San Antonio: As lawyers frantically tried to file the last-minute appeal that could have halted the execution of a death row inmate, the Texas judge who oversaw the only court who could hear it was preparing to shut the doors for the day.
"We close at 5," Judge Sharon Keller told a court staffer on September 25, 2007.
The appeal was never heard, and four hours later, convicted killer Michael Wayne Richard was executed. Now it is Keller who will be before a judge, facing charges that could end her career in a special trial that was set to begin yesterday in San Antonio.
Denying the rights of a condemned man is among five judicial misconduct charges that Keller, the presiding judge of the Texas Court of Criminal Appeals, is up against.
Keller is the highest-ranking judge in Texas to be put on trial by the state Commission on Judicial Conduct. The judge overseeing the trial will submit a report to the commission, which could dismiss the charges, issue a censure or suggest Keller be removed from the bench.
Keller's attorney, Chip Babcock, said the widely repeated narrative of what happened the day Richard was executed is not accurate. "The truth is, the court was never closed to them," Babcock said. "They always had the ability to file." There is a lot more to the story than late paperwork.
On the morning of Richard's execution, the US Supreme Court agreed to review a Kentucky case over whether unconstitutional pain and suffering was caused by a three-drug combination used in executions - the same lethal cocktail used in Texas.
Richard's lawyers sprung to work. E-mail failures slowed down drafting an appeal, they said.
Richard was represented by the Texas Defender Service, which called the Texas court and asked for more time.
Keller got a phone call from the court around 4.45pm to ask if the clerk's office could stay open late. She said no, and the appeal never made it to the court. A week later, Keller told the Austin American-Statesman that she was never given a reason behind the question, so she simply said, "We close at 5".