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Keller Hearings

Day One | Day Two | Day Three | Day Four

Day One
Keller Hearings Day One

Jessica S. Phipps of The Ackerman Law Firm, PLLC

On September 25, 2007, the United States Supreme Court granted review of a Kentucky decision that challenged whether the lethal injection procedure in Kentucky violated the 8th Amendment’s prohibition against cruel and unusual punishment. Between that date and the Supreme Court’s final decision on the matter seven months later, only one convicted felon on death row was executed. That man was Michael Wayne Richard.

Opening Statements
The attorney for the Commission, John J. (Mike) McKetta, emphasized in his opening statement that the purpose of today’s hearing was not to come to any political or moral conclusion regarding the death penalty, but to answer the simple question: what happened in this case? Was there an intentional circumvention of the Court of Criminal Appeals’ execution day protocol? If so, what did Judge Sharon Keller know at the time she acted?
Charles Babcock of Jackson Walker, LLP represented Judge Keller. In his opening statement, he set forth five main arguments to be addressed during the hearing:

The examiner and special counsel ask that Judge Keller be removed from office for saying three words: “No,” “Why” and “No.”
Judge Keller exercised authority delegated to her by the legislature not to keep the Clerk’s office open beyond 5:00 p.m.
Judge Keller did not prevent a late filing.
Judge Keller did not bring discredit on the judiciary despite the news articles cited by the Commission which are based on a largely false story concocted by David Dow and Texas Defender Service and reported to the media and to the public.
Judge Keller is an honorable, competent, and popularly elected judge who believes in and follows the rule of law.

Witness #1: Judge Cheryl Johnson
Judge Cheryl Johnson was the first witness. On direct examination, McKetta discussed the Texas Criminal Court of Appeals’ execution day protocol. The protocol requires that on an execution day, a single judge is assigned to receive all communications regarding that particular case. McKetta referred specifically to the following paragraph, which was enlarged for all to see on a foam board:
All communications regarding the scheduled execution shall first be referred to the assigned
judge. The term ‘communications’ includes pleadings, telephone calls, faxes, e-mails, and
any other means of communication with the Court. The assigned judge may call a special conference or gather votes by telephone, e-mail, fax, or other form of communication.

