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Texas Meets a Death Penalty It Dislikes

How dreadful it is when the right judge judges wrong.
— Sophocles, Antigone

It’s hard to believe it’s Texas. There is no state in the United States that has proved itself a better friend to the death penalty. It has executed 431 people since the death penalty regained respectability in American culture in 1976, 137 of them while George Bush was its governor. (Mr. Bush said that all those executed while he was governor were guilty which distinguishes Texas from other states were occasional mistakes have occurred.)

There have been countless examples of death penalty justice in Texas. Among the favorites is the notion subscribed to by some Texas courts, that the mere fact that a defendant in a death penalty case is represented by a lawyer who occasionally naps during the proceedings does not affect the defendant’s right to be represented by counsel. One such defendant was George McFarland who, while being tried for a robbery-killing, was represented by a lawyer described by court room witnesses as being in a “deep sleep” for much of the trial. The lawyer, John Benn, explained that that he was 72 years old and “I customarily take a short nap in the afternoon.” The trial judge observed that the requirement that a defendant be furnished counsel did not mean the lawyer had to be awake during the proceedings. The Texas Court of Criminal Appeals agreed with that result even suggesting that the fact that the co-counsel in the case did not persist in trying to awaken the sleeping lead counsel was “reasonable trial strategy.” Judge Charles Baird, a member of that court at the time described his colleagues’ conclusion that this was “reasonable trial strategy” as ridiculous.

Calvin Burdine was another victim of the “sleeping counsel” defense. In his appeal, based on ineffective assistance of somnambulant counsel, not only the Texas Court of Criminal Appeals thought nothing wrong with that kind of representation but Edith Jones, writing for the 5th Circuit Court of Appeals said: “We cannot determine whether [defense counsel] slept during a critical stage of Burdine’s trial.”

The foregoing serves to make all the more significant a recent turn of events in Texas that suggests even in that state, some kinds of conduct are unacceptable. The conduct in question pertains to the chief judge of the Court of Criminal Appeals, Sharon Keller. The conduct occurred in connection with the execution of Michael Richard on September 25, 2007. Mr. Richard’s timely execution was an affirmation of Judge Keller’s belief that court house hours were more important than human life.


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Michael Richard’s execution by lethal injection was scheduled to take place on September 25, 2007. On the morning of that day the U.S. Supreme Court agreed to hear a case from Kentucky that involved the question of whether the cocktail that was used in lethal injections constituted cruel and inhuman punishment because of the pain inflicted by one of the ingredients in the cocktail. (The particular drug was one whose use in euthanizing animals had been banned by the Kentucky legislature because of the pain it inflicted on animals. The Supreme Court of the United States held in 2008 that there was nothing wrong with the cocktail and it continues to be used in Kentucky and other states when dealing death to humans. It remains banned in Kentucky for use in euthanizing animals.)

When Mr. Richard’s lawyers learned of the Supreme Court’s willingness to consider this question they decided to seek a postponement of his execution in hopes of riding on the coattails of the Kentucky case. Because of computer failure, however, they were unable to get the necessary papers filed with the Court of Criminal Appeals in Texas before 5 PM, the official court closing time. Judge Keller was notified that the papers would be ready to be filed shortly after 5 PM but Judge Keller permitted the court to close promptly at 5 PM. Mr. Richard’s life closed at 8:23 PM. Here’s the surprise.

On February 20, 2009 it was announced that the Texas Commission on Judicial Conduct has started an investigation into Judge Keller’s refusal to keep the court open for an extra few minutes when she knew a death row appeal was imminent. The investigation is unusual in that normally such investigations involve alleged criminal offenses by the judge being investigated or other egregious conduct. It is unusual to have an investigation because a judge refused to keep the court house open a few extra minutes to permit an appeal to be filed. In its inquiry the commission found that Judge Keller knew it had “been common in the past to receive late pleadings on execution days after the clerk’s office closed” and that the designated judge should “remain available after hours to receive last-minute communications regarding the scheduled execution.”

A trial will be conducted at the conclusion of which Judge Keller may avoid punishment, be censured or be removed from office. No matter the outcome, it’s nice that Texas noticed.

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Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at For political commentary see his web page at

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