austindefender

Criminal defense in Austin Texas.

“We close at 5:00”

Posted By on January 31, 2010

Judge Berchelmann issued his findings the other day in the ethics complaint against Judge Keller.  (This is the case where Keller stopped Michael Richard’s lawyers from filing a last-minute appeal to stop his execution: “We close at 5:00,” she said.)

He says Judge Keller is mostly blameless.  Instead, he finds fault with Richard’s lawyers.  “TDS (Texas Defender Services)” he says, “has only itself to blame” for Richard’s execution.

What’s surprising about Berchelmann’s judgment is that it’s an answer to a question that wasn’t asked.

The question that was asked was whether Judge Keller followed the rules that applied to judges.  By finding the lawyers responsible for Richard’s death he’s answering a different question: “Was TDS responsible for Richard’s death?”

That judges are supposed to answer the question that is presented is a basic rule of law.   (One of the reasons for that rule is illustrated by this case: Not knowing they’d been charged with incompetence, Richard’s lawyers could not present a defense.)

When told Richard’s lawyers were trying to file an appeal after 5:00, Keller had two choices.  She could say, “Judge Johnson is the assigned judge to hear appeals after 5:00,” or she could say, “Tell them we close at 5:00.”

One is consistent with being an impartial (rather than pro-prosecution) judge.

When asked, Keller said she’d do it all over again.

Berchelmann says he does not believe her:

“Although she says that if she could do it all over again she would not change any of her actions, this cannot be true.  Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice.”

Berchelmann may not believe her, but I do.


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