Osler's Razor

Two things:

1. The complaint quotes the Waco Trib. Seems like that should lock the case up right there.

2. Seems like a really awful thing done by the Judge here. However, there is that old saying, "this isn't 'Nam, there are rules." The clerk's office closed at 5. Gotta get it in by 5.
 

It was within her discretion to bend the rules and accept the late filing which she didn't do. A boneheaded thing to do considering it was a detah penalty case and doesn't do much to enhance the public's faith in the judiciary. Also boneheaded for the law firm filing the appeal to wait until the eleventh hour to file. Makes me wonder if the representation was pro bono and if things would have been different if they had a paying client. Seems like there's enough blame to shift around on this one.
 

It was within her discretion to bend the rules and accept the late filing which she didn't do. A boneheaded thing to do considering it was a detah penalty case and doesn't do much to enhance the public's faith in the judiciary. Also boneheaded for the law firm filing the appeal to wait until the eleventh hour to file. Makes me wonder if the representation was pro bono and if things would have been different if they had a paying client. Seems like there's enough blame to shift around on this one.
 

1. The decision upon which the stay was based was handed down earlier the same day as the execution. Not a lot of time to prep. It is unreasonable for death case attys to prepare paperwork ahead of time for every possible USSC case that might give cause for a stay.

2. His attys, with the Texas Defender Service, who are generally appointed counsel, where working on the request when their computers failed. They called the CCA before the office closed.

3. The CCA clerks are frequently on stand-by after hours on execution days, especially when late filings are expected. RRL, late filings are also commonly accepted on execution days for the client who is about to be killed, so that is the rule that should have been followed.

4. Keller violated court procedure by not telling the judge who was actually presiding on the case that the defense atty had requested extra time to file. Combined with her affirmative act of telling the clerk's to shut down, that's actus reus.

5. She then concealed her knowledge of the request until it was revealed publicly by the media, surprising other members of the CCA. That's a guilty mind.

6. She had to know that what she was doing would result in the death of Mr. Richards. That's mens rea.

I'm not so sure what's unclear about this case. If those factual allegations are true, she helped kill a man and did it when she had a legal and moral duty to protect his rights.

TDS isn't the greatest group of lawyers in the world but they work on a lot of cases other attys won't and for very little pay. They are also generally carrying a large caseload. I would blame the system that denies defendant/appellants the resources for adequate representation before I would blame them. Some of them are quite skilled.

Keller should be on criminal charges. The level of evidence against her would be used by most DAs in this state to pursue a conviction. I've seen thinner cases get convictions. She's getting treated very politely and the other justices ought to be more concerned with her conduct than in covering up the evidence. She deserves to be in jail and is rightfully known as "Killer Keller" for at least knowingly killing a man with a legit chance of being allowed to live. In Texas, we call people who knowingly hasten another person's death, even if the death is inevitable, "murderers." Under the standards for proof she has used to uphold convictions, Sharon Keller is a murderer.
 

Joe, I can assure you that most of your "facts" are incorrectly stated and, of course, skewed to the defense side of things. Hence, I'm not going to laundry list each error...people can make up their own minds.
Suffice it to say, she has the support of many prosecutors around the state. She has been a fine justice on the court and deserves more respect than she has recieved.
If she's guilty of anything, it is not forshadowing the firestorm that errupted based on her decisions that day.
Like many in Texas, I feel that if what amounts to a "supreme court" tells you to be there by five...you'd better be there by 4:30.
 

received
 

I agree wholeheartedly with Joe. And I don't think I'm particularly defense-friendly, but Keller's actions reek of bloody vindictiveness. A judge that has the power to vindicate a sentence of death should not allow herself to be vindictive. One should pass the ultimate punishment with a sense of final resignation, not bloodthirsty eagerness.
 

I would like to point out that I was kidding. Sometimes I'm not 100% serious. I quoted "The Big Lebowski" for goodness sakes. My bad.
 

Looks like Joe's fact are taken from the Notice of Formal Proceedings against Keller: http://www.scribd.com/doc/12667031/State-Commission-on-Judicial-Conduct-Notice-of-Formal-Proceedings

Those technical procedure arguments don't hold water when you're talking about a person's life. Even if you believe the Judge isn't at fault you should not blame the attorneys for the man's death.
 

Sorry, RRL, missed the Lebowski ref, and he's got most of the best lines in the flick, too. Obviously, my emotions run high on this issue. I am very defense minded. :)

Tswain is right. I took my allegations from the official docs. What I've heard through the grapevine is worse.

And while I agree that attys should always try to be early and have their filings in early, that just isn't always possible. TDS is chronically overworked and to expect them to incorporate language from an opinion released earlier in the day without pushing some deadlines is wholly unrealistic. To expect them to back up all of their work to a secure system in case of a computer crash while arguing brand new law is . . something I would be ridiculed for suggesting to a jury as part of the state's burden.

The bottom line is this: Keller knew the effect of what she was doing, knew that she was supposed to communicate to the justice on call, knew that extensions in such instances (and for less) were often granted, and did it anyway. Then she hid it.

At a minimum, and I hope dallas ada can agree, she was exceptionally rude to leave the other justices hanging when she was at home and had made the call that would let them go home, too. That's the kind of boss nobody likes. I wonder why she didn't want anyone else to know that there would be no last minute filings and they didn't have to hang out at the office all evening?

Maybe because everyone else seems to appreciate the gravity of a state sanctioned killing. Maybe because they would have stopped it, at least until they were sure it should happen under substantive, as well as, procedural law. Maybe because they didn't want to be part of another human being's death without being damn sure he needed to die. What in Keller drove her to ignore all of that and let a man be killed because his lawyers were running a half hour late? There are no answers to that question that speak well of her.

