The murky matter of what happened to the last-ditch appeal of a Death Row inmate has remained murky as a federal court dismissed a wrongful-death suit against the Texas judge who closed the courthouse doors on the inmate's lawyers.

Michael Richard was executed by lethal injection Sept. 25, 2007, a few hours after Court of Criminal Appeals (CCA) Presiding Judge Sharon Keller allegedly ordered the clerk's office not to extend its hours of operation past 5 p.m. even though his attorneys had asked for 20 more minutes so they could file the appeal.

Keller's inaction prompted 150 Texas lawyers to file a complaint against her with the state Commission on Judicial Conduct. But U.S. District Judge Lee Yeakel said she was entitled to judicial immunity from the suit filed by Richard's widow and daughter.

“[T]his court must determine what Judge Keller did or not do,” he noted in a Sept. 29 opinion. Finding that “[p]laintiffs' factual allegations provide little guidance,” he concluded, “At worst, Judge Keller caused a document to not be accepted for filing, a clearly judicial function.”

Keller argued in her motion to dismiss that Richard's lawyers did not need the clerk's office to stay open after hours to file the appeal. “Texas law provides a clear and unambiguous avenue for litigants to file documents with the CCA directly through any of its judges,” she said.

Yeakel assumed there were telephone conversations between Richard's lawyers and the court on the day of the execution, but “[l]acking from the pleadings is any allegation that Judge Keller advised any attorney for Michael Richard that the court of criminal appeals would refuse a post-five o'clock filing.”

Nor had the plaintiffs alleged that the attorneys “attempted to deliver an appeal or stay [of execution] to the clerk or a judge, or that any attorney attempted to contact a judge of the court to accept delivery.”

The judge assigned to the case -– Cheryl Johnson –- did not hear about the appeal until after Richard was executed. The court's unwritten policy at the time was to refer a death row inmate's appeals to the assigned judge.

Yeakel did not discuss whether Keller should have made sure that Richard's lawyers knew they could bypass the clerk's office and file directly with Johnson -- which, given what was at stake, wouldn't have been asking too much of her.

The dismissal of the case was without prejudice, meaning the plaintiffs can amend their complaint to perhaps fill in the factual gaps. Yeakel denied their request to depose Keller and other court officials for purposes of opposing the motion to dismiss.

On the morning of 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 time ran out on them.

Keller “without any authority to do so ... prevented a death penalty appeal to be filed with the Texas Court of Criminal Appeals, thereby causing the death of [Richard],” the wrongful-death complaint said.

By Matthew Heller
10/5/08