A Texas judge has responded to a lawsuit filed by the widow of a Death Row inmate, insisting she had “no reason” to exercise her authority and allow the inmate's lawyers extra time to file a last appeal.

Marsha Richard alleged in her unusual wrongful-death suit that Court of Criminal Appeals Presiding Judge Sharon Keller “prevented a death penalty appeal to be filed with the Texas Court of Criminal Appeals, thereby causing the death of plaintiff's husband.”

The judge closed the courthouse doors promptly at 5 p.m. on Sept. 25 even though Michael Richard's lawyers had asked for 20 more minutes because of computer problems. He was executed by lethal injection a few hours later.

In a motion to dismiss filed last week, Keller puts the blame squarely on the defense team.

“Texas law provides a clear and unambiguous avenue for litigants to file documents with the CCA directly through any of its judges, so Richard did not need the CCA clerk’s office to stay open after hours to file his motion,” she argues. “Thus, there was no reason for Judge Keller to exercise her authority ... to keep the clerk’s office open after 5 p.m.”

Two other judges, Paul Womack and Cathy Cochran, also were available at the courthouse to handle the appeal, but they and the judge assigned to the Michael Richard case -– Cheryl Johnson –- did not hear about it until after he was executed.

“[H]ad Richard chosen to contact them, at least three judges were prepared to accept and act upon his filings,” Keller says.

The motion does not explain, however, why Keller told the inmate's lawyers, “We close at 5.” As the Texas Kaos blog suggests, she should have said,

“We close at 5, but I have the authority as presiding judge to keep the court open past five in order to accept your appeal or you may just contact the duty judge on this case who is Judge Cheryl Johnson and here is her phone number.”

Indeed, Keller has admitted to the Houston Chronicle that the court's unwritten policy at the time of Richard's execution was to refer a death row inmate's appeals to the assigned judge. The court adopted written policies last month that reflected the unwritten procedure.

“To me, it's a pretty stunning admission that she operated totally outside of their procedures,” said Jim Harrington, a lawyer who has coordinated attorney complaints filed against Keller with the Texas Commission on Judicial Conduct. “She doesn't have respect for the processes of the court, which are designed to protect due process.”

Keller also argues she is immune from liability for an act taken in her official capacity and that Marsha Richard's efforts to sue her for failing to prevent the execution “are analogous to suits for a lost chance of survival or cure, which have been soundly rejected in medical malpractice cases.”

In Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397 (1993), the Texas Supreme Court has barred “liability for negligent treatment that decreases a patient’s chance of avoiding death or other medical conditions in cases where the adverse result probably would have occurred anyway.”

On the morning of Michael Richard's execution, the U.S. Supreme Court agreed to hear a challenge to the lethal injection protocol used by Kentucky. His attorneys were working on an appeal that raised a similar challenge when Keller closed the courthouse doors on them.

By Matthew Heller
12/18/07