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Thursday, February 18, 2010

Press and public mostly still misunderstand issues in Keller judicial complaint

Regarding the Texas State Commission on Judicial Conduct's handling of the complaint made against Presiding Judge Sharon Keller in connection with the Michael Richard execution in 2007, Peggy Fikac of the Houston Chronicle's Austin bureau reported today on both sides' filing of formal objections to the findings of the special master who heard the evidence on the complaint, State District Judge David A. Berchelmann. Judge Berchelmann's report excoriated Richard's defense team but found that no formal sanctions should be imposed upon Judge Keller — the bottom-line result that the complaining team is still protesting to the full Commission. However, the findings also contained some language critical of Judge Keller, to which her legal team is objecting in turn.

As with so much of the previous reporting on this matter, Ms. Fikac's article is not exactly wrong, but neither is it quite right. Both the state and national press have done a completely inadequate job of grasping and explaining what the relevant issues actually were. Instead, they've been repeating a skewed spin on the case that's most damning to Judge Keller, but that's also quite misleading because it's based on the perpetuation of a mistake made by the defense team.

Short titles are hard for me. Thus, I first blogged about this case back on October 4, 2007, in a post entitled 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? I followed that up with: More facts received, and more yet to come, about Michael Richard's blocked application for a stay of execution. In those posts, I speculated that this entire dispute arose from a mistaken assumption on the part of someone on the Richard defense team about what they were actually trying to do. The trial evidence ended up verifying my hunches pretty closely, but the case is still widely misunderstood on a fundamental basis. And ironically, the misunderstanding results in both Judge Keller and the Richard defense team coming off worse than either deserves!

Here's what I posted today as a comment to Ms. Fikac's article in the Chronicle:

I have not yet read a single comment, pro or con, from anyone who understands what this case was about.

And of course, you can't tell that from the article, either, since the press can't seem to grasp what happened.

Michael Richard's defense team — acting through a paralegal -- asked the wrong question altogether: Will you keep the courthouse open late?

There was never any reason to keep the courthouse open late, or even just the clerk's office open late. What the defense team needed to be doing — what its actual lawyers knew, but hadn't instructed their paralegal about — was arranging for the duty judge to accept an after-hours filing and hearing of an emergency matter. The applicable rule of Texas law permits these judges to do that — and it doesn't matter whether it's in a public building that's "open" or on the 50 yard line of Memorial Stadium.

The press — going along with Richard's defense team — wants to make out as though Judge Keller was asked, "Will you agree to rule on this after closing time?" Well, that wasn't at all what she was asked. To the question she was asked, she gave the correct answer: "We close at 5."

You may think — and the special master apparently thought — that she should have gone further and figured out WHY the paralegal was asking to "keep the courthouse open." Maybe you think she should have then volunteered some advice and suggested the RIGHT question. But consider this: Do you want Texas judges to get into the business of giving corrective legal advice every time they see a lawyer doing something stupid? In fact, the canons of judicial ethics prohibit that, and for very good reasons.

There's no suggestion that Michael Richard died any less painlessly than every other inmate executed in Texas for the last several years. The U.S. Supreme Court case that was the basis for Richard's stay motion ended up AFFIRMING the constitutionality of lethal injection protocols. The judicial system had spoken: Michael Richard was to die for his capital crime, and to die without further delay; he was deprived of an unjustified windfall of a few more months at most. I count that as not a big deal in the greater scheme of things.

Finally: Go read the special master's actual report: http://www.scjc.state.tx.us/pdf/skeller/MastersFindings.pdf ... His synthesis of the facts is quite good.

Here's a link to all of the filings connected to the complaint.

And finally, here's a link to DRJ's guest post at Patterico's when Judge Berchelmann's findings first came out last month. I left quite a few comments to that post, and they track my initial and considered reactions after reading the findings.

Posted by Beldar at 01:13 PM in Law (2010) | Permalink


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(1) LYNNDH made the following comment | Feb 18, 2010 3:52:49 PM | Permalink

Having been a Paralegal, working in a law firm(not all do), I think the attornys asked the Paralegal to ask the Judge the exact question that was asked. Don't go blaming the Paralegal for asking the wrong question.

