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?

From the right, DRJ at Patterico's Pontifications titles her post "We Close at 5." From the left, Jeralyn Merritt at TalkLeft titles her post TX Judge Closes Courthouse, Prevents Death Appeal.

I like and respect both of these lawyer-bloggers, so I paid close attention when both of them pronounced themselves appalled by linked and quoted* reports of the Texas Court of Criminal Appeals' handling last week of an emergency application for a stay of execution in the case of capital murderer Michael Richard. Jeralyn linked an AP report as reprinted in the Houston Chronicle, and DRJ linked essentially the same AP report as it ran in the Dallas Examiner. The AP report, in turn, appears to rely exclusively on an article from yesterday's Austin American-Statesman, so that's what I'll quote from at length:

The Chi ruling [announcing that the Texas Court of Criminal Appeals was staying Heliberto Chi's execution based on the U.S. Supreme Court's having agreed to hear a Kentucky case, Baze v. Rees, challenging the constitutionality of the three-drug "lethal injection cocktail" used in both states,] came as new details emerged about the Texas court's refusal to stay open past 5 p.m. on Sept. 25 so lawyers could file an appeal on behalf of death row inmate Michael Richard. The Supreme Court had accepted the lethal injection case earlier that day, and Richard's lawyers argued that the extra time was needed to respond to the new circumstances and to address computer problems that delayed the printing of Richard's motion.

Richard was executed later than night, and news of the court's refusal appeared in newspapers, and critical editorials, around the world.

Last week, court personnel declined to say who made the decision to close at 5 p.m.

It was revealed Tuesday that the decision was made by Presiding Judge Sharon Keller without consulting any of the court's eight other judges or later informing them about the decision — including Judge Cheryl Johnson, who was assigned to handle any late motions in Richard's case.

Johnson, who learned about the request to stay open past 5 p.m. in an Austin American-Statesman story, said her first reaction to the news was "utter dismay."

"And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings."

Johnson said she would have accepted the brief for consideration by the court. "Sure," she said. "I mean, this is a death case."

Judge Cathy Cochran said the Richard case raised troubling questions.

"First off, was justice done in the Richard case? And secondly, will the public perceive that justice was done and agree that justice was done?" Cochran said. "Our courts should be open to always redress a true wrong, and as speedily as possible. That's what courts exist for."

At least three judges were working late in the courthouse that evening, and others were available by phone if needed, court personnel said.

None of the judges was informed of Richard's request by Keller or by the court's general counsel, Edward Marty, who had consulted with Keller on the request.

Keller defended her actions, saying she was relating the court's longstanding practice to close on time.

"I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given," Keller said. "And I know that that is not what other people have said, but that's the truth. They did not tell us they had computer failure.

"And given the late request, and with no reason given, I just said, 'We close at 5.' I didn't really think of it as a decision as much as a statement," Keller said.

[Executive director of the Texas Defender Service Andrea] Keilen, whose organization also handled Richard's appeal, said court clerks were informed about the computer problems.

The clerk's office, asked whether Keller was told of the malfunction, referred questions to Judge Tom Price, who is in charge of court personnel. Price did not respond, and calls to other judges were not returned Tuesday.

"I’m a stickler for law and order but not this kind," writes DRJ. "Outrageous," comments a self-identified former prosecutor at TalkLeft. "Keller's move is ... perilously close to simple murder," accuses another.

So what was my first reaction when I heard this? It was this: "Did they really ask to keep the courthouse open? Or did they instead ask to arrange for an after-hours emergency filing?" Because in deciding whether there was a significant malfunction here, and if so, who was to blame and in what degree, there may be a big difference between those two questions.

*******

Regular readers will know that it's hard for me to express an opinion on something without telling a Beldar war story, and a couple came to mind when I read of this controversy. You can skip them if you're impatient. I've mentioned one of them already in the comments over on Patterico's:

I am a strong proponent of capital punishment. I have been a frequent defender of the Texas judicial system’s administration of the state’s capital punishment laws.

