Just a day after filing it, the widow of a Death Row inmate dropped her civil-rights suit against a Texas judge who allowed her husband's execution to proceed after refusing to give his lawyers 20 extra minutes to file a last appeal.

Court of Criminal Appeals Presiding Judge Sharon Keller closed the courthouse doors promptly at 5 p.m. on Sept. 25 even though Michael Richard's lawyers had asked for more time because of computer problems. He was executed by lethal injection a few hours later.

Keller's conduct prompted 150 Texas lawyers to file a complaint against her with the state Commission on Judicial Conduct. And Richard's widow filed suit Nov. 7 in Houston for unspecified damages and an injunction preventing Keller and her fellow appeals court judges “from again unlawfully interfering with the due process appeal rights of the condemned.”

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 plaintiff's husband,” the complaint says.

But Marsha Richard filed a notice of dismissal Nov. 8. The court document gives no explanation and her attorney, Randall L. Kallinen of Houston, wasn't much more forthcoming when contacted by On Point.

“At this time, I can't divulge legal strategy that could help the other side,” he said cryptically. Asked if he would be refiling, he replied, “That would be divulging legal strategy.”

The case had several glaring problems, among them the qualified immunity judges enjoy for their administrative acts. Moreover, with her husband dead, Marsha Richard has no standing to seek injunctive relief on behalf of the condemned.

“Maybe her lawyer realized the suit has no merit,” speculated University of Houston law professor Peter Hoffman. By dismissing the case so quickly, he noted, Kallinen avoids any risk of frivolous lawsuit sanctions.

Another possibility is that Kallinen, who is associated with a civil liberties group, will find a live Death Row inmate to act as plaintiff. But that would preclude suing for any damages.

A wrongful-death claim in Richard's complaint alleges Keller is liable for the pain and suffering and “awareness of impending death” of her husband “before his untimely, painful and unnecessary death.”

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.

The Texas criminal appeals court has said it will now accept emergency e-mail filings in death penalty cases in order to avoid a repetition of the Richard fiasco.

By Matthew Heller
11/9/07