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Friday, October 05, 2007

More facts received, and more yet to come, about Michael Richard's blocked application for a stay of execution

After writing my post yesterday, I sent the following email to Austin American-Statesman reporter Chuck Lindell, whose news story Wednesday had been picked up by the AP and others:

Mr. Lindell:

Re your report in Wednesday’s Statesman about the handling of the stay of execution application in the Michael Richard case, you might be interested in some reactions from both left and right among legal bloggers.  You’ll find links and my own take at my blog.

I look forward to your follow-up reporting, but would also appreciate any supplementation you might make or comments you might have via email, either for attribution or not as you prefer.

- Bill Dyer a/k/a Beldar

I received this gracious and self-explanatory reply this morning:

I can answer one of your questions — about the presence of Ed Marty in the story.

The request to remain open past 5 was made to the clerk's office. The clerk asked Marty for an opinion. Marty consulted with Judge Keller, and Marty delivered the news back to the clerk, who called [Texas Defender Service]. In the constraints of space and time (not getting sci-fi on you, but space in the paper and time on deadline) that progression got crunched.

If communication broke down somewhere along that path, it's as yet unexplained.

Also: The term "keep the court open" was used by TDS, so I used it. They also said they asked the court if they would accept a filing after 5 p.m.

I do not know if the term "emergency filing" was used, and (frankly) I did not realize there could be a difference between asking to stay open and asking to accept a late/emergency filing, so I didn't push TDS for a very specific accounting of what they requested.

I can try to answer any specific questions you may have. Feel free to post what you'd like. It's all information, and I'm in the information biz, as we say. One of the pitfalls of writing for a general audience is the omission of minor details that are major details to people who practice law.

Oh, and no more of this "mr. lindell" — I'm Chuck.

Thank you, Chuck! I hereby nominate you for the "2007 Most Cooperative MSM Reporter Conspicuously Lacking Any Chip On His Shoulder When It Comes to Bloggers Award"!

I've also received a reply email tonight from University of Houston Law Professor David R. Dow — who was among the lawyers representing Richard and who's among the most active and widely-quoted scholar-practitioners involved in Texas death penalty defenses and appeals — graciously consenting to my request for a telephone interview. He's traveling over the weekend, and I hope to catch up with him by phone at his convenience as early as Monday morning.

This interstitial information in Chuck Lindell's email response, like that in today's very interesting Houston Chronicle story, nevertheless still leaves me wondering whether Texas Court of Criminal Appeals Presiding Judge Sharon Keller actually made a knowing and deliberate decision to prevent Richard's defense team from filing an emergency stay application outside regular court hours, or whether instead this was a communications breakdown — and if it was the latter, exactly how it happened.

I genuinely would like to know — and not because I've got any stake in defending Judge Keller in particular, nor because I want to divert blame onto anyone on the defense team.

Indeed, I'm yet to be convinced that "blame" is the right word with respect to anyone involved. It bears repeating that everyone in this situation, both at the Texas Court of Criminal Appeals and on the defense team, was necessarily acting under enormous time pressures — caught between an unpredicted SCOTUS cert grant from the Baze case from Kentucky and the Richard execution scheduled for that very same night. There are many ridiculous last-minute stay applications filed without any good excuse for why their arguments couldn't have been raised earlier — but this was emphatically not such a case. The Baze cert grant was indeed a big deal in terms of shifting the balance of factors that courts use to consider those applications in death cases, regardless of whether Baze eventually does or doesn't end up prompting a revamp of execution technology and practices.

That the Richard defense team was able to generate a same-day reaction at all is to their enormous credit; and I didn't previously know that the Texas Court of Criminal Appeals in fact routinely makes detailed preparations in anticipation of last-minute applications in connection with all executions (although I'm not terribly surprised to learn that). At the beginning of my career — not so many years ago — in a pre-fax machine, pre-internet, pre-24/7/365 news environment, assembling a stay application on this sort of time-table, and getting it considered on its merits by not only the Texas Court of Criminal Appeals but then the SCOTUS within a matter of hours after a cert-granted announcement, would have been thought a wild fantasy. Yet today we're seriously asking ourselves if it's a tragedy that all that couldn't be accomplished within those same few hours.