(2) Beldar made the following comment | Feb 18, 2010 6:58:16 PM | Permalink

Lynndh (#1), I suspect you're new to my blog. If you're still following the comments thread, then welcome!

Many of my most valued readers are not lawyers like me, or even paralegals (past or present) like you.

However, you'll find, if you visit here very often, that the other commenters here generally take the trouble to follow links, or at least to read carefully what I've written, before they go on record with their own opinions (which are welcome, even when they differ from or directly oppose mine).

You obviously haven't read Judge Berchelmann's findings, or you'd know who said what to whom, and you wouldn't accuse me of mistaken speculation. I'm no longer speculating about the facts, I'm relying on the testimony (most of it undisputed, including this particular testimony) that was presented under oath before him.

And while I'm not open to mistaken factual suppositions (which, respectfully, yours is), I don't "blame the paralegal. If you'd also read the comments I left on the Patterico's post, you'd see that I "blamed," ultimately, David Dow, who was in charge of the very junior lawyer who was directing the paralegal that was directing another paralegal who actually had the conversations with the court personnel. But it is "blame" only in the sense of precisely placing causal responsibility, and it lands on David only because he had ultimately responsibility for everything the defense team did by virtue of his seniority and position. As I've written before, it was simply amazing that they were able to react to the SCOTUS' grant of certiorari in Baze within less than a single business day anyway; to expect them to have gotten effective court consideration at both the state and federal level in the few hours before Richard was scheduled to be executed, based on what was (from their perspective) the random event of the timing of that ruling in Baze, sets an awfully high standard for defense counsel. What they did manage to do, even if less than perfect, would have been a wild and impossible dream when I started practicing in 1980.

It's unfortunate that the paralegal who spoke to the Texas Court of Criminal Appeals personnel didn't know Texas Rule of Appellate Procedure 9.2(a)(2), which specifically permits delivery of court documents directly to "a justice or judge of that court who is willing to accept delivery." It's unfortunate that the paralegal therefore made the mistaken assumption that she needed to keep the Clerk's office or the whole courthouse "open," when actually the paralegal's proper job, if properly instructed or experienced, was to arrange for an after-hours filing with the duty judge. It's unfortunate that -- in a shortcut that must have seemed justified, after the miscommunication -- the defense team lawyers chose not to telephone any of the judges' offices, but to instead to go on with their attempt to get a stay from the SCOTUS. (The SCOTUS' ruling was foreordained, given that they'd skipped the Texas Court of Criminal Appeals.)

But I don't think it was anything more than unfortunate. If negligent at all of David not to foresee or fix this problem, there certainly were extenuating circumstances. Those in the public who've accused his team of gross incompetence or abusing the system in their original effort to get the stay are just out of line and wrong. Moreover, the loss of an undeserved windfall on the part of Mr. Richard certainly wasn't tragic in anything remotely like the way that executing an innocent man would have been, or the way his capital crime was. Nothing remotely like the execution of an innocent man happened in this case, nor is there any reason from these facts to think that something like that is particularly likely to happen in any other case.

(3) Epic Knight Rider Maneuver made the following comment | Feb 18, 2010 9:36:05 PM | Permalink

Thanks for once again boiling this down so well, Beldar.

It's easy to think this story is just too darn complicated to get across, and the journalists did the best they could, but you really boil down the issue very well in a way anyone could understand. This was a circus. I've read a lot of Keller's work and really don't have a high opinion of her, and a lot of people don't appear to like her (in my circle), but that's not relevant (though it clearly is the basis for a lot of the outrage). She did her job. It wasn't her job to dictate the defense or the appeal (or the prosecution or response to the appeal).

Of course we can't blame the paralegal, but we know who to blame it's not Keller.

(4) jigmeister made the following comment | Feb 19, 2010 5:40:46 PM | Permalink

I have followed the arguments and "stories" since it first broke. I'm not a fan of Keller and frankly don't know her. Having read Judge Berchelmann's findings, you really have to wonder about the media bias generally. Throughout this media event, they reported that there were computer problems that caused their late filing attempt. They also neglected to relay that no lawyer ever talked to Keller or anyone else or even followed up once a paralegal called the clerk. You would think at least one media outlet or reporter would endevor to get to the truth before reporting and attributing fault to Keller. Whatever your opinion of Keller or the death penalty, no one needs to get slammed like she did.

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