- The Washington Times - Monday, August 17, 2009

SAN ANTONIO | As lawyers frantically tried to file the last-minute appeal that could have halted the execution of a death-row inmate, the Texas judge who oversaw the only court that could hear it was preparing to shut the doors for the day.

“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 Judge Keller who will be before a judge, facing charges that could end her career in a special trial, which begins Monday in San Antonio. Denying the rights of a condemned man is among five judicial misconduct charges that Judge 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, Judge 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 Judge Keller be removed from the bench.

Judge 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.

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.

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.

Judge Keller, who had left the court earlier that afternoon to meet a repairman at home, got a phone call from the court about 4:45 p.m. to ask whether 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, Judge Keller told the Austin American-Statesman that she was never given a reason behind the question, so she simply said, “We close at 5.”

Judge 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.

The case was widely publicized across the country, and fallout from the Richard case flooded the commission with complaints from lawyers.

Judge 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.

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.”

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