'Killer Keller' Has Got To Go

Texas Court of Criminal Appeals Judge Sharon Keller should resign or be pressured out of her job for her shameful role in the death of a capital defendant named Michael Richard. He was executed by lethal injection in Huntsville, Texas on the same day that the United States Supreme Court announced it would review two lethal injection cases out of Kentucky to determine whether the procedure violates the "cruel and unusual" punishment clause of the Eighth Amendment.

Keller literally closed the courthouse doors to Richard's attorneys, who had asked for an extra half-hour to file a last-minute appeal on Richard's behalf. They told her that computer problems and the late-breaking Supreme Court move made those few minutes necessary. She didn't care. Failing to consult the three other judges who were working late that day, and who now say they would have accepted the filing, Keller ordered her staff to close the courthouse at precisely 5 p.m. Without a the Texas court ruling on an appeal from Richard's attorneys, the Supreme Court in Washington had no basis to issue its own stay of execution. So Richard was executed.

Ultimately, he might have been executed anyway. The Supreme Court is going to tweak injection rules not do away with the death penalty outright. But Richard certainly didn't get a fair deal.

Capital punishment cases are among the most sensitive issues on the Supreme Court docket. And it's widely accepted that once the Supreme Court decides to hear a capital case, other executions involving similar factual and legal issues should be temporarily halted. Richard's case met that test. Richard's judge did not. By demonstrating such poor judgment, Keller has forfeited her right to determine the life, liberty and property interests of others. She's just plain no good.

Even George W. Bush, who established an atrocious capital punishment legacy when he was governor of Texas, found that Keller had gone too far in the 1998 case of Roy Criner. Criner was sentenced to 99 years in prison for the rape and murder of a 16-year-old girl. But after DNA testing revealed that the semen found on the victim was not Criner's, Keller refused to grant a retrial. In her opinion, she wrote that the absence of Criner's semen might suggest "a failure to ejaculate ... or it may establish a condom was used." Then-Governor Bush pardoned Criner in 2000.

There is evidence that the Texas legal community is beginning to muster the courage to do something about Keller and her frontier brand of justice. Twenty Texas lawyers submitted an ethics complaint to the State Commission on Judicial Conduct. And hundreds of lawyers, including two former state Supreme Court justices and several past presidents of the Texas Bar Association, have signed a petition seeking a transition to electronic filing. That would be momentous in a state with such a long history of disregard for the rights of capital defendants.

I applaud those folks in Texas who have the courage and integrity to join the crusade. Of course, nothing in Keller's record suggests that she will be any more receptive to timely e-filings than she was to Richard's futile appeal. She did, after all, actively cultivate the nickname "Killer Kelley" to gain office in a judicial election. In other words, she is a jurist who owes her position not to sound reasoning or compassion, but to the whims and caprices of a political majority.

But the revolt is, at least, a start.

By Andrew Cohen |  October 25, 2007; 1:03 PM ET
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Why is Cohen whining over the execution of a rapist/murderer. At least now Richards won't be hurting anyone else. Being humanely put to sleep like a dog at the vet was to kind a punishment.

Posted by: restall | October 26, 2007 10:02 AM

In my earlier days teaching at a law school, I regularly had the students study a case about discovery misconduct. A prominent silk stocking firm had lied in answers to interrogatories and wrongfully hid patently incriminating documents in a product liability case growing from the wrongful death of a 6 year old girl. The trial court was too timid to sanction the big politically powerful firm, but the state supreme court did, reluctantly. The firm paid a stipulated sanction of several hundred thousand dollars and the underlying case was settled for several million weeks after the 'smoking gun' documents were disclosed. The defense lawyers' behavior was reprehensible, indefensible and, I thought, immoral by almost any standard. The case was bit news in the legal and business communties in the law firm's home state. What effect did the outrageous conduct have on the careers of the offending lawyers and their practices? The lead lawyer remained head of his litigation department, the lead associate was made a partner. What effect did all the publicity have on their practices, I asked. Answer: probably increased their 'book of business' because that's the kind of lawyers big clients want: those who will 'do what it takes' to win, to avoid precedent-setting losses that will cost the client millions, and who will fall on their swords for the client (the law firm took the blame for giving bad advice.) Mr. Cohen, there's money to be made and public offices to be gained from acting like those lawyers and like Judge Keller. "Killer Keller" was elected precisely because of her attitude towards those accused or convicted of crime, especially capital crimes. Don't hold your breath waiting for her to resign or to pressured out of office. This is Texas we're talking about.