But I was also once a federal appellate court clerk who, from time to time, was “on call” to handle emergency (read: “last minute”) filings in capital cases. And from time to time in that capacity, I had to take extraordinary steps to track down and get in touch with my own judge or one of her fellow judges after hours or on court holidays. I once read an emergency motion aloud over the phone to a Fifth Circuit judge who was standing in his fishing waders on the porch of his East Texas fishing cabin. We hadn’t expected to have to do that, but we’d made plans so that we could if the need arose, and it did; and the judge made a ruling on the merits, which I relayed to a designated deputy clerk of the Fifth Circuit in New Orleans, and thence to the litigants.

I also made a comment there regarding the scope of the potential blunder, if there was one in this instance:

As far as how big a deal this is, overall and in the big picture: Keep in mind that there is no suggestion that because of this communications problem, an "innocent man" was wrongly executed. And there’s no suggestion that Richard’s execution was any more or less painful than any of hundreds of others than have taken place over many years in Texas and many other states.

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But this episode also causes me to flash back to Christmas of 1982, when I was a young associate at Baker Botts. On December 21 of that year, our client Burlington Northern had announced a surprise hostile tender offer for some, but not all, of the stock of El Paso Gas Company. The offer was frankly timed to coincide with the holiday season in hopes that might prevent the target from reacting as swiftly and effectively as it otherwise might. But El Paso Gas found a home-town state-court judge who issued an ex parte temporary restraining order ("TRO" for short) purporting to enjoin Burlington's tender offer altogether and — in a nice piece of legal jujutsu — El Paso Gas got that state-court TRO on the morning of Christmas Eve.

Now, we had anticipated just such a lawsuit, and we were fully prepared to dash into federal court to ask a federal judge to enjoin the state-court judge from enforcing such a TRO. In fact, we already had our counter-suit papers (including our TRO motion) drawn up, with just a few blanks remaining to be filled in. And we'd put El Paso Gas' counsel on notice of our representation, meaning that they ought not to have been able to get their state-court TRO without our our first being notified and given an opportunity to appear at least by telephone to contest it. (Their lawyers kind of ignored those ethical rules; funny how situational ethics may become when your largest client is at risk of being swallowed by another company.) And we had frankly expected that El Paso Gas wouldn't be able to get a hearing on their TRO until after Christmas anyway. But instead, suddenly the holidays were working against us.

Thus it came to pass that on Christmas Eve afternoon, I found myself standing on the tarmac outside a private aviation hangar at Houston's Hobby Airport with one of my mentors, the late and truly great John L. Jeffers, Jr. (of whom I've written before, at greatest length here in a post about his triumphs in Pennzoil v. Texaco). None of the commercial flights could get us to El Paso as quickly as we needed to be there, so John had just used his Amex Gold Card to spot-charter a Lear.

And not very long afterwards, a law clerk for U.S. District Judge Harry L. Hudspeth had unlocked the courthouse doors for us, and then proceeded to usher me and John into Judge Hudspeth's chambers library. Judge Hudspeth sat at the end of the conference table in the center of the room, and standing and sitting all along one side of the table were our opposing counsel — at least a dozen of them, as I recall, both from the local firm and from their New York tender offer defense specialists. John and I sat down opposite, with lots of space to spare. ("Looks like you're one wise man short," cracked one of our opponents in a stage whisper. I think that was one of the New York guys.)

There was no heat on in the building, and the City of El Paso was enduring one of its rare, but occasionally brutal, spells of genuine winter weather, so everyone was wearing their overcoats, and many of us were wearing gloves. I could see the moisture condense from Judge Hudspeth's breath as he said, "So, gentlemen, I've read your emergency papers. Let's talk first about Younger v. Harris abstention." And that was my cue to start talking, because the reason Jeffers had brought me along was to argue all of the procedural issues (including abstention).