Judge Johnson testified that the protocol is in place to “ensure that someone is in control” on execution day On September 25, 2007, Judge Johnson was the assigned judge for Michael Wayne Richard’s case. Mr. Richard’s execution was scheduled for 6:00 p.m. that evening. In preparation for her duties as assigned judge, Judge Johnson reviewed Richard’s case, examined the pleadings in the file, and familiarized herself with the status of the case.
                That day, the United States Supreme Court granted review of a claim that lethal injection, as it was practiced in Kentucky, was cruel and unusual punishment, in violation of the 8th Amendment. Ed Marty, general counsel for the Court of Criminal Appeals (CCA) sent all nine judges an e-mail bringing their attention to the Supreme Court’s decision. The decision struck Judge Johnson as important because the lethal injection procedure in Kentucky is similar to that in Texas. The e-mail specifically mentioned the possibility that Richard’s attorneys may try to stay his execution based on the Supreme Court’s decision. Accordingly, Judge Johnson was willing and ready to wait after hours for any such filing. To prepare herself for the expected filing, she downloaded and printed out the Kentucky decision.
Johnson further testified that according to the execution day protocol, any communication that day regarding Richard’s case should have been directed first to the assigned judge This is so that the assigned judge would have “command of what was going on” and “one person would have the whole story.”
At 2:40 p.m. on September 25th, all nine judges were sent an e-mail reporting that Richard’s attorneys were planning on filing a “writ of prohibition and subsequent application.” Johnson recalled that Ed Marty came into her office just before 5:00 p.m. that evening to report that nothing had come in yet. Despite the fact that nothing had been filed, Johnson stayed at the court after 5:00 p.m., believing that to be part of her duties as assigned judge.
Johnson testified that around 5:30 p.m., she, Judge Price, and Judge Womack were talking in the hallway about their surprise that no new pleadings had been filed in the Richard case. She testified that Ed Marty was standing approximately 5-6 feet away from the judges and was in earshot, but not directly participating in the conversation. Although he said nothing, Judge Johnson testified that she noticed that Marty was smiling in a nervous manner.
Johnson left the court just before 6:00 p.m., but ensured that she would be available by telephone should anything come up in the Richard case. Her research attorney stayed on after 6:00 p.m., although she was not sure what time he left the office that evening.
Johnson testified that on September 25, 2007 she never learned from any source about any communication from the Texas Defender Service (TDS) regarding Richard’s case. Not from the clerk’s office, nor from Judge Keller. She testified that as the assigned judge, if she had learned that TDS wished to make a late filing, she would have granted their request because “this is an execution and there is no tomorrow.”
On September 26, 2007, there was a conference among several CCA judges. Judge Keller was present during this meeting. The judges were expressing their surprise that there had been no late filing in the Richard case. Judge Cochran asked hypothetically whether the judges would have accepted a filing after 5:00 p.m., had one been attempted. Judges Cochran, Price, and Johnson said they would have accepted such a filing. Judge Keller said nothing.
Johnson testified that when she later learned that an inquiry had in fact been made she was “upset by it.” She was “frustrated that protocol had not been followed.” She stated that the call should have been directed to her. She stated that the violation of protocol “disappointed” her and the fact that Keller later failed to mention it to her was “even more upsetting.”
Johnson testified that the events of September 25th were followed by a public outcry. In October, the judges began receiving mass form e-mails suggesting that Keller should resign.
Johnson was adamant that Ed Marty did not inform her about any phone calls from TDS. She stated that had Marty informed her of the phone calls, the papers could have been filed. She testified that her only contact with Marty was when he came to her chambers around 4:40 to inform her that nothing had come in yet.
On cross-examination, Charles Babcock argued that TDS had the ability to file after 5:00 on September 25th pursuant to Rule 9.2(a) of the Rules of Appellate Procedure. He emphasized that the Court has accepted late pleadings under Rule 9.2(a) in the past. He went on to point out that TDS had, in the past, filed late pleadings under the rule, and that specifically Greg Wiercioch, Richard’s lead attorney, had taken advantage of the rule in the past. Babcock argued that the phone number in Johnson’s chambers is listed in the Austin yellow pages, and was thus readily available to TDS, should they have looked for it. He pointed out that it was the Court’s policy to answer the phone after 5:00 p.m. on an execution night and that Johnson’s research attorney was present at least until shortly after 6:00 p.m. to answer TDS’ call.
Johnson agreed with Babcock that a Judge should not be disciplined simply because of a media outcry. Babcock pointed out that in the past, Judge Johnson herself had been criticized in the media by Greg Wiercioch, and that Judge Johnson had called the allegations false. Babcock also made reference to the Swearinger case, in which Judge Johnson facilitated a late filing even though she was not the assigned Judge. Babcock noted that Johnson had not told Judge Womack (the assigned Judge in that case) about her actions, even though protocol would have required that she do so.
Babcock asked Judge Johnson why she had not asked Ed Marty at the end of the day whether anyone had called regarding the Richard case. Johnson answered that she assumed Marty would have told her. Babcock then asked wouldn’t it be fair for Judge Keller to make a similar assumption that Marty would have told Judge Johnson about his communication with Keller and TDS. She answered that the only valid protocol would have been for Judge Keller to tell Marty to direct the call to the assigned judge.
Babcock then had Johnson confirm that Judge Keller had the discretion whether to keep the clerk’s office open beyond 5:00 p.m. and that the custom of the CCA was to close the clerk’s office at the regular time.
Babcock crossed Johnson on her testimony that Marty had been within earshot of the Judge’s conversation about a late filing yet still neglected to mention that he had received a call. Babcock handed one end of a measuring tape to Johnson and began to step away from the witness stand, asking her to stop him when he was about the distance Marty was from the Judges in the hallway. Johnson stopped Babcock at 5’8”. Babcock asked with an incredulous air why Marty would be standing motionless and mute in a hallway just a few feet away from the judges for a full 5 minutes with no apparent purpose.
On redirect, McKetta established that when Judge Johnson facilitated a late filing in the Swearinger case, it was four days before the execution, and thus the protocol with regard to the assigned judge was not yet in effect (it would only have been in effect on the execution day).   Additionally, he pointed out that less than one week after Richard’s execution, Johnson made a memorandum of her recollection of the events of September 25, 2009, in which she noted that Marty did in fact stand by mute as the judges discussed their surprise at the lack of a late filing.
On re-cross, Babcock asked: “Can you tell us how it is possible for Judge Keller to close the Court when you’re still there, ready, willing, and able to accept pleadings?” Johnson indicated that she could not. Babcock continued: “Judge Keller couldn’t have, if she wanted to, block access to you?”   Judge Johnson replied: “No.”
Witness #2: Dorinda “Rindy” Fox
                Fox is a paralegal for TDS. She testified that at 4:30 p.m. on September 25th she was at the doctor’s office when she got a call from Liz Waters (also a paralegal at TDS). Waters called to say that filing was coming over to Austin from Houston, but that they were experiencing some computer problems. Waters asked Fox to call Abel Acosta, clerk at the CCA, to let him know they would be late. Waters’ call came at approximately 4:35. Fox called Acosta at 4:40. She didn’t recall the conversation verbatim, but stated that she told Acosta they were running late due to some kind of computer problems. She told Acosta that they would like to file late. Acosta responded that he would have to check with someone and call her back. Fox was surprised by this reaction, as she had known Acosta since 2004 and had filed late many times without incident. Acosta returned Fox’s call at 4:48 p.m. He said that he was told to tell Fox that “we close at 5:00 p.m.” Fox asked Acosta to look at their clock and tell her what time they had. He said 4:48. She asked him whether he realized that only gave TDS 12 minutes to file, and asked if there was someone else she could talk to and whether he had told them that TDS was having problems. Acosta said something to the effect of “I’ll call you if anything changes.” Fox then called Houston for David Dowd. She got a lawyer named Alma on the phone instead. She told Alma that Acosta was reporting that TDS could not file.
                Fox testified that she spoke to Acosta again at 5:45. She told him she had the documents in hand ready to file and was on her way to the CCA. Acosta told her not to bother; they were closed.   Fox then asked Acosta about the possibility of electronic filing, and he said that the Court did not allow electronic filing. She asked if anyone was there and Acosta said no. She responded that obviously someone was there because Acosta had answered the phone. Acosta then said something to the effect of just being the messenger.
                On cross-examination, Babcock established that Fox had not had any paralegal training nor had she obtained a paralegal certificate. He pointed out that Fox only called Acosta, and never attempted to call Marty. Acosta could not say whether computers in either the Houston or Austin office were having any difficulty actually drafting documents. Fox said that Waters had not gone into detail regarding the computer problems. Fox admitted that despite what was reported in the national media, they weren’t ready to file at 5:20 or 5:30 p.m.   They were not ready to file until 5:56 p.m. She also reported that despite what was reported in the media, the pleading was a total of 31 pages, not 100 pages.
Witness #3: Abel Acosta
                Acosta has worked at the CCA for 19 years. He is the chief deputy clerk and one of the primary people responsible for death penalty filings. On September 25, 2007, Acosta worked until about 7:00 p.m. He testified that it would not be a hardship on him personally to have accepted late filings that evening.
                At 4:40 p.m. Fox called Acosta. Acosta testified that Fox asked what time the office closed and if they would stay open later. Acosta said he would call Fox back and then called Marty. He heard back from Marty and then relayed the message to Fox, saying: “He said that the Court wasn’t going to accept something after 5:00. He said that the presiding judge said that we close at 5:00.”
                Acosta stated that in his earlier testimony he often used the words “court” and “clerk” interchangeably, meaning he could have either said the “court” was closed or the “clerk” was closed. He testified that he generally views those terms as interchangeable.
                Acosta testified that he had no personal reason to deny Fox the opportunity to come file after 5:00 p.m. He merely thought the decision had been made and that they simply wouldn’t be accepting filing after 5:00. He felt that he could not go behind Keller’s back to another judge.
                Acosta did not recall being told that TDS was having computer problems. He only recalled being told that they needed additional time to file. He did recall learning, however, that papers from Houston had not yet made it to Austin, causing TDS delay in filing.
                Acosta testified that Liz Waters called him sometime after 5:00 that evening asking whether she could fax or e-mail the filing to the court. Acosta said no because at that time the CCA did not accept filing via fax or e-mail. Acosta did not recall Fox calling back at 5:56 p.m. He did recall Fox asking whether she could at least bring the filings to the security guard, and he responded that he did not know how that would do any good.
                Although Acosta knew that there was an assigned judge on execution days, that was the extent of his familiarity with the execution day protocol. He testified that he would not have given out the name of the assigned judge even if he knew who that was because of the confidential nature of that information. He stated that his only communication is with general counsel.
                On cross examination, Babcock established that it is common knowledge among appellate attorneys that under Rule 9.2, filings can be made up until the execution itself. Acosta testified that he does not believe that Sharon Keller blocked access to the Court. He also testified that he is certain that neither Fox nor Waters ever mentioned computer problems when the spoke about late filing. Finally Babcock asked why Acosta didn’t just mention Rule 9.2 to Fox or Waters, or at least direct them to call either general counsel or a judge’s chambers. Acosta responded that he is not supposed to give legal advice and has been advised by the clerk not to be proactive.
Tomorrow at 10:00 a.m., the Commission calls their next witness, Liz Waters.

