Fifteen Eighty Four

Academic perspectives from Cambridge University Press


The Duty of a Death Case Judge

Stephen Sheppard

Sharon Keller, Troy Davis, and the Duty of a Death Case Judge

Steve Sheppard (from FindLaw), Monday, August 24

No obligation of a judge is more awful than to rule on who should live and who should die at the hands of the state. No process more defines the American legal system: We put our worst criminals to death, but we do so while protecting rights under the law. Though the jury’s sentence is the fulcrum of every decision, no person may die without a legislative decree that their conduct deserves death, and without judicial approval of the conviction and the sentence.

Many judges grow weary and callous from the endless claims of America’s three thousand death-row inmates, of whom a dozen are yet scheduled to die in 2009. In 1996, Congress, angry with the slow pace and high costs of execution, passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”), creating new technical rules to speed the guilty on their way.

Yet the law, the judges, and especially the people in whose name all this is done, can never allow a single case to escape the most perfect scrutiny possible, or the law jeopardizes its deepest claims to authority and trust. We—officials and citizens—have a duty to ensure that the protections of the laws are secure, and that we execute only the person guilty of the crime accused. Otherwise we violate the American commitment to freedom, truth, and the rule of law.

Two cases last week illuminated the dangers of callousness, of technical limits to scrutiny, and of speed in itself. At the same time, their stories offer hope that the judicial duty of scrutiny and the commitment to truth and freedom persist in U.S. law.

Story One: Michael Richard and Sharon Keller

On September 25, 2007, Michael Wayne Richard said, “I would like for my family to take care of each other. I love you Angel, Let’s ride. I guess this is it,” and then died by lethal injection. Few Texans would mourn him; Richard was executed for his confessed rape and murder of nurse Marguerite Dixon, after which he traded the murder weapon for cocaine.

Texas has executed 34 people since then. Three hundred and thirty-eight sit on death row, with 10 more scheduled to die this year.

So it is unusual that Texas will hold a hearing concerning Richard’s case this week. Moreover, the hearing is all the stranger because the defendant is Richard’s judge. Or, not his judge; that is the problem.

The problem arises because on September 25, 2007, the United States Supreme Court agreed to hear Baze v. Rees, a challenge, coming from Kentucky, to the constitutionality of the same execution procedure that was and is also used in Texas. Throughout the United States, every execution was stayed, until the Court ruled on April 16, 2008, that Kentucky’s procedures did not amount to cruel and unusual punishment and thus could continue to be employed. The lone exception to the stays – the only U.S. execution that occurred while Baze was before the Court – was the killing of Michael Richard that day.

On the day of Richard’s death, his lawyers prepared a motion for a stay based on the Baze opinion, which they had received that same day. But the motion was never heard in the Texas Court of Criminal Appeals, because the brief was not ready by 5:00 p.m.

The brief’s lateness would not, usually, have been a problem because the court can grant an extension of time. But Judge Sharon Keller, the Presiding Judge of the Texas Court of Criminal Appeals, apparently refused the extension. For Judge Keller, the office closes at 5:00. If the lawyer is late, so is the client.

Even in Texas, this was enough to make folks do a double-take, and last week, Judge Keller was before a special master of the Texas Commission on Judicial Conduct, whose initial investigation led to charges of misconduct against the judge. Judge Keller argues that she was not required to grant an extension and says that, rather than regretting her conduct, she would deny the stay again if presented with similar circumstances.

The key to Keller’s case, now, is whether a lawyer then could appeal directly to a judge after hours, or had to first file the papers with the clerk and then appeal. Judge Keller now argues that Richard’s lawyers could have called another judge at home after hours. Though she did not tell Richard’s lawyer this, she now says that when she told the lawyers they were too late, she meant only that the clerk’s office had closed; the court stayed open. However, the rules of the court were then unwritten, and her denial was broad enough that Richard’s lawyers thought the door to the court was closed to them at 5 p.m. Richard was put to death that night.

Story Two: Troy Davis and John Paul Stevens Click here to continue >>

About The Author

Stephen Sheppard

Stephen Sheppard is the author of I Do Solemnly Swear: The Moral Obligations of Legal Officials (2009). Sheppard is the William Enfield Professor of Law at the University of Arkans...

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