Trial of Texas judge over death-row appeal ends

[August 21, 2009]  SAN ANTONIO (AP) -- The misconduct trial of a Texas judge who refused to keep her court open for lawyers trying to stop an execution that night ended Thursday with her attorneys insisting she did nothing wrong.

Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, watched from her defense table while her attorney denounced accusations that she closed her court to death-row inmate Michael Wayne Richard as meritless and outrageous.

"Judge Keller didn't close the court to anybody," said Chip Babcock, Keller's attorney. "Michael Richard's lawyers never knocked on the right doors and they gave up."

Mocked as "Sharon Killer" by her detractors, Keller could be removed from the bench if the five judicial misconduct charges against her are upheld. At the heart of the charges is whether Keller denied Richard the ability to file a late appeal in the hours before his Sept. 25, 2007 execution.

Babcock's closing presentation, at times theatrical, was delivered as forcefully as Keller's unrepentant testimony earlier in the trial. He ended by going after those he said helped put the career of the state's highest criminal appeals judge in jeopardy: death-penalty critics.

"They don't like the way she decides death penalty cases and they want to get rid of her. It's pure and simple," he said.

Keller quietly declined comment while leaving the courthouse. The case against her is far from over. The trial amounted to a fact-finding hearing, and the judge who presided over it -- state District Judge David A. Berchelmann -- will now prepare a report to the state Commission on Judicial Conduct.

Drafting the report will likely takes weeks, if not months, and it will then be up to the commission to decide what, if any, punishment Keller will face. She could be censured, removed from the bench or have the charges against her dismissed.

Keller received a phone call at 4:45 p.m. the day of Richard's execution from a court staffer asking if the court would stay open past its normal closing time for Richard's lawyers, who were running late with an appeal.

Twice during the conversation Keller said no. She has testified that Richard's attorneys had other ways to file an appeal, and that she was simply instructing that the court close at 5 p.m. like always.

"She says 'my role was purely administrative.' That there was no violation of execution-day procedures. That 'I never made a decision,'" prosecuting attorney Mike McKetta said during closing statements. "That is not accepting accountability, your honor."

McKetta emphasized several times that Keller "addressed and disposed" of the information given to her: that a last-shot appeal for a man scheduled to be executed within hours needed more time to get to her court.

"The death penalty can be accepted in a civilization only when people can have confidence that it be so carefully administered that it precludes erroneous and premature executions," McKetta said.

Richard was executed for the brutal 1986 rape and slaying of Marguerite Dixon, a Houston-area nurse and mother of seven. Two of Dixon's daughters attended the final day of the trial in support of Keller, who briefly spoke with the two women when they arrived in the courtroom.

Paula and Marijo Dixon said Keller did her job.

"The true victim here was my mother," Marijo Dixon said outside the courtroom. "No one would be here right now if he hadn't done that to her."

Richard, whose family also was on hand for the trial, was twice convicted and failed numerous appeals. But on the morning of his execution, his attorneys saw a window of reprieve when the Supreme Court agreed to review a challenge to Kentucky's three-drug combination used in executions.

Texas uses a similar lethal cocktail. Richard's attorneys prepared an appeal on those grounds but didn't finish before Keller's court closed at 5 p.m. Under court rules, Richard's attorneys still could have filed an appeal directly with a duty judge who remained at the court that night.

[Associated Press; By PAUL J. WEBER]

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