbery for two weeks," he testified, responding to a "hypothetical" robbery-murder presented by prosecutors that mirrored closely most of the facts of the Keeran killing. "Surely, you would have thought in terms of using a mask or a disguise where you wouldn't have to kill somebody, so this was a deliberate and intentional act in terms of the clerk that was going to be killed." (Wood's attorneys assert in the clemency petition that Grigson should not have been allowed to testify, in part because of his 1995 ouster from the American Psychiatric Association and Texas Society of Psychiatric Physicians for "flagrant ethical violations" – a fact the jury did not know because neither of Wood's attorneys conducted any cross-examination.)
Sullivan and Tyler argue now that executing Wood for a murder he did not commit would undermine Texas' entire death penalty scheme. The U.S. Supreme Court, they note, has said, "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." If Wood is executed, they write, "that risk will have come to fruition, and we all will have taken a descent into brutality unworthy of the State of Texas."
The Board of Pardons and Paroles can vote either to recommend or deny clemency for Wood. If they vote to commute Wood's sentence to life in prison, Gov. Rick Perry has the power to accept or deny the recommendation.
