Sharon Keller, the presiding judge of the state's highest criminal court, does not bear the bulk of the blame for the execution of Michael Richard in 2007, according to a review by the State Commission on Judicial Conduct. At issue, whether Keller was guilty of judicial misconduct in her handling of Richard's last minute execution appeal. Richard was put to death after Keller decided not to keep the clerk’s office open for a last-minute appeal from the death row inmate's attorneys.
The special master, District Court Judge David Berchelmann, finds that all parties - including the Texas Defender Service - were partly at fault, and that Keller's "conduct ... was not exemplary of a public servant". But the finding of fact does not recommend she be removed from the bench or any further reprimand "beyond the public humiliation she has surely suffered," writes Special Master Berchelmann.
The special master's findings are used as guide for the State Commission, which will ultimately decide Keller's fate.
The timing of Richard's last-minute appeal was especially key in this case. He was set to be executed the same day the U.S. Supreme Court issued a decision that delayed all executions in the country. It decided to hear Baze v. Rees, which questioned whether lethal injection constituted cruel and unusual punishment. The SCJC review says Richard's execution would have likely been stayed too, but his lawyers had to exhaust the lethal injection argument in state courts first. The claim was never presented to the Texas Court of Criminal Appeals, which Keller leads, after a series of miscommunications between her court and lawyers from the defender service. A key miscommunication had to do with the message about the early closing time.
We've attached the full finding documents for your reading pleasure.