Posted by: P. Bosley Slogthrop | October 26, 2007 10:57 AM

"Why is Cohen whining over the execution of a rapist/murderer. At least now Richards won't be hurting anyone else. Being humanely put to sleep like a dog at the vet was to kind a punishment."

I know it's tough but try real hard to get this: As laborious as it can sometimes be not to be a knee-jerk reactionary who lusts for revenge and death as social policy, our Constitution and Bill of Rights requires more of us.

Every American has the right to due process and a full and fair hearing before the court. This judge's unilateral haste was an abrogation of her duty and denied the accused his due process.

You seem to be saying that his guilt precluded his right to be fairly found guilty all the way through his appeals process.

Here is what you are missing: the appeals process is part of protecting the accused and the whole process is intended to protect the accused. We are innocent until found guilty - all the way through the process, including appeals. This is to protect the individual from the power abuses of the state, as exemplified by this judge's actions.

Maybe this guy was guilty as sin and deserved to be put down, but now two bad consequences have resulted from this judge's action:

1. there is a cloud of uncertainty over the verdict. the accused cannot be said to have received a fair trial and now his death is not a just punishment and the judge is potentially guilty of the same thing the accused was on trial for - murder.

2. If he wasn't guilty and an appeal would have shown that, an innocent man has been put to death. Unfortunately, this has happens more than we want to admit and with demonstrable racial bias.

3. This is the most important reason you are missing the big picture: Once the courts establish a precedent of imposing sentence without full and fair process, innocent people are put to death.

That's why so many states have imposed a moratorium on carrying out death sentences, because we were allowing courts to do what this judge did: skip the process and kill the accused.

Maybe this guy was guilty as accused but what this has done may have the affect of both causing other innocent people to be put to death unnecessarily or allowing guilty people to escape their sentences because the process is tainted.

On another level, you need to get past the concept of vigilante vengeance as justice. The people who took out the World Trade Center thought they were imposing justice on the guilty too. It's a two-edged sword.

Our system isn't perfect, but it is designed to give the innocent citizen every chance to be protected from the excesses of the vengeful and the abuses of the powerful. It takes discipline to not give in to blood-lust revenge.

Posted by: roooth | October 26, 2007 11:25 AM

no rooth...you are getting it wrong...."full and fair" preaching from sanctimonious windbags like you get tiring after a while.

we live in a world in which..as we zoom in on 50 million abortions....prematurely terminated life is rather a matter-of-fact occurrence. and spare me the rhetoric...I am not a religious person. just a cold, hard observation that...like you are intimating...this has consequences for the sort of society we live in.

do we all want a thorough process? sure. will there ever be absolute certainty? rarely. not likely. has the judicial process been so thoroughly corrupted by political inraods that it is nearly impossible to place faith in any decision/outcome? you bet.

high minded generalizations sound attractive and can be used to great advantage to dissemble what the details. it's a double edged sword both ways.

yes..the Twin Towers terrorists are a perfect analogue to a judge sitting in Texas. moron.

what are the stats on innocent people being unfairly convicted and executed?

Posted by: lmao | October 26, 2007 11:59 AM

addendum...no rooth.....the blessed like you and cohen have no problem whatsoever about injecting political criteria into judicial processes.....so long as the politics play to your prejuidices/biases.

frauds. why can't you at least be honest about this?

Posted by: lmao | October 26, 2007 12:04 PM

Excellent post roooth. As an opponent of capitol punishment on religious grounds, I would add that "that vengeance is mine sayeth the lord", and he doesn't need a pack of red necks helping him out with his light work. There is no heart so dark it does not know light, and even the greatest sinners can repent, but not if you kill 'em before they come around to it.
The latest shenanigans out of the Texas judicial system simply reinforces the widely held belief that they have no real interest in guilt or innocence, they just like a good hanging, almost any brown or black person is a suitable victim as long as the white community gets that cathartic rush as the rope snaps. Ah, justice served, hand me a beer. Texas is widely held to be a collection of idiots, and we have elected their king as our president, much to our chagrin.

Posted by: Dijetlo | October 26, 2007 12:08 PM

What can you expect from a judge appointed by Bush, who executed more people when he was govenor of texas than any other state in the union. You play by the Bush rule or your gone like a few other justices who didn't buy he line.

Posted by: Ralph Dietlin | October 26, 2007 12:25 PM

It seems that some of you have missed the point of the appeal.

My understanding is that Richards's lawyers were not appealing the verdict, but rather the sentence -- more specifically, the manner in which the sentence was to be carried out.