Day Two
Keller Hearings Day Two

Jessica S. Phipps of The Ackerman Law Firm, PLLC
Witness #4: Melissa “Liz” Waters
                The courtroom was over half empty (or should I be optimistic and say it was almost half full) this morning when Michelle Alcala began Liz Waters’ direct examination. Waters has been a paralegal in TDS’ Austin office for four years. She has 14 years of experience as a paralegal. Her duties include assisting Rindy Fox in filing pleadings with the CCA. Waters testified that any questions she may have regarding filings with the CCA would be directed to Abel Acosta. She stated that she has filed late with Acosta in the past.
                On September 25, 2007, Waters became aware via a conversation with Rindy Fox that the Court would not accept filings after 5:00 p.m. Fox had called Dow to let him know that the court would not accept a late filing, and Dow in turn told Waters to call Acosta and double-check with him. Waters called Acosta between 5:07 and 5:10 p.m. to clarify that the Court would not accept a late filing as they had done in the past. Waters also inquired about the possibility of a fax or e-mail filing. Acosta said he had been told that the Court would close at 5:00 p.m. and would not accept late filing. Waters hung up and called Dow to relay this information to him. She testified that Dow reacted with “surprise and disbelief.” Dow told Waters to continue printing and preparing the documents for filing.
                The documents were ready for filing between 5:30 and 5:56 p.m. Fox called Acosta in Waters’ presence and the answer was still no.
                On cross-examination, Babcock pointed out that Waters’ paralegal education was obtained at an out-of-state community college and that her experience in the state of Texas was only 4 years. He elicited testimony that Waters was trained in filing procedures and knew that the clerk’s office generally closes at 5:00 p.m. Waters, when asked, could not name from memory a specific late filing that she knew had been accepted in the past. She also stated that she had never personally filed late, but that she had assisted Fox in doing so.
                Babcock emphasized that today Waters testified that Fox had told her that the court was closed, as opposed to the clerk’s office being closed. He then played a portion of her deposition testimony in an attempt to impeach her testimony. In the deposition, Waters was asked whether she was told that the clerk’s office wouldn’t stay open, to which she replied in the affirmative.
                During cross-examination, Babcock referred to the following timeline:
4:29 p.m. E-mail was working (as demonstrated by e-mails that were produced in this case).
4:30 p.m. Got first call from Dow saying: “Working on something. Expect it shortly.”
4:30-4:39 p.m. Called Fox
4:40 p.m. Fox calls Acosta
4:45 p.m. Dow finished final edits on writ of prohibition.
4:51 p.m. Started getting the first pleadings via e-mail.

Waters responded by saying that between 4:40 and 4:45 she received calls from Alma Lagarda at the Houston TDS office saying they were trying to send e-mails, but Waters had not yet received anything. Lagarda then told Waters that they were experiencing e-mail problems. Waters conceded that TDS Austin was not having any e-mail problems, and that they shared the same internet service provider as TDS Houston.
Babcock displayed several e-mails, which were meant to show that the TDS e-mail was working at the following times: 4:51, 4:55, 5:06, 5:10, 5:11, 5:12, 5:19, 5:21, and 5:52.
Babcock asked whether TDS has in the past filed with CCA’s general counsel after 5:00 p.m., and Waters could not recall whether they had. Babcock then asked whether Waters knew before September 25, 2007 that the general counsel accepted late filings, and waters responded that she did not. Babcock impeached Waters on this point using her deposition testimony.
Waters testified that she did not know that any one of the nine CCA judges could accept pleadings after 5:00 p.m. She testified that she “didn’t know that there was any other way other than filing it with the clerk’s office.” She also said that Dow never instructed her to try to contact the general counsel or to call the judges’ chambers. To Water’s knowledge, no lawyer with TDS ever tried to call the CCA. After the 5:56 phone call, Waters testified that Fox put the documents away and Waters went home. She never received any further instructions with regard to those filings.
Witness #5: David Dow
                David Dow is a professor at University of Houston Law Center and the litigation director at TDS. He has had some involvement in over 100 death penalty cases, and has extensive experience in last-minute filings in death penalty cases. He has been personally involved in over a dozen cases involving execution day filings.
                On September 25, 2007, Dow was expecting the day’s events to hinge primarily on a pending Atkins claim. (In Atkins v. Virginia, the Supreme Court held that the 8th Amendment prohibits the execution of individuals who are mentally retarded). Dow believes that Richard was mentally retarded and thus immune from execution.
                Prior to September 25, 2007, TDS had ruled out a lethal injection claim in Richard’s case because TDS had been litigating lethal injection (LI) claims for the past 2 ½ years without any success. However, that morning, the United States Supreme Court granted cert. in the Baze case, which altered the TDS’ standpoint on whether an LI claim would be productive in Richard’s case. This was the first time Dow had ever experienced a situation in which there was an applicable grant of certiorari on the morning of an execution. Dow sent out an e-mail to TDS personnel which said, in part, “I was just about to call Mandy and Greg to see whether they want to throw this plate of pasta at the wall.” (Dow was referring to an LI claim in Richard’s case.) Late that morning, there was a conference call at TDS to determine the appropriate next steps.
Dow assigned Alma Lagarda the tasks of preparing a writ of prohibition and a habeas petition. In light of Lagarda’s experience with death penalty cases, Dow “did not have any reservations” about Lagarda’s competency to handle these assignments.
On execution day, Dow went from U of H to the TDS offices at approximately 2:45 p.m. Lagarda was still there working on the documents. Dow received a draft from Lagarda around 3:30 p.m. and began the editing process. At that time, Dow began to experience several computer problems. He attempted to e-mail his changes back to Lagarda but was unable to do so. Other people in the TDS office were also having problems sending and receiving e-mails. Dow then attempted to put the edits on a shared public drive, to which the entire office had access, but was not able to do that either. He asked others in the office if they were having problems with the public drive as well and they said that they were. He then asked Sally, the TDS office administrator to fix the problem. Dow testified: “to me, ‘crash’ means my computer has stopped working” and when that happens more than once, that’s a “series.”
Dow testified that he anticipated the filings to be over 100 pages, including 25 pages of text and roughly 80 pages of exhibits. The decision was made to file the pleadings without exhibits to cut down on the length and thus the number of photocopies required. He asked Lacosta to go back and remove any references to exhibits and the result was a document that was approximately 25-30 pages.
Dow called TDS’ Austin office to see whether they were experiencing similar computer problems and was told they were not. He asked Lagarda to call TDS Austin and tell them about the computer problems and that as a consequence they would be late with their filings.
Dow perceived that e-mail capacity was restored around 4:30 p.m. Later that afternoon, Dow received a report regarding Fox’s communication with Abel Acosta. Dow’s impression of the communication was that Acosta had said the Court was going to be closed at 5:00 and “we can’t file anything after 5:00.” Dow told Fox to call Acosta back and make sure they know that the call was about the Richard case and was regarding a grant of certiorari that very morning. Besides the Richard case, Dow testified that he has never been denied a late filing, nor has he ever heard of anyone else being denied a late filing.
That evening, between 5:30 and 6:00 p.m., the Supreme Court called TDS to inform them that the requested relief on the Atkins claim was denied. TDS then filed a motion for stay of execution with the Supreme Court, informing the Court that they had not been able to file with the CCA, but would do so the next morning. The Supreme Court motion was prepared by TDS, then faxed to Austin, where it was signed and filed by Greg Wiercioch. Soon afterward, the Attorney General’s office filed a response in which the following issue was posed: “Can Richard’s execution be stayed when he has no pending litigation in any lower court….” Dow testified that this was “the winning issue,” and around 7:45 p.m. that night, the U.S. Supreme Court denied the motion for stay.
McKenna asked Dow why he didn’t invoke T.R.A.P. 9.2 and call Judge Johnson. Didn’t Dow, after all, know that Johnson was the assigned judge? Dow responded that he did not remember, know about, or think he could use Rule 9.2 after being told the Court was closed. McKenna then asked why Dow didn’t call CCA’s general counsel, Ed Marty. Dow said he assumed Acosta was talking to somebody, whether that was Marty or Judge Keller, or else he wouldn’t have said “I’ll get back to you.”
When asked why he didn’t simply handwrite a motion for stay, Dow responded: “the Court of Criminal Appeals has held it has no jurisdiction to grant a stay in the absence of any pending litigation.” When an issue arose that there was no motion for leave to file a writ of prohibition (a prerequisite to filing a writ of prohibition), Dow testified that he would not have thought that the absence of a motion for leave would have been fatal to a writ of prohibition. In fact, if CCA had been willing to accept TDS’ filings, it would have taken roughly 10 minutes to do a handwritten motion for leave. In short, it would have been easy to put together a motion for leave had that been the only defect. In a pinch, they could have even handwritten it on the cover of their motion for prohibition.
Throughout an energetic and at times very contentious cross-examination, Babcock sought to establish first that on the date in question, Alma Lacosta had only been licensed to practice law for a short period of time and was a relatively young attorney. Acosta was the only TDS lawyer available in the Houston office that day.
Babcock then went over a timeline of events as follows:
8:05 a.m. Dow arrived at U of H on September 25, 2007 (Dow said that’s when he usually arrives, but he was not sure when he arrived on that day).
9:00 a.m. U.S. Supreme Court grants cert. in Baze case.
10:00 a.m. (approximately) Dow learned of the cert. grant.
11:04 a.m. Dow sent the “plate of pasta” e-mail to a number of colleagues.
12:00 – 12:45 p.m. Dow was working on matters other than the Richard case.
2:45 p.m. Dow arrives at TDS offices.
3:30 p.m. Dow receives first draft from Lacosta.
3:30 p.m. Dow decided no longer to pursue a writ of habeas corpus in Richard’s case. (Dow thought he may have decided this later than 3:30 p.m., and Babcock attempted to impeach him with a timeline he had provided to the Commission).
4:30 p.m. E-mail problems cleared up. (Dow took issue with this assertion, stating that e-mail wasn’t the only computer problem TDS was experiencing).
4:45 p.m. Dow began working on the motion to stay because Lacosta had not yet completed it.
6:13 p.m. Motion to stay was faxed to U.S. Supreme Court.