If dallas ada thinks my facts are wrong, or can answer these questions, then I hope she will explain. I'd love to believe, as a Texan, as a member of the community on whose behalf Richard's was killed, that everything is ok and my hands are clean. Right now I think the only penance available to me is to denounce what led to this travesty as strongly as possible so it might not happen again. Sadly, I don't doubt many in the community of lawyers most able to give Keller what she deserves are actually supporting her. I am proud that not all of them are and wish they felt more comfortable saying what they think publicly.
 

Don't get me wrong here, I'm not trying to say that what she did was smart...by any means. But from what I read in the formal proceedings, I don't think that the actions amounted to a concerted effort to screw someone over. I agree that she should know better as to what the effects may be, but I'm not willing to say she was just being a malicious bitch with her actions.

A problem with bright line rules involving death penalty cases is that those on the anti side will never accept them regardless of the slippery slope.

15 minutes late? - ok a life is involved!
30 minutes? - not a problem!
computer down? can I file it tomorrow? - of course you can, a life is at stake
I'm an ignorant/stupid lawyer and need another week to write a better appeal? - sure we'll delay, after all a life is involved.

Why isn't it ok for us to have bright line rules like this in a system of justice!? I understand that people feel strongly about a person's life, but we can't make exceptions to everything based on what is currently regarded as a minority moral opinion.

I just can't believe we are trying to sanction a judge for RELAYING what should have been said when the clerk picked up the phone.

With regard to the facts, there isn't anything that says she knew the messages had not been relayed to the presiding judge and I'm not about to guess what she knew until she takes the stand and I can see for myslef if I believe her. But, the only question she recieved was vague and related to the office being open/closed, to which she responded as she should. Yet we know nothing about this "computer failure" and when it occured and to what degree, other than the idiots handling the appeal calling 15 minutes before close and then after the scheduled execution time to see if they could "drop off an appeal."

I for one am not going to throw away a career and life of service to victims and the community based on her enforcing rules..cruel as it may be to many.
 

First, there was an established course of dealing in which the CCA accepted last minute filings, after hours on execution days. Keller knew that and changed the rules at the last minute.

Second, there is no slippery slope here. Texas has some of the toughest rules on deadlines for appeals in death cases anywhere. AEDPA toughened the federal rules considerably. The exeception the TDS lawyers where looking for was an exception restricted to execution days only. There's your bright line. Another, that can never be crossed, is when the accused is actually killed. That time is set and that act carried out by TDC, not the CCA. So, there's no slippery slope.

Third, if Keller was going to be a stickler for the rules, even though it meant a person would be killed, then she should have been a stickler for the rules regulating her conduct. Those rules required her to ensure that the message was relayed to the presiding justice. She committed a man to die for a sin of omission (missing a deadline), she can at least lose her license for the same thing (failing to make sure the other justices knew). Nothing unfair about that, I'm just applying the same standards Keller would.

Fourth, it is absurd to suggest Keller thought the clerk rushed to contact her at home with that question, on an execution day, when a last minute filing was expected in the death case, just out of general curiosity. Even if the clerk failed to say he was calling in regards to the death case, that would've been understood by any reasonable person in Keller's shoes, even w/o her copious experience in these specific matters.

Fifth, Richards was a member of the community Keller was supposed to be serving. His rights were/are the rights of the rest of us in the community. If prosecutors or judges forget that, they become tools of injustice regardless of how many victims feel a nice warm sense of revenge. Let's not forget there are a lot of innocent people who were victimized by our system when they were wrongly executed. Nobody is served well by the state killing a person whose legal rights have not been fully exhausted. Keller should have erred on the side of caution but chose to forsake SUBSTANTIVE law for procedural pettiness. And she did it knowing a man would die. Doesn't that scare you just a little bit?
 

I wont' even disagree with most of your comments because in large part I agree with many points you make.
But will point out, in point 3 you say that she was violating rules by not forwarding the message to the presiding judge. I will agree that if she knew the message was about the filing and dealt with the case then you have a much better argument.
In point 4 however you conjecture as to what she knew and how anything other than your opinion is "absurd." A clerk calls and says: someone wants to file something late. Your response should be to say no and end it. Which is possibly what might have happened.
YOU DON'T KNOW THAT IT HAPPENED ANOTHER WAY, you are just guessing based on what you read. You don't know what she knew and what she understood at the time. Don't you think she's entitled to give an explaination first?
Or would you rather I convict all of your clients based on the police report?
Maybe if she asked "who's asking to file late" she might have learned who it was and made a better decision. Maybe she would have said the same thing.
Point is, I'm not about to guess, convict, disbar, and throw in jail, a woman with an exceptional history until she takes the stand and I can see for myself if she's telling the truth.
The least you could do is wait until you hear and see her, but take the defense bar colored glasses off before you do.
 

Who else would be asking for permission to file late on an execution day? Nobody else would be up against such a hard deadline, nobody else would have an expectation that they might be allowed to file late. They don't stay open for other late filings, so the only time the clerk would even have a question would be if a request for late filing was related to an execution that day. That's why it would be absurd for Keller to think the clerk called her for something else. And people do get charged with negligent homicide in Texas, so mens rea for a criminal act is sufficient for her to be charged.

You never have absolute evidence of a person's mental state, but we still find lots of folks guilty for crimes with an intent component. There's at least enough to put this in front of a jury and let them decide. And since the other facts aren't in dispute (your police report rhetoric aside), yes, I think you can convict. My defense-colored glasses would tell Keller to consider a plea because part of my role is to objectively assess my client's chances. I know a criminal when I see one.