A few hours later, John and I were back on the Lear, headed for Houston and home. I think Christmas technically came some time while we were in the air, but we may have flown into it as we changed time zones heading back east. I do recall, vaguely, that there was a surprising amount of cold champagne on such a small jet, but it was all gone by the time we landed: We'd prevailed on our emergency TRO and persuaded Judge Hudspeth to order the state-court judge to back off. El Paso Gas' remaining resistance collapsed during the first week in January 1983, some golden parachutes got ratified, and the hostile tender offer turned into a friendly one (that nevertheless generated a SCOTUS opinion a few years later, Schreiber v. Burlington Northern, Inc., 472 U.S. 1 (1985), with which I had no involvement whatsoever.)

So why — besides the fact that this was one of the quickest, most brutal, and generally coolest and most successful courthouse victories I've ever been associated with in a ginormous case — did this particular war story come to mind?

Because as John was hiring the Lear back in Houston, I'd been on the phone to personnel in the office of the U.S. District Clerk for the Western District of Texas, El Paso Division — which was scheduled to close at noon for the holiday. And I wasn't asking them to "keep the courthouse open." I was asking to arrange an emergency after-hours filing and hearing. It took some persuasion, but I explained how the state-court order was restraining something over $600 million in interstate securities transactions that we believed were protected under federal law, and how the injection of even a few days delay into a tender offer could become outcome-determinative in the marketplace. Eventually, with my arguments being relayed to Judge Hudspeth (probably initially through one of his law clerks at an emergency contact number), in other words, I persuaded them that there was a really good reason why they had to hear us late on Christmas Eve afternoon. Not "life or death," but really important. So they did.

But they didn't keep the whole courthouse open. They didn't need to. Once Judge Hudspeth agreed to hear us, we could have held the hearing anywhere — the El Paso Airport Hilton, the judge's basement recreation room, or on the 50-yard-line of the Sun Bowl. He picked his chambers library, presumably because it was convenient for him, and possibly because it was slightly warmer than the marble-floored courtroom.

*******

So, back to the subject of Michael Richard's emergency application for a stay of execution. I intend to blog further about the merits of the Baze v. Rees case now pending before the SCOTUS. For now, however, let's assume that the grant of certiorari in that case (i.e., the Supreme Court's agreement to hear it) is, by itself, a strong enough reason to justify a temporary freeze on executions here in Texas. That's probably true, although it's not a slam-dunk: The Supreme Court hasn't ordered other states, or even Kentucky, to hold off on lethal executions while Baze is pending, and it's refused to consider many other challenges to lethal injection in the past. But death cases are, indeed, special; stays are sometimes appropriate in them even if there's a low probability of a change in the law, precisely because executions are irreversible.

As Texas Court of Criminal Appeals Judge Cheryl Johnson is quoted as saying, at the very minimum, she "would have accepted the brief for consideration by the court" — on its merits, even if it had been presented after hours and outside normal channels. I'm reasonably sure, in fact, that precisely because the volume of capital convictions and executions has been so much larger in Texas than in any other state, her court probably has more experience in handling emergency applications for stays in capital cases than any other court in the country save, perhaps, for the SCOTUS. And some portion of those will have come outside regular business hours. Indeed, emergency stay applications are so common — not common-place, but common and important — that the judges of the Texas Court of Criminal Appeals have apparently pre-assigned those cases to their individual members so that such applications can be reviewed in the first instance by someone already familiar with the background of the case.

So what did happen here?

I don't think we can tell, yet, nor even draw any confident inferences based on the public reporting so far. But if I were forced to make a wager right now, my wager would be that there was a communications mix-up. That someone downstream — either on the defense team, or else in a subordinate role at the Court of Criminal Appeals — didn't get word to Presiding Judge Keller that this inquiry involved an emergency application for a stay of execution in a capital case in which the execution was to take place that very night.

Presiding Judge Keller's quoted explanation only makes sense if she didn't understand herself to be making a judicial ruling, but to have been asked what was basically an administrative question. Someone — and right now, we don't know who — told her "that the defendant had asked us to stay open." The term "the defendant" can refer to a side generically; it's unclear whether Judge Keller was told, or otherwise knew, who this defendant was, or that he was a capital murder defendant.