Babcock made quite an issue of the “plate of pasta e-mail,” referring to Dow’s explanation in his deposition of the “plate of pasta” analogy, when Dow compared it to the old lawyer’s expression: “you just throw s**t at the wall and see what sticks.”   Babcock referred also to another portion of the same e-mail chain wherein Greg Wiercioch referred to the LI litigation as something “you’ve got up your sleeve.” Babcock pointed out that Greg had likened an LI claim to a common “magician’s trick,” insinuating that TDS knew the LI claim was a long shot, and that the claim was thus not taken seriously.
Babcock asked if Dow or Lacosta lost any computer data as a result of their difficulties on September 25th, and Dow responded that they had not.
Babcock pointed out that the motion to stay that was filed with the U.S. Supreme Court included the following statement: “Mr. Richard does not seek to avoid execution.”
                Babcock asked whether it had ever occurred to Dow to attempt to file with the CCA general counsel. Dow answered “No, wish it did.” Babcock established that Dow would not expect Fox or Waters to have working knowledge of appellate procedure, so Dow was ultimately the one responsible (along with Wiercioch) for getting the pleadings filed. Babcock stressed that despite Dow’s ultimate responsibility, he never called Johnson or Marty on September 25th. He called attention to the possibility that Dow could have simply gone through the phone book, calling CCA judges one by one, and would have eventually called Judge Johnson, the assigned judge. Dow acknowledged that it was not Judge Keller’s fault that he did not utilize rule 9.2, nor was it her fault that he did not consider the option to call Ed Marty. Babcock concluded that Dow wasn’t denied the right to file, he “just didn’t ask.” Dow responded that he thinks most lawyers consider that the clerks office is the court, and that he did not draw the same distinction that Babcock drew. Dow pointed out that T.R.A.P. 9.2 referrs to a “justice or judge of that court who is willing to accept delivery,” and that the message he got on September 25th caused him to believe that no judge was willing to accept delivery.
                Babcock asked Dow whether he thinks Judge Keller should be removed from the bench because Dow didn’t think to ask whether a judge was willing to accept a late pleading. Dow responded that he does not have an opinion as to whether Judge Keller should be removed from the bench, and that he doesn’t have all the facts. This led Babcock to a discussion of a November 2007 Washington Post article authored by Dow. In the article, Dow says the Court couldn’t be bothered to stay open 20 extra minutes. Babcock asked him whether he should correct that to say “an extra 56 minutes” since the pleadings were not ready to file until 5:56 p.m. Dow said maybe he should have said “an hour,” but later declared: “I don’t need to correct it; they couldn’t be bothered to stay open one minute late!” Babcock then pointed out that the article said that Richard’s attorneys were all volunteers. He pressed Dow to admit this was inaccurate since TDS lawyers receive a salary, but Dow didn’t budge. Dow suggested that if Babcock were representing Keller pro bono, he would be a volunteer as to Keller although he would still receive a salary from his firm. Similarly, Dow explained, as to Richard the TDS attorneys were volunteers. Babcock responded that there was no need to discuss what Judge Keller was paying him. Babcock then pointed out that the Washington Post article makes reference to a 100 page pleading, when in fact the pleading was only 27 pages. Dow remained steadfast in his conviction that any inaccuracies in the Post article were minor, and that even if he said “they couldn’t be bothered to stay open 56 minutes” and that it was a “100 page pleading” it would not have made a significant difference in the public’s opinion of the situation.
                For several minutes, Dow and Babcock argued heatedly about representations that had been made during discovery about TDS’ IT consultants and service records. Babcock then refocused his attention on the Washington Post article. He referenced an assertion by Dow that “we pleaded with the Court at least three times to stay open, but Keller would not make an exception to the policy that the clerk’s office closes at 5:00.” Babcock pointed out that no one from TDS had pleaded with Judge Keller herself. Dow responded that the article doesn’t say they pleaded with Keller, but with the Court. Babcock turned to another portion of the article, wherein Dow stated: “Keller has been correctly criticized, even vilified, for this decision.” Babcock asked Dow how he could say that when he said earlier that he didn’t have enough facts to say whether Keller should be removed from office. He said that Dow had “spun” the media story.
                Babcock continued to dissect the Washington Post article. He turned to Dow’s assertion that “the focus on Keller should not absolve the others who share responsibility for this preventable travesty.” He listed the other people that Dow considered blameworthy: Attorney General Greg Abbot, the Harris County District Attorney’s Office, and the Justices of the United States Supreme Court. Babcock pointed out that Keller had nothing to do with any of their actions. He also indicated that TDS shared responsibility because TDS could have done more.
                Finally Babcock asked Dow whether he thinks Judge Keller is incompetent, to which Dow replied “No.”
Witness #6: Alma Lacosta (Called by Deposition)
By Mr. Babcock:
Alma Lacosta is an attorney with TDS. She went to law school at UC Berkeley and passed the Texas bar in November 2006. She went to work for TDS in January 2006. In September 2007, she had been licensed to practice law for less than one year. She was the only TDS lawyer in the Houston office on September 25, 2007.
                Lacosta first heard of the Baze case around 10:30 on September 25th from Dow. She participated in a conference call around 11:30 or 11:40 a.m. which lasted approximately 30 minutes. During this conference call, Lacosta was given several assignments, including a writ of prohibition, a motion for stay of execution, and a writ of habeas corpus. She does not recall whether she was asked to prepare a motion for leave to file a writ of prohibition. She began work on these assignments around 12:00 or 12:15 p.m.
                Dow arrived at the TDS office before 3:00 p.m. At approximately 3:30 p.m., Lacosta sent Dow a draft of the writ of prohibition. At that time, she had not started the writ of habeas corpus or the motion to stay. Lacosta never completed the first draft of the habeas writ because she realized they were going to run out of time and strategically it made more sense to focus on the writ of prohibition. There was a footnote on the writ of prohibition indicating that should the Court wish to construe the writ of prohibition as a subsequent application, the Court should do so.
                Lacosta testified that she had the ability to create a draft on her computer at 3:30, but that there were computer problems. Specifically, she and Dow were unable to e-mail back and forth so that Dow could correct her work, and she could implement Dow’s changes. At 4:00 p.m. Lacosta received handwritten revisions from Dow. She then made the edits and changes in the draft and the final was ready between 4:30 and 4:40 p.m.
                When asked why she didn’t just fax the final drafts to Austin, Lacosta explained that with exhibits, it was 100+ pages and it was easier to e-mail than to fax. She said they didn’t know at that time the extent of the computer problems.
                Lacosta disclosed that she had never prepared a writ of prohibition before and had to call other attorneys to get a form. On execution day, Lacosta never spoke to anyone at the CCA. She did speak to Fox one time around 4:45 p.m. regarding Fox’s conversation with the clerk’s office. Fox had said something to the effect of needing to get the pleadings in ASAP because the court closes at 5:00. Lacosta testified that they were attempting to send the pleadings via e-mail to Liz Waters in Austin. She doesn’t remember whether she told Waters that there were e-mail problems. For a period of time, Lacosta would attempt to send Waters the pleadings and then call to see whether Waters had received them. Waters was reporting to Lacosta that she was not receiving the e-mails. At 4:55, the writ of prohibition finally made it to Waters. Lacosta testified that between 4:55 and 5:10, she made a change to the writ, removing all references to exhibits (since they had decided to forego the exhibits). At 5:19 and at 5:21, Waters received final drafts of the writ. Lacosta stated this was because she was sending it multiple times.
                Lacosta testified that she has read portions of the Texas Rules of Appellate Procedure during her time with TDS. She testified that prior to September 25, 2007, she had not read T.R.A.P. 9.2.
By the Attorney for the Commission:
                Lacosta testified about what went in to preparing Richard’s writ of prohibition. It was not merely a matter of cutting and pasting boilerplate. She had to call other attorneys to find a form, then set forth the procedural history, the standard, the reasons why Richard was entitled to relief, and the reasons why he had no other adequate remedy at law. Lacosta testified that drafting a compelling argument required research. All of this work was completed between 12:15 and 3:30.
                Lacosta stated that from her conversation with Rindy Fox, she understood that Fox was telling her that they would not be able to file after 5:00; that if they did not get the pleadings in by 5:00, they would not be accepted.
Witness #7: Judge Sharon Keller
                McKenna went straight into the CCA Judge’s Manual of Practice and Procedure. This manual contains execution day protocols. These protocols were not reduced to writing until October or November 2007. Thus, they were not in written form on September 25, 2007. Despite the fact that the protocol was not in writing, it was firmly in place, and known by the judges. Keller admitted that the written protocol is exactly the same as the oral protocol that was in place on September 25th, and that she was familiar with such protocol. When asked what the purpose of execution day procedures was, Keller responded: “The procedures were just how we handled executions.”
                Keller agreed that according to protocol, on execution day, there would be an assigned judge who was required to be either physically present or at least available past 5:00, up until the actual execution. The protocol states that all communications regarding the scheduled execution shall be directed to that judge. Keller also agreed that the term “shall” indicates a mandatory rule, and that she knew the term “shall” to be part of the oral protocol. McKenna displayed a letter Keller had sent in December of 2007, which contained the execution day procedure. The text from the letter is identical to the text in the current Manual of Practice and Procedure.
                Keller was unsure whether Abel Acosta was familiar with the execution day protocol on September 25, 2007. She was adamant that Acosta was not at fault.
                Keller was shown a copy of her verified answer in this case. In paragraph 14(w) of the answer, Keller had stated that Ed Marty did not follow execution day protocol because he thought the call was not regarding a substantive matter. She agreed with Marty’s reasoning that a communication about an administrative, non-substantive matter was not a communication that called for implementation of the execution day procedure. McKenna pointed out that the policy refers to all communications, rather than substantive communications. Keller responded that she believes it was not a substantive matter, although she can see why others think it was.
                McKenna asked Keller why, if she believed that Marty had violated protocol on September 25th, did she not believe that Acosta had violated protocol as well. Judge Keller replied that no one really expected Acosta to call the duty judge, and that no one really blames Acosta.
                McKenna asked whether, on September 25, 2007, the execution day policy was publicly known. Keller said she would think a large part of it would be known. McKenna then asked why the identity of the assigned judge would be kept confidential. Keller said she did not know the purpose of that.
                Keller acknowledged that she had received an e-mail on September 25, 2007 mentioning the Baze case, and that she knew the case could have implications extending beyond the state of Kentucky. She admitted that she was aware that the Baze case may be the basis for a challenge that very day. Keller conceded that she knew that there was an execution scheduled for that evening, she knew there was an assigned judge, and she knew that she was not the assigned judge.
                Keller left the CCA on September 25th around 3:45 p.m. Before she left, she said she would have checked her e-mail. She cannot specifically remember checking it, but she did tell the Commission in June of 2008 that she would have checked it before she left for the day.   In that case, Keller admitted, she would have seen an e-mail indicating that Richard’s attorneys had communicated with the Harris County District Attorney’s office and that they planned on filing something.
                At 4:45 p.m. on September 25th, Keller received a call from Marty. She has no precise recollection of the words exchanged during that call. She recalls something like “they wanted to file something but they were not ready,” and something like “they want to keep something open.” Judge Keller admitted to knowing at the time that this call was related to the scheduled execution, that she was not the assigned judge, that someone else was the assigned judge, and that if someone was executed it could not be undone. She knew that she had gotten repeated e-mails regarding the Baze decision that very day. She know that the team for the person who was going to be executed was planning on filing something on that issue. She knew someone had called about that issue and that they needed more time to file. However, Keller cannot recall what, if anything, further she asked Marty during their phone call.
                Keller expressed doubt that the phone call she received from Marty fell within the execution day protocol. In response, McKenna went over the words of the protocol, section by section:
All communications

