Texas judge who closed court to condemned man’s appeal to testify at ethics trial

SAN ANTONIO — A Texas judge who closed her court before a death row inmate could file an appeal plans to testify at the ethics trial where she faces charges that could end her career.

Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, is on trial herself nearly two years after refusing to keep the court open past 5 p.m. on Sept. 25, 2007, with Michael Wayne Richard’s execution imminent and his lawyers scrambling to file an appeal.

Charged with five counts of judicial misconduct, Keller sat quietly at the defense table Monday, only standing to acknowledge that she planned to testify. She could take the stand as early as Tuesday.

State investigators opened the special hearing by accusing Keller of “willfully” circumventing protocol by ordering the court closed at the normal hour. Her attorney said Keller was simply referring to the time the building closed, and that another judge inside also may have known about the pending appeal.

In the nation’s busiest death-penalty state, where Keller has been mocked by critics as “Sharon Killer” for her tough-on-crime reputation, the day began with capital punishment opponents in the gallery and Richard’s family members arriving toward the end.

“When the government has a death penalty, it is essential that there be not the perception but the reality that it is administered error-free,“ said Mike McKetta, the lead lawyer for the state Commission on Judicial Conduct.

Richard, who was condemned for the 1986 rape and murder of a Houston-area nurse, never had his appeal reach the courthouse that day and was executed hours later.

A Republican who has served on the court since 1994, Keller is the highest-ranking judge in Texas to be put on trial by the commission.

On the morning of Richard’s execution, the U.S. Supreme Court had agreed to review a Kentucky case over whether a three-drug combination used in executions — the same lethal cocktail used in Texas — caused unconstitutional pain and suffering. Richard’s lawyers were preparing an appeal on those grounds.

That Keller told a staffer to close the court at 5 p.m. that night is not in doubt. The issue is exactly what she meant.

Her attorney, Chip Babcock, said Keller was answering what amounted to an administrative question about the business hours of the building. He said it was not about the judges who were working inside and waiting for the expected appeal.

“This whole case is about the confusion between the word ‘court’ and ‘clerk,‘“ Babcock said. “There is no question the clerk’s office closes at 5. That does not mean there are not after-hours filings.“

Abel Acosta, a deputy clerk at the court, testified that he told Richard’s legal team that he would not accept anything past 5 p.m. But he said he didn’t think Keller had shut the door on Richard, since he knew the man’s lawyers could hand an appeal directly to a judge.

Keller’s defense attorneys claimed that Judge Cheryl Johnson, the judge on duty the night of Richard’s execution, perhaps knew that Richard’s attorneys were trying to file an appeal. According to Babcock, court general counsel Ed Marty has said in a deposition that he told Johnson that Richard’s attorneys were running late.

Johnson, the first witness called, denied that conversation took place.

“If I had known that they asked for more time, I would have granted it,“ Johnson said. “It’s an execution.“