Daughter of Executed Prisoner Files to Re-open Suit Against Appeals Judge

Texas Civil Rights Project News
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Daughter of inmate wants suit against judge re-opened

Austin American-Statesman

Keller’s testimony in 2 courts cited in plea for reinstatement.

By Chuck Lindell
AMERICAN-STATESMAN STAFF

Claiming that Judge Sharon Keller made contradictory statements to two separate courts, the daughter of executed inmate Michael Richard moved Thursday to reopen a federal lawsuit against the state’s highest criminal judge.

The lawsuit was thrown out last year after Keller argued that she was acting as a judge — and therefore immune from lawsuits — when she declined to keep the state Court of Criminal Appeals open past 5 p.m. to accept a 2007 execution-day appeal from Richard’s lawyers.

But in August, during a special trial on charges that she violated her judicial duties in the Richard case, Keller testified that at the time she was acting in an administrative capacity, not as a judge.

While on the stand, Keller was asked why she didn’t follow the court’s execution-day procedures, which would have required Cheryl Johnson, the judge assigned to handle last-minute appeals from Richard, to field the lawyers’ request for more time.

Keller replied that she considered her response to the request an administrative act instead of a judicial one, thus exempting her from the execution-day procedures.

Based on that testimony, the Texas Civil Rights Project on Thursday asked U.S. Judge Lee Yeakel to reinstate the lawsuit.

Judges acting in their administrative capacity are not immune from lawsuits, said Jim Harrington, director of the civil rights group.

"You can’t have it both ways. You can’t argue out of one side of your mouth in federal court," then argue differently in another court, Harrington said. "This is a judge who understands the law, who understands how important it is to plead correctly … and to say things correctly when under oath.

"I think this speaks volumes about her integrity and her truthfulness."

Efforts to reach Keller’s lawyer, Chip Babcock, were unsuccessful Thursday.

The federal lawsuit, filed in 2007 by Marsha Richard, the executed man’s wife, accuses Keller of violating Richard’s constitutional rights of due process and access to the courts. The suit, later joined by Richard’s daughter, Doreen Anderson of Crockett, seeks an unspecified amount of money in damages. The Texas Civil Rights Project is working on behalf of Anderson.

"Judges are supposed to uphold the law and do the right thing, regardless of how they feel about something," said Anderson, 31. "If you are put in that position to do the right thing, then you should do the right thing."

Keller is awaiting the results of her August trial. State District Judge David Berchelmann Jr., who presided over the four-day trial, is to provide his findings to the Commission on Judicial Conduct, which has three options: exonerate Keller, issue a public reprimand or recommend that she be removed from office.

A removal recommendation would be reviewed by a specially created seven-judge panel.

Berchelmann has no deadline to provide his findings.

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