I haven't read the decisions in the line of Richards's cases, but my guess is that issues like whether he had the effective assistance of counsel and whether improper evidence was admitted at trial have already been heard and decided against him. In other words, he had a fair trial.

Once found guilty by a jury, the presumption of innocence no longer attaches to a defendant, by definition. The presumption of GUILT can be overcome by the presentation of new evidence or the use of forensic science that was not available at the time of the trial.

But none of that was at issue in this case. It was only about whether Richards would be allowed to line up behind the cases on which the Supreme Court granted cert. And "Killer Kelly" had her thumb on the clock and made sure it expired before Richards had the chance to get his papers in. She swore an oath to do justice and she violated that oath in this case. If the Supreme Court rules that the method of lethal injection utilized in Texas violates the 8th Amendment prohibition of cruel and unusual punishment, then she knowingly and purposefully caused the State of Texas to violate the United States Consitution. It doesn't matter if you are pro- or anti-capital punishment. We have rules on how the death penalty is to be carried out, and they must be followed.

Posted by: Nellie | October 26, 2007 12:30 PM

Nellie writes
"My understanding is that Richards's lawyers were not appealing the verdict, but rather the sentence -- more specifically, the manner in which the sentence was to be carried out."

The question, in my mind, is whether we are unintentionally lowering ourselves to the level of killers like Richards when we choose to execute them, unconcerned with whether the process is painful and/or cruel or not. Given the reported inconsistency of the application of the death penalaty at all, I'm against the practice anyway. But given that it is the law, if we are to be a civilized society based on the rule of law - they all have to be followed, which means when someone is sentenced to death, that sentence must be carried out within the parameters of not being 'cruel and unusual' punishment. Judge Keller apparently disagrees.

Posted by: bsimon | October 26, 2007 12:46 PM

Why isn't Bush on death row?

Posted by: Singing Senator | October 26, 2007 07:46 PM

P. Bosley nailed it. Keller is where she is because the state of Texas has the government it wants and deserves.

Unfortunately, that government displays a callous indifference to constitutional rights and the most basic notions of justice, as in allowing a death row inmate with a potentially viable Eighth Amendment claim to bring that claim after 5 p.m. on the day of his execution. I don't see the ethics complaints going anywhere in this retrograde jurisdiction. The real power in this situation resides with the electorate, which, as P. Bosley correctly points out, does not see the problem. I wonder whether Killer Keller would be allowed to keep her job if she had ordered the courthouse to stay open until 5:15 p.m. so Richard could apply for his stay, and I'd venture that her chances dim even further if Richard had been granted the stay as a result of her allowing him access to the clerk's office after hours.

Who cares anyway, right? Richard was a bad guy and deserves to die. Just like the guy Texas killed on the arson charge that was based on junk science about "crazed glass," and the convenience store customer who was a dead ringer for the real killer whom the authorities knew about but didn't pursue because they already had their suspect. Yeah, who cares. If those men didn't do those crimes, they probably did something else. And that Criner guy? He probably killed the girl, used a condom, and brought someone else's semen (fresh semen is so readily available these days) and put it on the victim to throw the cops off the trail. Yeah, who cares.

Posted by: ExAUSA | October 26, 2007 09:07 PM

Well, if Killer Kelley ran on her killing credentials and was elected, she has been doing what she promised to do. So, if the people of Texas elected her --and this is a big IF, given the maneuverings of politicians in Texas and in other places across the nation, especially though not exclusively, by Republicans-- they have what they bargained for. That a person like that is unfit to be on any bench, even a sitting bench, is clear. But that we can expect Killer Kelley to be ousted or forced to resign is too much to expect from a Texan cowgirl!

Posted by: | October 27, 2007 06:25 AM

There's something I'm not getting; and I would really like an explaination: If you're a Christian fundementalist literalist, how do you get around the commandment, Thou shalt not kill. Are footnotes, exceptions and addenda listed somewhere else?

Posted by: Just wondering | October 27, 2007 08:28 AM

There is alot of chatter here about possible innocence and failure to consider his guilt.

1) Mr. Richards plead guilty to the crime. The crime was breaking and entering, stealing household possessions and a van. He also raped and shot in the head the owner of the house, killing her. According to the reports he left quite a trail including handing the murder weapon off to a friend and abandoning the yellow van at another's house after it would no longer run.

2) The facts show that he had a spotty record of theft but no previous violent actions. He was however out on parole two months from earlier auto theft.

