Keller Immune to Justice
By Jordan Smith
According to federal district Judge Lee Yeakel's ruling last week,
Court of Criminal Appeals presiding Judge Sharon Keller enjoys
"judicial immunity," which insulates her from being sued for
violating the civil rights of an executed inmate. "Judicial immunity
is immunity from suit, not just damages, and therefore applies
despite allegations of malice or corruption," Yeakel wrote. And,
indeed, there were plenty of allegations of malice and corruption to
be found in the lawsuit filed last fall by the family of executed
inmate Michael Richard.
On Sept. 25, 2007, Keller closed the courthouse door, blocking
Richard's 11th-hour appeal challenging the constitutionality of the
trichemical lethal injection method. That same day, the U.S. Supreme
Court had said it would review a similar case from Kentucky (Baze v.
Rees), and Richard's attorneys were seeking a stay for their client
pending the outcome of the Baze case. In order to get the Supremes to
consider Richard's appeal, however, the case first had to be
considered by the CCA. The appeal was delayed because his attorneys
had computer problems. They called the clerk to say the appeal would
be late, but Keller refused to accept it: "We close at 5," she said.
This meant, in effect, that Richard was blocked from obtaining a stay
from the Supremes and was instead executed – the only inmate to be
executed in the U.S. after the high court said it would consider the
Baze case. The Supremes ultimately ruled that the trichem injection
method, as used by Kentucky, is constitutional, and thus the death-
house machinery began its endless churning again this summer. Still,
the court did not preclude additional challenges to the method,
especially by a state – read: Texas – that has more experience with
the mechanics of death and thus a fuller record for the court to vet.
At the time the court considered Baze, the state had used the method
just once.
Keller's decision was, apparently, made in a vacuum – although there
were three other judges at the court that evening, she failed to
check with any of them about her decision to shut the doors on
Richard, including Judge Cheryl Johnson, who was actually assigned to
handle the Richard case. Johnson told the Austin American-Statesman
that she was "dismayed" by Keller's decision. In response to Keller's
seemingly unilateral decision to deny an inmate access to the courts,
Richard's widow (and later, his daughter) sued Kel ler, arguing that
the judge had denied Richard's due process rights. "No law or rule
gave ... Keller the authority to close the court to prevent the
Appeal," the suit argued.
Ultimately, Yeakel's ruling did not address that argument. Instead,
he ruled in Keller's favor, dismissing the suit, opining that Rich
ard's widow, Marsha, did not provide adequate facts to support her
allegations and that, ultimately, Keller's position as a judge
offered her near total immunity from any such suit. "A judge's duties
make her particularly vulnerable to lawsuits from vexed litigants, as
she must exercise discretion to make potentially controversial
decisions," Yeakel wrote. "Even grave procedural errors do not
overcome judicial immunity."
And so in the aftermath of her much derided decision, Keller has so
far emerged legally unscathed. Indeed, the status of a complaint
filed with the Texas Commission on Judicial Conduct by Texas Civil
Rights Project Director Jim Harrington and signed on to by more than
a dozen other influential attorneys is also in limbo – Harrington
says that because of the rules of the commission, which keep the
status of such complaints away from the public, he doesn't know if
his complaint is still pending or has been dismissed.
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