By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
"I got a phone call shortly before five and was told the defendant had asked us to stay open," Keller told the Statesman. I asked why, and no reason was given. And I know that that is not what other people have said, but that's the truth. They did not tell us they had computer failure. And given the late request, and with no reason given, I just said, 'We close at five.' I didn't really think of it as a decision so much as a statement."
Keller's explanation to the Statesman is disingenuous at best. Richard's pleadings weren't about a misdemeanor DWI. They were an attempt to stay an execution. She knew that. She also knew that the Supreme Court decision earlier in the morning opened up an avenue for Richard to stay his execution.
The judge also knew her own court's policies at the time. They stated that all communication about an imminent execution should go to the judge assigned to handle last-minute motions on the case. With Richard, that would have been Judge Cheryl Johnson. But Johnson, a Republican jurist whom no one will accuse of being sympathetic to defense lawyers, told the Statesman that Keller never asked her if she would have reviewed Richard's pleadings, even though she was ready to work late that evening.
"I was angry. If I'm in charge of an execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings," Johnson told the paper.
Asked if she would have accepted Richard's brief, she replied, "Sure. I mean, this is a death case."
People who've worked at the Court of Criminal Appeals will tell you that on the day of an execution, it's not business as usual. Judges and clerks are ready for just about everything.
"People turned out the lights and went home on normal days, but on days when it was apparent that a last-minute pleading was coming in on an execution, there was no formal closing time," says Richard Wetzel, who worked as general counsel for the court from 1987 to 2003. "The door might be locked, but court staff and judges were available to process last-minute requests."
In fact, the culture of capital punishment is rife with drama until the moment an inmate is declared dead. A little more than 10 years ago, executions in Texas were held between midnight and sunrise. Wetzel remembers pleadings coming in almost at dawn, when it wasn't entirely clear whether lawyers had beaten the clock.
"I remember when officials at the penitentiary would pull out the almanac and determine the official time of sunrise," Wetzel says.
After they realized they weren't going to be able to file their pleadings with the Court of Criminal Appeals, Richard's lawyers hurried to explore all other ways they could save their client. They asked the governor's office for a stay of execution and were rejected. They also filed one last appeal before the Supreme Court. At 7:30 p.m., the Supreme Court denied Richard's appeal. By 8:23 p.m., he was dead.
Harris County Prosecutor Lynn Hardaway, who handled the state's litigation on the Richard case, says that Dow, Richard's lead lawyer, can't complain about how the Court of Criminal Appeals handled the case. Ultimately, it was the Supreme Court that denied his client a stay of execution.
"He was able to present his motion for a stay of execution with the United States Supreme Court, and he was denied," Hardaway says. "It wasn't like no one heard his request."
But Dow says that in his appeal before the Supreme Court, the Texas Attorney General's Office seized on the fact that he did not file anything that day with the Court of Criminal Appeals. The attorney general argued that the Supreme Court had no jurisdiction to hear Richard's appeal because nothing had been filed in or ruled on by the state's highest criminal court.
Keller's friends can't come up with an explanation for why she closed the clerk's office when she did, but they do try to shift some of the blame to the defense lawyers. Dan Hagood, a Dallas defense attorney who served as Keller's campaign treasurer when she first ran for the bench in 1994, says that Dow could have filed a short, handwritten motion to stay Richard's execution. It never had to come down to a last-minute filing. Hagood adds that even if the clerk's office was closed, Dow could have simply turned his motion over to any of the nine appellate justices on the court, including Keller herself.
"I feel like this is a case where the facts are being bent to blame a judge instead of a lawyer," Hagood says.
But Dow, who has worked on 75 capital cases, says that such criticism reflects a lack of understanding of how the court works.
"I could have presented a short one-page, which would have killed a tree unnecessarily," Dow says. "These are never granted, not once in the history of Texas death-penalty law."
Within a year or two, law students across the country will be studying the legal drama that played out over the last day of Richard's life. Maybe some professors will conclude that Richard's lawyers, though scrambling to meet a very literal deadline, could have pursued other measures with the appellate court once Keller shut the clerk's office down. It could be a good, intricate lesson on the chaotic nature of Death Row appeals.