3) He certainly did appeal his sentence over nearly twenty years and received a second trial because of poor jury instructions during the first. Below is a list of his judicial procedures for this murder.

This does not excuse Judge Keller's action or the inevitability of the appeal's success. Nor the rather Texas style questionable decision for a death sentence in this case. It does however put to lie the possibility that an innocent man died.


October 29, 1986 -- A Harris County Grand Jury indicted Richard for the capital murder of Marguerite Dixon.
September 4, 1987 -- A jury found Richard guilty of capital murder, and he was sentenced to death.
September 16, 1992 -- The Texas Court of Criminal Appeals reversed Richard's conviction because of a flaw in the jury instructions.
May 15, 1995 -- Richard's second trial began.
June 15, 1995 -- A second jury found Richard guilty of capital murder, he was sentenced to death.
June 18, 1997 -- The Texas Court of Criminal Appeals affirmed Richard's conviction and sentence on direct appeal.
April 3, 1998 -- Richard filed his first application for writ of habeas corpus with the state trial court.
June 26, 1998 -- The U.S. Supreme Court denied Richard's petition for writ of certiorari.
February 7, 2001 -- The Texas Court of Criminal Appeals denied Richard's state application for writ of habeas corpus.
February 7, 2002 -- Richard filed a federal petition for writ of habeas corpus in a Houston federal district court.
December 31, 2002 -- The Federal District Court denied Richard's petition.
June 20, 2003 -- Richard filed a successive state application for the writ of habeas corpus, alleging he was ineligible to be executed based on Atkins claim of mental retardation.
June 27, 2003 -- The 5th U.S. Circuit Court of Appeals denied Richard permission to appeal his first federal petition and affirmed the judgment of the federal district court.
March 21, 2007 -- The Texas Court of Criminal Appeals denied Richard's second state habeas corpus application.
March 28, 2007 -- Richard filed a motion for authorization to file a successive federal habeas corpus petition in the 5th U.S. Circuit Court of Appeals.
May 15, 2007 -- The 5th Circuit Court denied Richard's motion for authorization to file a successive habeas petition.
June 12, 2007 -- The trial court set Richard's execution date for Tuesday, September 25, 2007.

Posted by: Constitutionalist | October 27, 2007 11:11 AM

Correction: I do not know that he plead guilty, the report says he admitted guilt, probably in a confession when confronted with the evidence. There is a significant difference there, but there is no doubt that he was guilty.

There is serious question, however whether the current method of execution, death by injection, is cruel and unusual. There is only the possibility that it could be extremely painful due to poor administration of the drug combination.

There is no doubt that there are many problems with the machinery of death and the proper administration of criminal justice in all cases, not just death penalty cases. But those are correctable shortcomings which should not render the death penalty unconstitutional.

If the AMA would allow physicians to participate in executions to ensure the proper administration of the drug combination the problem would not exist.

Posted by: Constitutionalist | October 27, 2007 11:20 AM

It would seem that, again, we have a contradictory argument here by Cohen and other anti-death penalty proponents. On one hand they argue that legal normative behavior requires that Judge Keller have heard Richard's appeal. However, they also argue that, as 'rooth' pointed out above, every legal technicality must be followed to the letter or the legal process is not fair.

This is contradictory in this way, the justice system in this country is set up so that both the public and the accused recieve justice. Yet the anti-death penalty advocates in this case would have Judge Keller violate a little technicality, the rule that all appeals must be submitted before 5 PM on the day of the execution, in favor of the accused.

If the justice system is set up to achieve justice for both public and individual, then it follows that both must be equally subject to all the rules all the time. The public's representative must follow all procedures and so must the accused's. There can be no bending of the rules, especially based on subjective, emotionally driven concepts, if justice is to be achieved.

This is the problem with the anti-death penalty crowd in particular and the left in general, they want the law to apply most of the time, to most people. But sometimes they want the law to bend. The problem is that this flexibility is not based on any new empirical evidence but rather on a purely subjective, emotionally-driven standard called compassion; which is almost always reserved for the accused.

For them it is fairness, not justice, which should determine how the law is applied. Emotion should trump logic and reason, especially in death penalty cases. This wrong-headed notion erodes the very concept of justice itself, warping it from a blind woman examining evidence to a doe-eyed nanny handing out extra cookies to the children.