And more significantly, "asked [the court] to stay open" is not a phrase I would have expected to be used in connection with an emergency application for a stay of execution. Rather, it's the kind of thing I'd expect someone to use if the speaker were not familiar with the procedural lingo here — perhaps the kind of thing that might be asked, innocently and in good faith, but with tragic consequences, by a paralegal or clerk or secretary or volunteer who'd been tasked by a harried lawyer to "contact the Court of Criminal Appeals and see if we can file after 5:00 o'clock, dammit, we're not going to have the computer glitch fixed before then." It's easy for me to imagine someone on the defense team, acting under incredible time pressures, making that kind of verbal fumble out of inexperience.

But if that phrase were heard by a judge who didn't know that it was from a capital case with an execution set for that night, that judge might well think: "Oh well, sounds like someone's going to be missing a filing deadline, looks like we'll have to be considering a motion to excuse that after the fact in a few days; for their sake, I hope they have a good excuse, but if they're not giving us one now, there's no good reason for me to keep the whole courthouse open and the whole staff here." Because this court, like all trial and appellate courts, deals with blown deadlines all the time; some have big consequences, but most don't.

In short, if it's a life or death situation, most judges would expect that when they ask "Why keep the courthouse open?", someone would say, "Because this is an application to stay an execution that's going to happen tonight, and it's quite literally a life or death situation!"

*******

One of the commenters at TalkLeft (who already had a low opinion of Presiding Judge Keller) thinks that a communications snafu somewhere downstream of Presiding Judge Keller wouldn't explain the quotes from the other judges. About that, I replied:

The other judges' comments certainly indicate dismay and anger.  You're inferring, though, that it's directed at Presiding Judge Keller.  Maybe it is.  Or maybe they're expressing their frustration over a communications breakdown that's attributable to someone else.  I don't think you can tell that from what's been reported so far.

....

Judge Johnson is quoted as saying: "And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings." Well, yeah, but ... asked by whom? Asked by Presiding Judge Keller? Asked by someone downstream in the clerk's staff? Or asked by Richard's lawyers?

What I actually find more troubling than the quotes from the other judges is the obscure involvement of "the court's general counsel, Edward Marty, who had consulted with Keller on the request." How did he get in this loop, unless he happened to be who answered the phone to begin with?

*******

Maybe in refusing to jump to the conclusion obviously intended by the American-Statesman writer, I'm putting too much weight on how odd "keep the courthouse open" sounds to my jaded ear. If it indeed turns out that Presiding Judge Keller's refusal of the request to "keep the courthouse open" was made by her with full appreciation of the fact that it would effectively block an after-hours emergency stay application for an execution scheduled for that night, then I, too, will join DRJ and Jeralyn in being appalled, shocked, and dismayed.

But Presiding Judge Keller has been on the Texas Court of Criminal Appeals since 1994. I've got to think she's considered many, many dozens of emergency stay applications outside of regular court hours in the past. Death penalty opponents who paint that court as being populated by ghouls and demons are, quite simply, full of crap; you may not agree with its results, but they are in business to render justice as they understand that term based on their own precedents and those from the SCOTUS. Why, after all of these years, would she pick the day of a potentially monumental SCOTUS cert grant to gratuitously slam the door in a stay applicant's face?

I want to know more. But for now, I'm unwilling to jump to the single one of several possible explanations for this which presumes either bad faith or incompetence on the part of this or, frankly, any other judge.

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UPDATE (Fri Oct 5 @ 5:00pm): Today's Houston Chronicle has a very interesting follow-up story that nevertheless leaves unanswered many of the basic factual questions that I think must be addressed before one can be confident that one has an understanding of what actually happened with the Richard stay application — much less why those things happened, who was responsible, and in what degree. The citizen-journalist bug having bitten me again, I've emailed University of Houston Law Professor David Dow with a request for a telephone or email interview, and I'll certainly post again if he gives me a favorable reply.