The Blog Formerly Known As Practical Paralegalism
Dorinda “Rindy” Fox and Melisa “Liz” Waters, paralegals employed by Texas Defender Service (TDS), a non-profit legal agency, provided key deposition testimony in a highly charged judiciary misconduct case, In Re: The Honorable Sharon Keller.
A she said-he said dispute over who said what in a series of telephone calls preceding the state’s execution of Michael Richard in 2007 could become a key issue in Texas Court of Criminal Appeals Presiding Judge Sharon Keller’s upcoming hearing on misconduct charges.
The allegations of misconduct arise out of the circumstances surrounding Richard’s execution on September 25, 2007, when Judge Keller did not allow TDS, counsel for Richard, to file a petition for writ of prohibition and a motion for stay of execution, after the U.S. Supreme Court decided to consider the constitutionality of lethal injection on the same date. In simple terms, the main issue is whether Keller improperly closed the court on an execution day.
According to Texas Lawyer, which received copies of their depositions from the judicial conduct committee’s special counsel, Fox and Waters testified about their telephone calls to the Texas Court of Criminal Appeals (CCA) in the four-hour period immediately preceding Richard’s execution. Both paralegals contacted the CCA asking – unsuccessfully – if the court could stay open to accept the pleadings after 5 p.m. due to TDS computer problems and also to ask if the court would accept an electronic filing. Neil Manne, a TDS attorney, told Texas Lawyer that Fox was told by the Court’s chief deputy clerk, Abel Acosta, not to attempt to file the documents at 5:56 p.m.
Keller’s counsel says Acosta denies being told about computer problems. Keller’s counsel may argue at her hearing that TDS either was not having computer problems – or exaggerated them.
Other issues in Keller’s upcoming impeachment trial are whether the CCA had execution-day procedures, even if they had not yet been formalized, in place and if so, whether Keller followed them; whether she failed to make sure her staff complied with execution-day procedures; and whether Keller’s conduct denied Richard access to open courts. Also at issue is whether the attorneys at TDS did their job properly, including whether they could have filed a writ of habeas corpeus in Houston trial court.
There are two polarizing views of the situation: a) that Keller properly closed the court at the appointed time, or b) that when a man’s life is at stake, you make an exception for a reasonable request. Either way, it’s a moot point for Richard, who at best, might have had another eight months to live before the U.S. Supreme Court found that Kentucky’s lethal injection protocol is not unconstitutional, according to legal experts.
From a paralegal perspective, I think most of us that work in litigation have been faced with some extraordinarily pressured situations, especially prior to e-filing, with a 5:00 courthouse deadline looming, and obstacles arising out of our control, including traffic jams and malfunctioning computers or copiers. I can recall a few difficult afternoons when very kindly clerks kept the courthouse open a few minutes later than usual for me. It’s stressful enough when the situation involves someone’s monetary legal remedies in a civil matter; but when it involves a man’s life, I cannot imagine what these two paralegals must have been thinking and feeling when they desperately and unsuccessfully tried to get an extension of time on the evening of an execution.