Mr. Richard's death was, in fact, carried out justly. He was convicted justly and and sentenced justly. He failed to follow the law in filing his appeal and it was rejected, and rightly so. The law applies equally to both accusers and accused, and Judge Keller applied it thus. If we are going to hold that the prosecution must rigidly abide by the law in its case against Mr. Richard, then we must hold Mr. Richard to the same standard in appealing his conviction and punishment.

Posted by: Archimedes | October 27, 2007 11:44 AM

The law is the law. Mr. Richards broke the law. In Texas, if you break the particular law(s) that Mr. Richards broke, the penalty is death. Once upon a time, a death sentence was carried out immediately. In Mr. Richards' case, it took more than twenty years and two separate trials before he was put to death in accordance with the laws of the state of Texas.

Maybe lethal injection is painful. Maybe it isn't. Physician administration of the drugs won't change that. but maybe, just maybe, it doesn't matter that it's painful. Maybe ~5 minutes of pain is unfair...to the victim. I suspect that Ms. Dixon went through a lot more than 5 minutes of pain and terror; she might prefer that her murderer suffer more than he did.

In the end, justice was done. Mr. Richards' lawyers had twenty years to come up with new and innovative ways to evade justice, and did not do so. Judge Keller did the right thing.

Posted by: PJG | October 27, 2007 08:16 PM

I don't expect all these Keller fans to be able to sit through something like a documentary, but if they had the attention span, here is one they would find illuminating: The Thin Blue Line.

It may be a waste to suggest it, but I would hope that even the most bloodthirsty members of society would know that the innocent are sometimes sent to jail, and even executed.

Every man in Guantanamo is a terrorism SUSPECT. Doubtless many of them are guilty. Not every one of them. Maher Arar was innocent, and was belatedly freed, after a year of "harsh interrogation".

Posted by: CRix | October 28, 2007 02:01 AM

why do all you bleeding hearts worry so much about the KILLER and not the VICTIM..

his lawyers were wasting court time over whether HE would suffer. What about the VICTIMS? didn't his VICTIM suffer? Why no outcry about that???
He WAS a rapist and murderer.. and all you worry about is 'will he suffer??'
He got 20 YEARS to claim his innocence and guess what?? HE WAS GUILTY..

Funny you don't worry if a fetus suffers...

How about this? We'll ship all our murderers to your state and you can rehab them.. maybe a few good hugs will do...

Posted by: elarw | October 28, 2007 09:28 AM

Show me the Bible where Jesus says" kill the bastard".The convicted is in jail probably in a single cell on death row.What harm could come from allowing all appeals to expire?Judge Roy Bean Keller obviously on her own decided that if she waited he might not get the death penalty.If you kill and rape one person you get the death penalty.If you cause the death of 4000 Americans in foolishness they call you Commander In Chief.

Posted by: THOMAS BILLIS | October 28, 2007 08:01 PM

Dear restall,

Cohen is not whining over the execution of a rapist/murderer. He has raised important issues and provided answers (with which I agree).

Richards was held in jail and so he could not hurt anyone else. Your second submission, like your first, needs reconsidering.

You assume that he was being put to sleep humanely and that it is a kind punishment. Well, that was the issue that is to be tested by the Federal Supreme Court. Unfortunately, you do not provide any rationale to support your position even though your position is strongly held.

Judge Keller was given two legitimate reasons by Richards's lawyers when they requested an extension of time: they had computer problems and news of the Kentucky appeals.

One of the purposes of the judiciary is to ensure that all applications and applicants are given every reasonable opportunity to have their matter heard. The appeal that Keller obstructed involved serious matters. It was not trifling. Keller behaved spitefully. Her behaviour must make one ask if her own agenda is manifested by her decision. It seems fair to consider whether or not she has a punitive attitude towards applicants whom she does not like and if she is over zealous ly seeking to enforce her death penalty decision and to prevent it from being challenged.

She should be stood down pending an investigation into her behaviour. I note that many, many eminent state jurists and lawyers have called for an enquiry. I doubt that their intentions will be easily impugned unless the state is saturated with ignorant and foolish practitioners. I assume that these people have a good idea of how the sate's judicial system operates and that Keller has a reputation that causes them alarm.

Every so often judges who behave badly have to be removed from the bench. This is done to ensure that standards are kept at the highest levels. It also stands as a warning to all judges and future judges that they cannot act in a capricious and arbitary manner because that taints the system and ensures that it fails.

Restall should think again.