regarding the scheduled execution

shall

first be referred

to the assigned judge.

The term ‘communications’ includes pleadings, telephone calls, faxes, e-mails, and
any other means of communication with the Court. The assigned judge may call a special conference or gather votes by telephone, e-mail, fax, or other form of communication.

An issue was made about a Keller’s statement, as quoted in the newspaper, that she had said “we close at 5.” Keller said she would not have put quotation marks around that statement. She said: “I told him that we close at 5. No quotation marks.”
At 4:59 on September 25th, Keller called Ed Marty to see whether papers had been filed on Richard’s behalf. They spoke for approximately 3-4 minutes. She did not recall saying something along the lines of “why should the staff have to remain after hours just because the lawyer’s couldn’t get their work done on time?” At 6:22 p.m., Keller received a call from Marty. This call was regarding activity in the Richard case in the Harris County court and in the Supreme Court. At that time, Keller knew Richard’s execution had not yet taken place. At 8:30 p.m., Keller knew that Richard had been executed.
Keller maintained that when she spoke to Marty about staying open late she “did not believe [she] was making a decision” despite the fact that she said “no” twice during that call. She admitted that she did not ask Marty to clarify why the callers wanted the court to stay open or why they were not ready to file. She stated that at the time of the call, she did not know Richard’s name, or the facts of his case. She did not know the details of the crime for which he was to be executed, nor did she know the procedural history of his case. She did not, at that time, know anything about TDS’ computer problems.
Judge Keller’s testimony will resume tomorrow at 10:00 a.m.

