Judge ends day before hearing death row appeal

SAN ANTONIO, TX "We close at 5," Judge Sharon Keller told a court staffer Sept. 25, 2007.

The appeal was never heard, and four hours later, convicted killer Michael Wayne Richard was executed. Now it's Keller who will be before a judge, facing charges that could end her career in a special trial that begins Monday in San Antonio. Denying the rights of a condemned man is among five judicial misconduct charges that Keller, the presiding judge of the Texas Court of Criminal Appeals, is up against.

Nicknamed "Sharon Killer" among critics for a tough-on-crime reputation crafted over the years, Keller is the highest-ranking judge in Texas to be put on trial by the state Commission on Judicial Conduct. The judge overseeing the trial will submit a report to the commission, which could dismiss the charges, issue a censure or suggest Keller be removed from the bench.

Keller, a Republican who has served on the court since 1994, has not spoken publicly since being charged in February. Her attorney, Chip Babcock, said the widely repeated narrative of what happened the day Richard was executed isn't accurate.

"The truth is, the court was never closed to them," Babcock said. "They always had the ability to file."

There's a lot more to the story than late paperwork.

On the morning of Richard's execution, the U.S. Supreme Court agreed to review a Kentucky case over whether unconstitutional pain and suffering was caused by a three-drug combination used in executions -- the same lethal cocktail used in Texas.

Richard's lawyers sprung to work. The high court's decision opened a new window for a reprieve, but Richard's lawyers say the good timing of the Supreme Court case gave way that afternoon to bad luck: computer problems. E-mail failures slowed down drafting an appeal, they said.

The Texas Court of Criminal Appeals, the state's court of last resort for death row inmates, closed at 5 p.m. Richard was represented by the Texas Defender Service, which called the court and asked for more time.

Keller, who had left the court earlier that afternoon to meet a repairman at home, got a phone call from the court around 4:45 p.m. to ask if the clerk's office could stay open late. She said no, and the appeal never made it to the court. Richard was executed at 8:23 p.m.

A week later, Keller told the Austin American-Statesman that she was never given a reason behind the question, so she simply said, "We close at 5." According to depositions in the case provided to The Associated Press, Keller said she never knew Richard's lawyers were having technical issues.

"If there had been some comment about computer problems, I would have started thinking in a different direction," Keller said in a June deposition.

Keller had no right to turn away the appeal even if there was an explanation, said Neal Manne, a lawyer who represents Texas Defender Service, a nonprofit group that represents mostly indigent defendants in capital murder cases.

"Who cares? To me, it doesn't matter if they had computer problems at all," Manne said. "If what Judge Keller did was misconduct, the nature or existence of this computer issue doesn't change that."

The case was widely publicized around the country, and fallout from the Richard case flooded the commission with complaints from lawyers. Newspaper editorials roundly rebuked Keller, and a state lawmaker tried impeaching her.

Keller, 56, is expected to testify during the trial. Her defense will include allegations that Richard's lawyers exaggerated computer problems, and that they should have known an appeal could be given to a judge even if the clerk's office is closed. A duty judge was at the court that night.

The Richard saga energized opponents of capital punishment opponents who saw the controversy as a blow to the legitimacy of executions. Richard was the 405th prisoner executed since 1982 in Texas, the nation's busiest death penalty state.

Richard was executed for 1986 rape and murder of a Houston-area nurse and mother of seven. His last words were "Let's ride. I guess this is it," before becoming the last condemned inmate in 2007 to be put to death anywhere in the country -- the Kentucky challenge effectively halted executions nationwide until the Supreme Court upheld lethal injections the following April.

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