Posted by: Robert James | October 28, 2007 10:39 PM

Actually it's you pro-death folks who don't get it or just plain don't know what you're talking about. This is not about picking nits or requiring the states to follow technicalities. Missouri's lethal injection protocol was successfully challenged after pro bono litigators exposed shockingly abysmal procedures, including a supervising physician who changed anesthetic dosages from execution to execution and sometimes transposed dosage numbers because of his dyslexia. California's protocol was exposed as being inferior to that which the American Veterinary Association promulgates for animals. Nice.

And haven't we been told all along that one of the justifications for capital punishment is that it is being done "humanely" through "painless" lethal injection? That notion of painlessness is turning out to be false, and the State of Missouri implicitly admits as much when it takes the position that executions need not be painless in order to not be "cruel and unusual" under the Eighth Amendment. The State's position is that as long as it does not "intend" to cause pain, it may constitutionally do so in an execution through negligence or other goofiness such as using a dyslexic doctor.

Let's be honest about it. These executions satisfy a collective bloodlust. If it's painful, so what, it should be. And once you've rationalized that, go ahead and tell your lawmakers to televise these things, so we can all see how civilized and peaceful and just we all have become, thanks to your little monster hunt.

What are you afaid of? The same thing Killer Keller was afraid of? That you are getting closer to becoming the monster yourselves?

Posted by: ExAUSA | October 28, 2007 11:47 PM

I am an attorney but I have not actively handled criminal defense work in the last 30 of the 41 years I have practiced. I was a prosecutor 40 years ago. I am not a proponent of the death penalty but I am convinced of its [limited] utility in a very narrow range of cases, which I would enjoy discussing at length, but not here.
What strikes me is Keller's lack of professional courtesy. It is the usual matter for trial attorneys to find judges and clerks cooperative on late filings, whether for stays of executions or for simple TROs to save landmarks. Her signal withdrawal of the courtesy should be the issue for the Bar, regardless of the political fallout.

Posted by: Mark in Austin | October 29, 2007 08:21 AM

IMHO - being for or against the death penalty is not the key issue here.

The real issue that I see is simply that justice, or an aura of justice depending on one's views, which is administered by public servants, simply is not available after 5:00 PM in Texas - or at least not in Keller's courtroom.

All other arguments are moot.

Posted by: codgerdoc | October 29, 2007 10:15 AM

Please explain why his attorneys waited until the last day (and hour) rather than file their motions after the execution was set in June and its the judge's fault and not theirs?

Posted by: fred derf | October 29, 2007 10:19 AM

When Albert and his sister, Paula, left a few minutes later, Richard returned and entered the house. He took two television sets and put them in the yellow van, sexually assaulted Mrs. Dixon and shot her in the head with a .25 caliber automatic pistol. Her children found her. Richard admitted he did the crime.

Gee, it would have been nice if Marguerite Dixon had her rape and death by a shot to the head delayed 20 years by appeals, wouldn't it? I'm sure in tears she appealed for mercy while being brutally raped. And as the gun was put to her head she plead for her life. But's let's have some compassion for Michael Richard? 20 years of appeals was enough for Margarite's admitted rapist and killer. Did he maybe suffer some pain? We know Marguerite and her children did.

Posted by: BadgerOne | October 29, 2007 11:00 AM

Are we Michael Richard? Are we the Romans? Why is it that you can't understand the real point here? Your suggestion that those who advance these very legitimate Eighth Amendment claims are acting out of compassion for Michael Richard, or out of callousness toward his victim, is intellectually dishonest to the core.

Posted by: ExAUSA | October 29, 2007 11:20 AM

ExAUSA I have two questions for you.

1] The common courtesy I mentioned at 8:21A was always extended by the USDJ and USDC in Austin, as well as the state courts. Gilbert Gannicheeau once allowed me a late filing at the 5th Circuit in N.O. because my plane was delayed - he was the Chief Clerk of the Circuit. In your federal practice, wherever you are, have you not found that courtesy for late filings on stays, TROs, and the like are the norm? If so do you share my sense that this singular discourtesy on a death penalty stay is the Bar's issue?

2] Do you think Mukasey's apparent dedication to professionalism makes him an acceptable choice for AG even if he believes in the unitary theory of the executive?

Posted by: mark_in_austin | October 29, 2007 11:40 AM

fred derf, if you were a practicing attorney you would understand that the Supremes' decision announced that very day gave rise to the Stay Motion which had to be prepared and filed on a short time fuse. It could not have been "anticipated".

Posted by: mark_in_austin | October 29, 2007 11:44 AM

Pacifists be careful what you ask for; you got it in this instance.

I read thru most of the comments and came to this conclusion: The law enforcers wanted the law enforced and Richard executed in a timely manner. The pacifists wanted a delay at any costs and grasp at any straw to accomplish their goal.