Day Three
Keller Hearings Day Three

Jessica S. Phipps of The Ackerman Law Firm, PLLC

This morning I was asked to clarify the chain of communication that took place on September 25, 2007. Rindy Fox called Abel Acosta, who called Ed Marty, who called Sharon Keller. Keller responded to Marty, who returned Acosta’s call, who then returned Fox’s call.

CORRECTION: In yesterday’s report, I mistakenly referred to Alma Lagarda as Alma “Lacosta.” My apologies to Ms. Lagarda.

Judge Keller’s Testimony, Continued

                McKenna’s questioning resumed with a series of questions concerning Keller’s relationship with Ed Marty. Keller testified that Marty was loyal to her. When asked whether Ed Marty thought of her as his direct supervisor, Keller replied that all nine judges were Marty’s supervisors and that if he had one primary supervisor, it was Judge Price.
                On September 25, 2007, Keller gave Marty no guidance regarding the execution day protocol. She did not tell him on that day to call the assigned judge. She did not know, at that time, what specifics Marty was aware of with regard to the execution day protocol. However, Keller herself was aware of the protocol. She said she “assumed [Marty] would do what he was supposed to do.” She continued, “I have no authority to give him training about [the execution day protocol].” She is unaware as to whether any other CCA judge trained Marty on the execution day protocol.
                When asked whether the execution day protocol is part of her responsibility, Keller responded “not exactly.” When asked whether she had the responsibility to abide by the protocol, she responded, “Yes, in general.” When asked whether part of her duties as a judge on the CCA included the responsibility to abide by the execution day protocol, she responded, “No, I would say that my responsibility to the other judges required me to abide by the execution day protocol.”
                Keller conceded that there was no training procedure in existence with regard to the execution day protocol. She explained that “people learn by doing it.” Keller agreed that her duties as presiding judge include the duty to create and maintain records containing proper and adequate documentation of policies and procedures. However, as of September 25, 2009, she had been presiding judge of the CCA for many years without putting the execution day protocol into writing. Keller did not think this failure was a violation of the above duty, explaining that the duty referenced was “about records management” and thus did not require her to reduce the protocol to writing.
                Keller acknowledged that her view of the situation was “why didn’t the lawyers file something on time, they had all day.” She said: “I think it’s a legitimate question.” She elaborated that in this case, the lawyers had not asked “for a short grace period,” rather they had asked the clerk’s office to stay open past 5:00. In fact, she explained, “there is no legitimate reason to keep the clerk’s office open for filing,” given the existence of T.R.A.P. 9.2. She clarified that rather than refusing to give the lawyers a grace period, she simply “declined to keep the clerk’s office open past closing time.”
                Keller did admit that she “knew [TDS paralegals] had said that they intended to file something,” but emphasized that “they did have all day.” With regard to last-minute execution day pleadings in general, Keller expressed the opinion that they “tend to be voluminous and meritless.” She maintains that the call to the Court on September 25th “was a communication about the mechanics of filing,” and agrees with Ed Marty’s view that it was an administrative matter.
                McKenna then showed Keller an order dismissing a lawsuit against Keller that had been filed by Richard’s family. The order cited judicial immunity as the grounds for dismissing the lawsuit. According to the language of the order, a finding of judicial immunity requires a distinction between judicial acts and administrative acts, the former being entitled to immunity. McKenna pointed out that in pursuit of a finding of judicial immunity, Keller had argued in that motion that her acts had been judicial in nature, rather than administrative. Keller responded that “administrative” for purposes of a finding of judicial immunity is not the same as “administrative” for the purposes of this hearing. McKenna persisted, pointing out a quote from the order, which said: “at most, Judge Keller caused a document not to be accepted for filing, a clearly judicial function.” Keller insisted that her actions “absolutely did not” prevent Richard’s pleadings from being filed.
                In another motion from the same lawsuit, Keller had argued that “because the grant or denial of a stay is a judicial act, not an administrative one,” Judge Keller was entitled to immunity. McKenna asked whether that meant that Keller had characterized her actions on September 25, 2007 as the denial of a stay. Keller said she characterized her actions that way when seeking immunity, but maintained that McKenna was comparing “apples and oranges.” She stressed the importance of the difference between today’s proceeding and a federal lawsuit such as the one referenced.
                Keller would not admit that each time she said “no” on September 25, 2007 she made a decision. She would not admit that each time she said “no” she made and impact. She would not admit that each time she said “no” there were resulting consequences. She did admit that she knew that the people who called the CCA on September 25th wanted to file something. Finally McKenna asked whether, knowing what Keller knew then, and based on what Marty said and what Marty asked, she would do anything different. Keller responded that she would not do anything different.
                Babcock began his examination of Judge Keller by asking her about her background. Keller was born and raised in Dallas, TX, and received her law degree from Southern Methodist University in 1978. She ran for the CCA in 1994. Babcock went over the election results for the 1994 election, and the 2000 and 2006 elections, in which Keller ran for presiding judge. This was an effort to show that Keller is a popularly elected judge. Babcock then turned to Keller’s involvement in defendants’ rights organizations. She is a past chair of the Justice Center, a chair of the TX Task Force on Indigent Defense, and a chair of the TX Mental Health Task Force. Babcock pointed out that for these efforts, Keller has garnered favorable publicity for the judiciary of the state of Texas.
                Keller maintained that the execution day protocol was, on September 25, 2007, an oral tradition of the CCA rather than a Court rule, statute, constitutional provision, or decisional law. She explained that it is not a “Court rule” because “rules” are made through a “public process” and the CCA has very limited rulemaking authority. She reiterated: “in no way was [the execution day protocol] a Court rule.”
                Keller insisted that she “did not deny [Richard] the right to be heard…at all.” She reasoned that the Texas Government Code Section 658.005 sets forth the Regular office hours for State employees. Although Keller had the discretion to extend these hours, the clerk’s office had never been kept open past 5:00 on execution night or on any other night. Further, T.R.A.P. 9.2 allows for filing with any judge or justice on the Court who is willing to accept delivery at any time. Keller was aware that both the general counsel and Judge Johnson had accepted late filings in the past from Greg Wiercioch himself. She insisted that the Court can put reasonable restrictions on when documents can be filed.
                When asked why she believed that the negative articles in various newspapers had not cast discredit upon the TX judiciary, Keller responded that the “articles were the result of misinformation from TDS attorneys to the press.” She said that the allegation that she closed the Court to Richard’s attorneys “is false in every way” because the Court was open for filing up until the time of execution. When she said the clerk’s office closed at 5:00, Keller maintained that she was “doing exactly what [she] was supposed to do.”
                To dispel any notion that her departure from the Court to meet a repairman meant that she was not putting in enough hours, Keller testified that she had arrived at the Court at 6:00 a.m. that morning, and stayed until 3:45 p.m.
Keller insisted that her actions were not the result of bias or prejudice. She asserted that she had not treated the closing time of the clerk’s office any differently on September 25th than she had before or has since. She insists that it was a “close question” whether the execution day protocol was applicable to Marty in the situation that arose that day.
Keller testified that she no longer believes that Marty violated protocol on September 25th because she now knows that “Mr. Marty told Judge Johnson about the phone call.” When asked whether she thinks Judge Johnson was being untruthful when she testified that Marty had given her no such information, Keller said she did not think Johnson was being untruthful. Rather, she believes that Johnson was “either confused, or remembering it incorrectly, or just didn’t put it together properly.”
