More facts received, and more yet to come, about Michael Richard's blocked application for a stay of execution

After writing my post yesterday, I sent the following email to Austin American-Statesman reporter Chuck Lindell, whose news story Wednesday had been picked up by the AP and others:

Mr. Lindell:

Re your report in Wednesday’s Statesman about the handling of the stay of execution application in the Michael Richard case, you might be interested in some reactions from both left and right among legal bloggers.  You’ll find links and my own take at my blog.

I look forward to your follow-up reporting, but would also appreciate any supplementation you might make or comments you might have via email, either for attribution or not as you prefer.

- Bill Dyer a/k/a Beldar

I received this gracious and self-explanatory reply this morning:

I can answer one of your questions — about the presence of Ed Marty in the story.

The request to remain open past 5 was made to the clerk's office. The clerk asked Marty for an opinion. Marty consulted with Judge Keller, and Marty delivered the news back to the clerk, who called [Texas Defender Service]. In the constraints of space and time (not getting sci-fi on you, but space in the paper and time on deadline) that progression got crunched.

If communication broke down somewhere along that path, it's as yet unexplained.

Also: The term "keep the court open" was used by TDS, so I used it. They also said they asked the court if they would accept a filing after 5 p.m.

I do not know if the term "emergency filing" was used, and (frankly) I did not realize there could be a difference between asking to stay open and asking to accept a late/emergency filing, so I didn't push TDS for a very specific accounting of what they requested.

I can try to answer any specific questions you may have. Feel free to post what you'd like. It's all information, and I'm in the information biz, as we say. One of the pitfalls of writing for a general audience is the omission of minor details that are major details to people who practice law.

Oh, and no more of this "mr. lindell" — I'm Chuck.

Thank you, Chuck! I hereby nominate you for the "2007 Most Cooperative MSM Reporter Conspicuously Lacking Any Chip On His Shoulder When It Comes to Bloggers Award"!

I've also received a reply email tonight from University of Houston Law Professor David R. Dow — who was among the lawyers representing Richard and who's among the most active and widely-quoted scholar-practitioners involved in Texas death penalty defenses and appeals — graciously consenting to my request for a telephone interview. He's traveling over the weekend, and I hope to catch up with him by phone at his convenience as early as Monday morning.

This interstitial information in Chuck Lindell's email response, like that in today's very interesting Houston Chronicle story, nevertheless still leaves me wondering whether Texas Court of Criminal Appeals Presiding Judge Sharon Keller actually made a knowing and deliberate decision to prevent Richard's defense team from filing an emergency stay application outside regular court hours, or whether instead this was a communications breakdown — and if it was the latter, exactly how it happened.

I genuinely would like to know — and not because I've got any stake in defending Judge Keller in particular, nor because I want to divert blame onto anyone on the defense team.

Indeed, I'm yet to be convinced that "blame" is the right word with respect to anyone involved. It bears repeating that everyone in this situation, both at the Texas Court of Criminal Appeals and on the defense team, was necessarily acting under enormous time pressures — caught between an unpredicted SCOTUS cert grant from the Baze case from Kentucky and the Richard execution scheduled for that very same night. There are many ridiculous last-minute stay applications filed without any good excuse for why their arguments couldn't have been raised earlier — but this was emphatically not such a case. The Baze cert grant was indeed a big deal in terms of shifting the balance of factors that courts use to consider those applications in death cases, regardless of whether Baze eventually does or doesn't end up prompting a revamp of execution technology and practices.

That the Richard defense team was able to generate a same-day reaction at all is to their enormous credit; and I didn't previously know that the Texas Court of Criminal Appeals in fact routinely makes detailed preparations in anticipation of last-minute applications in connection with all executions (although I'm not terribly surprised to learn that). At the beginning of my career — not so many years ago — in a pre-fax machine, pre-internet, pre-24/7/365 news environment, assembling a stay application on this sort of time-table, and getting it considered on its merits by not only the Texas Court of Criminal Appeals but then the SCOTUS within a matter of hours after a cert-granted announcement, would have been thought a wild fantasy. Yet today we're seriously asking ourselves if it's a tragedy that all that couldn't be accomplished within those same few hours.

And in terms of the prejudice from the failure to get a consideration of the stay application on its merits, I suppose things certainly could also have been worse: If there were serious alternative grounds for the stay besides the cert grant in Baze, I'm unaware of that; in prior proceedings, Richard almost certainly got full and due consideration on the merits of any other defenses he might have had. The only real consequence was that Richard was executed using the same three-drug "lethal cocktail" that Texas and other states have used in hundreds of executions; and there's no reason to think that Richard's executioners missed his vein and pumped the mix into his muscle mass (as apparently happened in a recent Florida execution, with disturbing results).

But anyone who values due process — and especially the awesome solemnity and responsibility that ought to attend legal proceedings in all capital cases, whether one supports or opposes the death penalty — nevertheless has to be concerned over this situation. There may be important lessons to be learned for at least some, and perhaps many, of the court and defense team personnel involved in this and similar cases. Moreover, in a system in which the AEDPA requires exhaustive presentation of grounds first to state courts before federal courts will consider intervening, the quality of practical access to those state courts is important.

And there may be other systemic implications that merit consideration by the Texas legislature and Texas' highest courts in contexts not limited to death cases: Our federal courts, for example, now almost universally accept — and are coming close to mandating — internet/email filings, whereas the Texas state trial and appellate court systems almost universally forbid them. One can be, like me, a skeptic about the notion of a "living, breathing Constitution" without necessarily also being a Luddite. And when it comes to deciding what "process" is "due," instances like this one should probably prompt us to reconsider whether digital/cyberspace-processes are being short-changed or prohibited without particularly good reason.

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Previous posts on the Richard stay application matter, oldest to most recent:

1. Was Michael Richard executed because Presiding Judge Sharon Keller ordered the Texas Court of Criminal Appeals' doors closed at 5:00 p.m. before his emergency stay of execution application could be filed?