Under Judge Roy Bean he would have been dead within hours particularly after a confession to his heinous crimes, but the pacifists had their way for over twenty years of appeals and legal avoidance of justice thru insistence of adhering to the letter of the law..

The pacifists kept this murderer/rapist alive by insisting on adherence to the slightest loophole in the law. Well the law said lock the courthouse door at 5pm, the judge adhered to the law. Why should she be criticized for complying with the law, this is what the pacifists have been clamoring for, for twenty years? The pacifist's insistence of compliance to the letter of the law finally bit them in the ass.

The FairTax SCHEME to replace the Income Tax, as proposed by Rep Linder and Neal Boorst will double the tax on savings, retirements and home equities of the nation.


Posted by: Gyro Tyro | October 29, 2007 12:21 PM

Excellent posts Archimedes and BadgerOne. One points out that the letter of the law was followed every step of the way for 20 years, even in the final decision to not accept an illegal late filing. The other puts into graphic perspective the crime that was committed. Richard was granted a second trial due to an error in jury instructions. Why the anti-death penalty crowd accepts that second trial as justice but won't accept refusal of a late filing is preposterous on its face. Why? Because one instance supports their case and the other doesn't. Even though both instances stayed exactly within legal precedents. I guess their criteria is only follow the letter of the law when it suits their purposes, not when it doesn't. Kudos Archimedes and BadgerOne for putting the whole incident into proper perspective.

Posted by: Tarheel | October 29, 2007 12:44 PM

Her jurisprudence erodes the rule of law. One reason African Americans don't "snitch" and never vote for death when on juries is conduct such as hers. Rather, there is a resort to vigialante justice within the community. If she doesn't watch it, she may find herself the target of such action

Posted by: Michael Bindner | October 29, 2007 02:44 PM

No, Tarheel, you are, unfortunately, full of it. There was nothing "illegal" about an after-hours filing. And when reversible errors were committed at the first trial, they needed to be vindicated because that's the law. I don't know how the courts ultimately will come out on the Eighth Amendment implications of having dyslexic doctors lethally inject prisoners under protocols that are not acceptable for dogs, and I guess I don't see the rush to execute before that question is settled. Oh, wait, yes I do -- it's your bloodlust. I'll say it again: You should admit your collective motivation here and open up these executions for broadcast, you Romans.

Mark, after-hours filings are common. Ask any federal practitioner, and state court is no different. Our district had and has an "emergency judge" on duty for just those sorts of requests. I appeared in front of them myself when trying to overturn late-afternoon decisions by federal magistrates to release defendants on bond, or when sorting out problems with supervised releasees who needed immediate attention from the courts or the Probation Department. When we'd report losing a detention hearing to a supervisor, his or her first question often was, "Who's the emergency judge?" The magistrates themselves always have one of their group on duty, and they are reachable by pager 24/7. We'd page them and drive out to their houses in the suburbs with an agent to get warrants signed, or to get authority to monitor a transmitting device in a vehicle that was going to enter private spaces. The city coppers have their own stable of favorite state judges who will sign warrants for them after hours. Believe me, there is plenty of opportunity for lawyers, and particularly government ones, to get access to the courts. I agree that Richard's case is not exactly like law enforcement's need to get a warrant, but when developments in the capital case that very day suggested that his lawyers would seek after-hours access, I'm not seeing a huge difference in terms of what did justice require. Killer Keller was just plain arbitrary and capricious.

Mark, that ought to answer your first question, and as for Mukasey, my earlier response is incorporated by reference as if set forth fully herein.

Posted by: ExAUSA | October 29, 2007 02:47 PM

exAUSA, I missed your previous response.

So we are in complete agreement on both of these matters.

I have thought back on my career and the only time I had a clerk in any court refuse a late filing I was in Key West. Everybody in the place had gone marlin fishing. I was not even actually late. They closed early.

Next morning they backdated the file stamp
on my pleading and ever other paper filed before 10 AM.

Kinda unique.

Posted by: Mark in Austin | October 29, 2007 03:25 PM

who is this restal bum?

Posted by: upstall | October 29, 2007 04:36 PM

I'll just repeat what BadgerOne so eloquently stated, "It would have been nice if Marguerite Dixon had her rape and death by a shot to the head delayed 20 years by appeals, wouldn't it? I'm sure in tears she appealed for mercy while being brutally raped. And as the gun was put to her head she plead for her life."