Judge Keller insists that she did not “impede Mr. Richard’s right to be heard in any way.” She, of course, does not believe she was incompetent on September 25, 2007.    Finally, Babcock asked Keller whether she had anything to say to her critics. Keller responded: “I believe they were misled by information that was deliberately provided to them largely by TDS,” and “we wouldn’t be here today if it hadn’t happened.”
McKenna clarified with Judge Johnson that after September 25, 2007, she had spoken to Marty about the events of that day. Subsequently, she testified to the Commission that Ed Marty had not told Johnson about the call. Keller responded that “that’s what [she] thought then,” and that she and Marty “had not talked about that.”
Witness #8: Ed Marty (by video deposition)
                Ed Marty was the general counsel of the CCA from November 17, 2003 until July 3, 2008. When asked who he thought of as his supervisor, Marty responded that he “talked to the Court through the presiding judge” (Keller). His immediate reporting responsibilities were to the presiding judge, and if he needed interpretation of a rule or guidance, he would turn to the presiding judge. Marty clarified that although this was generally true, all nine judges had some involvement in his supervision.
                On September 25, 2007, Marty learned of the cert. grant in the Baze case. He then sent an e-mail to several Court personnel stating that he did not know whether Richard would try to stay his execution based on the Baze issue. He admitted that he appreciated the possibility, even the likelihood, that Richard’s attorneys would file something with the CCA that day. Later that day, Marty began the “workup and order” on the Baze case. A “workup,” Marty testified, is a document in which he would explain “here’s what they claimed, here’s the law, here’s the recommendation.” The “order” is simply a draft of an order reflecting the anticipated outcome. Later, in a memo to file, Marty wrote that the U.S. Supreme Court had denied “something,” which he later learned was Richard’s Atkins claim. While working on the workup and order, Marty received information which led him to conclude that if a Baze-based claim came in on Richard’s behalf, the judges would likely deny the claim in a 5-4 vote. In fact, he knew from Judge Price’s research attorney, that a Price’s dissent was already being prepared.
                Around 3:20 p.m., Marty finished his workup. Around 4:40 or 4:45 p.m., he received a phone call from Abel Acosta. Marty testified that Acosta told him something like: “I got a call from…and they’re having trouble getting it…and they want the Court to stay open.” Marty doesn’t know the details of the problems TDS was having, but he did know that they were having trouble getting papers to the Court.
                Marty told Acosta he would call the “P.J.” and get back to him. Both men knew Marty meant “presiding judge” Keller. Marty knew that Keller was not at the Court, so he called her on her cell phone.
                Marty was aware that ordinarily, after 5:00 p.m., filings were no longer accepted. He knew, however, that Baze presented an unusual circumstance and called Keller to see whether she would make an exception. When asked whether, as he was making the call, Marty was expecting Keller to say “yes” to an exception, he responded that he thought she might say “something other than ‘no.’” McKenna impeached Marty on this point, showing that in earlier testimony to the Commission, Marty had said that he expected that Judge Keller would say “yes.”
                When asked for his best recollection of what he said to Keller, Marty said he told her that they wanted to stay open – that they were having trouble getting it. He said he must have asked, in some way, whether they closed at five, or whether they were willing to stay open past five, because he could recall Keller saying “no.” He could not recall the exact words exchanged during this call. He did admit that Keller’s answer caused him some concern, but that he did not feel that he could call someone else and countermand Keller because “that would be countermanding an order legally given.” After his conversation with Keller, Marty reported her answer back to Acosta.
                At approximately 5:00 that day, Marty received a call from Keller. She called to ask whether Keller’s attorneys had filed anything that day. Marty responded that they had not. At that time, Keller said something along the lines of “didn’t the people at the clerk’s office have a right to go home at 5:00.” In fact, in his August 2008 testimony, Marty testified that Keller had said “well there’s no reason that the clerk’s office should be made to stay open for these people who can’t file on time.” Today, Marty said he would not be comfortable using those exact words. He did admit, however, that this testimony was a faithful recollection of the substance of Keller’s comment. Marty also admitted that he and Keller had, in the past, discussed their mutual dislike of the “tactics” of purposeful late filings in death penalty cases.
                Marty testified that on September 25, 2007, he “had no idea” that any matters outside of substantive issues with the case should be referred to the assigned judge. He was unaware, at that time, that all communications had to go to the assigned judge. Judge Keller did not tell Marty that he should have communicated with the assigned judge. Marty testified that if Keller had told him that, he would have done as she said and called Johnson.
                At this point, portions of Marty’s depositions were played which had to do with his background in the military and his employment history. Marty was a highly decorated army major who was honorably discharged after 20+ years of service.
                Marty testified that he himself had helped to develop some of the execution day protocol. For example, he changed the rules so that the general counsel, as opposed to a secretary, would be responsible for appointing the assigned judge on an execution night. Marty also instituted the rule that general counsel shall be present at the CCA until the time of execution has passed.
                Marty testified that on September 25th, he knew where Judge Johnson was until shortly before 6:00 p.m., and he knew how to reach her after 6:00 p.m. (he had both her home phone number and her cell phone number). Marty’s view, however, was that when he received the call from Acosta, it was regarding an administrative matter, so that the execution day procedure did not apply. He believed the call regarded the administrative question of what time the clerk’s office closed, and that’s why he called Keller (because she had the authority to determine whether to extend those hours).
                On October 26, 2007, Marty wrote a memorandum to himself regarding the events of September 25th. He did so because he “was starting to forget things, and it was starting to heat up.” There was an issue made as to discrepancies between this memo, Marty’s testimony to the Commission, and his subsequent deposition testimony. The inconsistencies in Marty’s testimony as between these documents were primarily in the areas of (1) what Acosta told Marty (2) what Marty told Keller, (3) Keller’s reply, and (4) whether Marty ever told Judge Johnson about the phone call. In defense of these discrepancies, Marty stated: “I know that I have tried to keep these things straight.”
Marty testified that the Monday following September 25, 2007, he was called into Judge Price’s office and reprimanded for his actions. Although Marty’s memory is unclear as to what he told Johnson on September 25th, he does remember being accused by Price in during that Monday morning meeting of not telling Johnson about the call, and responding “yes I did.” He recalls that Price then called Johnson into the meeting, and recalls Johnson saying “yes he did tell us that, but I thought that meant they weren’t going to file anything.”
Marty testified that during his conversations with Keller and Acosta, he would have thought of the words “court” and “clerk’s office” synonymously. When he said the word “court,” he “was never thinking of anything but the front door of the court building – the clerk’s office.”
                Marty testified that he sees Keller as smart and competent. He said that it is no secret in the appellate community that if you want to file after 5:00, you go to the general counsel or to the CCA judges. In spite of that general knowledge, no one from TDS ever called Marty, even though his phone number is on the CCA letterhead and in the Austin phone book. When asked about the public’s criticism that Marty should have referred Richard’s team to T.R.A.P. 9.2 or suggested an alternative means of filing, Marty responded that he could not proactively reach out to litigants. He said “I couldn’t open the door for them.” When asked whether he believed he acted properly with respect to Richard and his team, Marty said he operated under the law and the instructions given to him by the Court. He believes that Keller acted properly as well.
                Marty has previously said that he “wouldn’t trust [Dow] at all.” He said this because, according to Marty, there were a few times when news reports would reflect that “something had gone a certain way,” when things hadn’t gone that way at all. Marty believes that what Dow told the press “wasn’t true.”
The Examiner rests.