And in terms of the prejudice from the failure to get a consideration of the stay application on its merits, I suppose things certainly could also have been worse: If there were serious alternative grounds for the stay besides the cert grant in Baze, I'm unaware of that; in prior proceedings, Richard almost certainly got full and due consideration on the merits of any other defenses he might have had. The only real consequence was that Richard was executed using the same three-drug "lethal cocktail" that Texas and other states have used in hundreds of executions; and there's no reason to think that Richard's executioners missed his vein and pumped the mix into his muscle mass (as apparently happened in a recent Florida execution, with disturbing results).

But anyone who values due process — and especially the awesome solemnity and responsibility that ought to attend legal proceedings in all capital cases, whether one supports or opposes the death penalty — nevertheless has to be concerned over this situation. There may be important lessons to be learned for at least some, and perhaps many, of the court and defense team personnel involved in this and similar cases. Moreover, in a system in which the AEDPA requires exhaustive presentation of grounds first to state courts before federal courts will consider intervening, the quality of practical access to those state courts is important.

And there may be other systemic implications that merit consideration by the Texas legislature and Texas' highest courts in contexts not limited to death cases: Our federal courts, for example, now almost universally accept — and are coming close to mandating — internet/email filings, whereas the Texas state trial and appellate court systems almost universally forbid them. One can be, like me, a skeptic about the notion of a "living, breathing Constitution" without necessarily also being a Luddite. And when it comes to deciding what "process" is "due," instances like this one should probably prompt us to reconsider whether digital/cyberspace-processes are being short-changed or prohibited without particularly good reason.


Previous posts on the Richard stay application matter, oldest to most recent:

  1. Was Michael Richard executed because Presiding Judge Sharon Keller ordered the Texas Court of Criminal Appeals' doors closed at 5:00 p.m. before his emergency stay of execution application could be filed?

Posted by Beldar at 06:28 PM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to More facts received, and more yet to come, about Michael Richard's blocked application for a stay of execution and sent a trackback ping are listed here:

» Press and public mostly still misunderstand issues in Keller judicial complaint from BeldarBlog

Tracked on Feb 18, 2010 7:14:58 PM


(1) dave made the following comment | Oct 5, 2007 6:59:08 PM | Permalink

I truly do not believe that Keller made any decision to deny a prisoner his right to a last minute appeal.

So far, we haven't heard much from TDS, which makes me suspect they are afraid of being accused of IAC. I'm curious to know where was Richard's lead atty. SF or Austin?

I would think that in the future, that the judge who is on call to handle after hour petitions, is reachable by phone or pager and defense counsel makes the effort to be aware they can reach them.

Frankly, if I was the defense atty, while someone was preparing to file in the ussc, I would be banging on the courthouse doors and windows looking for a judge. The execution was scheduled for 6 but delayed to after 8 pm because of the ussc filings.

(2) DRJ made the following comment | Oct 5, 2007 9:05:42 PM | Permalink

I don't know about you but, to me, this gets curiouser and curiouser.

(3) DRJ made the following comment | Oct 5, 2007 9:06:45 PM | Permalink

PS - Fabulous job, Beldar, and I agree that Chuck Lindell deserves an award.

(4) antimedia made the following comment | Oct 5, 2007 10:01:48 PM | Permalink

I hate lawyers (and my brother is one.) But I swear, Beldar, your graciousness and respect for the law actually has me giving grudging admiration to not only you but to the law which you so clearly reverence. Would to God that all lawyers were of your caliber, sir. Our nation would be greater for it.

(5) mix made the following comment | Oct 6, 2007 12:03:22 AM | Permalink

Why you are asking questions could you check on the whole "keep the court open" phrase, is it a regional usage? It sounds off to my ear too, but so does calling an appellant a defendant and I KNOW the latter usage is common in many places ( prolly more common than appellant, in truth).

(6) juandos made the following comment | Oct 6, 2007 9:06:01 AM | Permalink

Was Richard soundly and thoroughly convicted of murder & rape?

Was there really any question at all?

Was the evidence overwhelming that Richard was guilty?