You so easily use insulting personal terms your like you're full of it (manure). There was none of that in my post. It shows what kind of person you really are. I won't stoop to your level of gutter insults. I have respect for different opinions. I'll reiterated what BadegerOne posted and I'll leave it at that. You can try to justify extending for 20 years the pain and suffering of Marguerite's family who can still can not have closure for her brutal rape and senseless murder. Those of us who have had loved ones brutally raped or killed in senseless acts have little empathy for people like you who twist the court system into knots to benefit criminals who have admitted their guilt.

Posted by: Tarheel | October 30, 2007 10:47 AM

Sorry, but I call it as I see it. You are full of it. This is not about Richard or his victim. It is about whether we as a government respect basic constitutional principles. That is what the reversal of Richard's first conviction was about as well. You don't seem to understand that. Instead you paint all who stand up for constitutional rights as people who twist the law, and as people who don't respect victims. This shows what kind of person YOU are. I am done sitting down and taking what people like you have been dishing out. I have prosecuted violent criminals and drug dealers, and in every case I prosecuted, I respected basic fairness and constitutional rights. Walk a mile in my shoes and then call me someone who twists the law for the benefit of criminals. You, sir, are a demagogue, and wherever you leave your manure, I will be there with a shovel and it will go in the gutter where you and your rhetoric belong.

Posted by: ExAUSA | October 30, 2007 05:00 PM

To "Just wondering"

A couple of years ago the holly rollers changed their bible to "thou shalt not murder" from "thou shalt not kill", so legally sanctioned slaughter is all good. It's odd, since "murder" is defined by secular law, and no where else in the bible does God subjugate his will to what is "legal" or "illegal" in the eyes of man (the definition of murder is an illegal premeditated killing).
They claim to have discovered new definitions for the ancient Hebrew words to explain the new interpretations of Divine will, but most of us realize it's just a smoke screen to protect the sensibilities of the republican base which must claim to hew to the word of god while simultaneously cheer leading for more slaughter.
If Gods law doesn't fit with your political agenda, change Gods law, it's the republican way.

Posted by: Dijetlo | October 30, 2007 11:16 PM

Judge Keller is a hero to the victims of America. One more rat killer off the earth and greedy lawyers lost a golden egg to screw the taxpayers out of their fees.
I will vote Judge Keller back in.
The liberal Washington Post and New York Times writers can also kill my A---

Posted by: vance | October 31, 2007 08:38 AM

Yes, those greedy lawyers who poured thousands of hours into Eighth Amendment challenges in various states. All pro bono, not paid a single dime. Their firms out hundreds of thousands if not millions of dollars. Greed, greed, greed.

Posted by: ExAUSA | October 31, 2007 11:42 AM

While w. was Governor of Texas, there was a series of murders committed by an assailant known as "the railroad killer" because he was moving from place to place by hopping trains. After several pro-choice doctors were killed, the murderer fled back to Mexico.

W. urged the family of the slayer to turn him in, "for his own good." The killer's family negotiated with w., through the Mexican Consulate in Austin, not far from the Governor's mansion. They agreed to surrender their own family member, on the condition that he not be subjected to "cruel and unusual punishment."

The deal was made, and the surrender took place at the Mexican border. The killer was immediately tried and put on Death Row, which in Texas is also known as "The Express Lane."

When the killer's family objected, and pointed to their stipulation against cruel and unusual punishment, W. merely replied that in Texas, the death penalty is not considered cruel or unusual.

And yet, in Texas, people still kill each other over parking spaces, former or current lovers, automobiles, etc. I have to admit that even the "Express Lane" hasn't had much effect. But law-abiding people in Texas believe in the death penalty strongly, and they would rather kill the killers than pay for them to stay alive, in jail, for the next 30 years.

The cost involved in housing killers for that length of time, plus the fact that killers could still find some kind of life or moments of happiness in jail, is what drives Texans to approve of the death penalty. Just be glad that tall trees and short ropes are no longer part of the justice system in Texas.

I'm sure that "Killer Keller" was just doing what she believed the public would want done. Mercy given to murderers in Texas is not appreciated by many people there, nor is a years-long appeal process or any moratorium on executions. In Texas, it's basically "get convicted, get dead."

Until you live in Texas, or maybe even after, it's a little hard to understand, but that's the way it is there. Frontier justice has mellowed, but not the wish to rid the state of convicted murderers without "coddling" them for decades while the victim(s) remain as dead as ever.

Posted by: Mike | November 7, 2007 11:14 PM

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