(7) Leif made the following comment | Oct 7, 2007 11:42:18 PM | Permalink

Beldar, the Chron's Rick Casey takes a characteristically ham-handed swipe at the issue in his latest column.
I guess he doesn't surf the blogs before he submits this stuff.

(8) SPO made the following comment | Oct 9, 2007 12:57:35 AM | Permalink

I am completely mystified at the concern over poor Mr. Richard's plight.

First of all, the idea that Baze changed things is silly. The grant of cert. does not create claim where none existed before. As a result, it is preposterous to suggest that the granting of cert. made a filing that clearly was dilatory somehow no longer dilatory. Claims over lethal injection have been going on for years. Richard's execution date had been set a while ago--there is simply no excuse for not having filed earlier. None.

Second, we seem to have forgotten the victims' families. The more courts keep themselves open to these last-minute stay requests, the more victims' families are going to suffer the unfathomable cruelty of these last minute stays. As the Supreme Court has noted, "Both the State and the victims of crime have an important interest in the timely enforcement of a [death] sentence." Of course, this does not keep the Supreme Court from issuing these last-minute stays (to their disgrace, in my opinion). If courts were less charitable to last-minute appeals, we'd have far less of them, which would be for the good.

Third, why in the world should Texas be forced to do email/internet filing just so convicted murderers can toss one more appeal into the mix (after years and years of them)? There is no due process issue here.

Richard had a bunch of appeals--all turned down. There is no doubt he committed murder. There is no doubt he could have filed his LI claim earlier. Why is there any injustice here? I see none. And, quite frankly, I find the squeamishness here hilarious. Executing criminals with a method that has not been declared unconstitutional is just not that big of a deal.

(9) Beldar made the following comment | Oct 9, 2007 1:16:23 AM | Permalink

SPO, when you write, "The grant of cert does not create a claim where there was none existed before," that's not quite right, and it's not quite the point. What the grant of cert does is to dramatically alter — in favor of the petitioner — the likelihood that his challenge to the three-drug cocktail currently used in the Texas lethal injection system will succeed, and that the present system be declared unconstitutional.

It hasn't been declared unconstitutional yet, that's true. But what has changed is that we now know that the Supreme Court is about to clarify, and perhaps even turn on its head, the existing "method of execution" law — something the Court hasn't directly addressed on the merits since the 1970s. That's a big deal. It's disingenuous for us supporters of capital punishment and victims' rights to pretend otherwise.

(10) SPO made the following comment | Oct 9, 2007 2:16:04 AM | Permalink

Oh yes it is quite right. Absolutely right. The question of when a claim begins has nothing to do with whether cert. is granted. Nothing. Richard has had notice of his lethal injection claim for years, a fact which seems to have been missed.

As for my disingenuousness, I don't think that's accurate at all. I am quite forthright. I don't really care, vis-a-vis Richard, Chi and all the other murderers who will be getting stays, whether LI is constitutional or not. The State's interest in carrying out its criminal judgment, procedures which have not been declared unconstitutional, far outweigh a murderer's right to delay his execution based on a late-filed claim that it might hurt too much. The maxim that equity aids the vigilant and does not aid those who sleep on their rights should apply with maximum force when someone files a stay application the day he is to be executed.

In my opinion, your handwringing over all this is simply squeamishness. No laws were broken, and that's all that's really required. And why should a court bend over backwards to help out a murderer? A lot of other litigants with a lot more right on their side get a lot less friendly treatment from the courts.

(11) Beldar made the following comment | Oct 9, 2007 2:50:58 AM | Permalink

SPO, if you think I'm "squeamish," you haven't read much of my prior blogging on death penalty cases.

The question of whether a claim will succeed does indeed change with precedents from the Supreme Court. The relevant law on stays, in turn, provides that the probability of a claim's success is an important factor.

You're entitled to your opinion that the grant of cert in Baze doesn't matter. I disagree. The Supreme Court apparently disagrees. The Texas Court of Criminal Appeals apparently disagrees. It's not about "bending over backwards to help a murderer." It's about due process and the Rule of Law.

(12) spo made the following comment | Oct 9, 2007 4:37:00 AM | Permalink

Given the quote from a unanimous Supreme Court case, I'd hardly call this the rule of law, nor is it at all required by due process.

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