Proceedings will resume at 10:30 a.m. tomorrow morning.

Day Four

Keller Hearings Day Four

Jessica S. Phipps of The Ackerman Law Firm, PLLC

For the defense:
Witness #9: Roy Greenwood
Roy Greenwood was retained by Keller to act as an expert witness in this proceeding. On November 15, 1971, Greenwood took a position an administrative assistant at the CCA. Early on, his responsibility was to review all post-conviction habeas corpus petitions that came in. Greenwood was with the CCA until November 1978. Since then he’s been in private practice, specializing in post-conviction capital punishment law.
Greenwood testified that he is familiar with the T.R.A.P. He acknowledged that it is important for lawyers who practice post-conviction criminal law to be familiar with those rules and with the federal rules. Greenwood has testified previously as an expert on questions of prosecutorial misconduct and ineffective assistance of counsel. During his years as a post-conviction capital punishment lawyer, Greenwood has obtained several stays of execution. He has obtained at least one stay with the CCA. Greenwood has argued before the CCA around fifty times. He has argued before Judge Keller on eight or ten occasions. Greenwood cannot remember a single case that resulted in a published, signed opinion where Judge Keller voted in his favor.
Greenwood testified that the post conviction capital punishment bar in Texas comprises a fairly small number of attorneys. He described TDS as a non-profit organization that primarily attempts to assist capital defendants in Texas with the presentation of their habeas claims. Greenwood is familiar with TRAP 9.2. He explained that Rule 9.2 basically deals with filing in appellate courts. He further explained that T.R.A.P. 9.2 gives filers two options: filing with the Court, or finding, when necessary, a judge or justice of the Court who will accept the filer’s pleadings. Greenwood stressed that it is important for an attorney practicing in front of CCA to know how to file documents after hours. When asked about Dow and Wiercioch’s assertions that they did not know how to file late, Greenwood responded: “I just don’t understand how they could say that” because “they had done that.” When asked whether the clerk’s office at the CCA has ever been kept open after 5:00 p.m., Greenwood responded: “Certainly not in my experience.”
According to Greenwood, T.R.A.P. 9.6 provides that parties and counsel may communicate with the CCA about a case only through the clerk. When asked whether Rule 9.2 is inconsistent with Rule 9.6, Greenwood explained that Rule 9.2 deals with filing. He contrasted this with Rule 9.6, which basically says “you’re not supposed to ex parte a judge on the merits.” Greenwood opined that Rule 9.6 demonstrates that there’s a distinction between the Court and the clerks office. He went on to say that any attorney that practices law actively dealing with courts should know that there’s a distinction between the Court and the clerk’s office. When asked whether a competent and diligent defense attorney would view Rule 9.6 as an excuse for not making a filing, Greenwood said: “Not in my opinion.”
Greenwood testified that TDS’ resources were allocated “very poorly” with respect to Richard’s case. He reasoned that out of all the attorneys that were in both offices, only three were available on the day their client was scheduled for execution. According to Greenwood, only two of those available attorneys, Dow and Wiercioch, were experienced. He noted that although Lagarda was young attorney, and not nearly as experienced as the other two, she was given the vast majority of the workload without any supervision. Elaborating on Lagarda’s lack of supervision, Greenwood pointed to the fact that Dow arrived at the TDS office at about 3:30, worked until 4:00 or 5:00, and basically “didn’t do anything else.” Greenwood’s characterization of TDS’ situation on September 25, 2007 was: “They didn’t run out of time, they just stopped.”
Greenwood was then asked whether a writ of prohibition was the proper procedural vehicle to file in order to obtain a stay of execution. Greenwood did not think it was. He explained that a writ of prohibition is designed to stop someone from doing something that is in violation of a statute or a rule. He likened a writ of prohibition to a writ of mandamus. In this case, Greenwood continued, lethal injection protocol was legal, justified, and not a violation of any statute. While the U.S. Supreme Court had granted cert., there had been no ruling on the merits.
Additionally, Greenwood said, a motion for leave to file a writ of prohibition is a mandatory predecessor to a writ of prohibition. Without such a motion, the writ of prohibition could be dismissed, denied, or the Court could just do nothing. If TDS eventually got the writ to the CCA without a motion for leave, the writ would not have even been considered. If the writ had not been decided on the merits, it would have left Richard in the same procedural position as he was in on September 25, 2007. Greenwood opined that a writ of habeas corpus would have been a more appropriate vehicle.
Greenwood believes that David Dow himself should have been contacting the CCA on September 25th. Greenwood testified: “I would have called Ed Marty at 11:40 that morning…to tell him were putting something together;” to let Marty know “it’s coming.” Greenwood agreed that Rindy Fox was not an attorney, did not have any real legal training, did not know any terminology or rules, and did not know any CCA personnel. He testified that Fox didn’t even know who Marty was.
When asked to explain why he had come to the conclusion that “TDS had terrible timing,” Greenwood testified as follows: When TDS attorneys found out about the cert. grant at around 10 a.m. on September 25, 2009, nothing was done at all until they had a conference call at 11:40 a.m. Greenwood said he could have hand-drawn a petition in 30 minutes during the time before TDS even talked about it. He found fault with the fact that from 11:40 a.m., when Lagarda got her assignment, until 3:30 p.m., when Lagarda finished her work, she was not supervised. Greenwood did concede that the work Lagarda completed was good work, and that she had done a good job with the assignment she had been given. He was troubled, however, by the fact that Lagarda’s work was finished by 3:30 p.m., but it took until 5:57 p.m. to file it in the state district court. Greenwood said: “This whole thing could have been done in an hour…I could have done it.”
When asked whether Richard received “diligent and proper representation” on September 25, 2007, Greenwood replied: “I’m afraid not.”
Greenwood said there were “any number of reasons” the Supreme Court could have denied Richard’s motion for stay under the set of circumstances that day. He said it would be impossible to know why the Supreme Court didn’t grant the stay of execution in Richard’s case.
Greenwood maintains that Judge Keller did not close the courthouse doors on September 25th. She did not prevent TDS from filing anything and she did not prevent Richard from getting hearing in the CCA on that date. Greenwood concluded: “If anybody failed to do that it was the attorneys” for their failure to file the proper pleadings.
On cross-examination, Greenwood admitted that he has never             filed a writ of habeas corpus challenging lethal injection. He admitted that although he knew that the claim was available, he had never made it on behalf of any of his clients. Greenwood conceded that in the six cases where he was able to get stays for his clients, those were not cases in which he had challenged lethal injection chemical protocol. He had admitted during earlier testimony that one reason someone might have thought to file a writ of prohibition as opposed to a writ of habeas corpus is to circumvent the successive writ statute.
                Greenwood conceded that during his prior deposition testimony, he had been critical of attorneys who filed quick 3-5 page habeas corpus writs. He had testified previously that it is difficult to make a cognizable claim, to set forth facts to support a claim, and to address legal arguments in such a concise writ. Greenwood clarified that when he made those statements, he was referring to initial writs, not to subsequent applications.
                Greenwood believes that one of the reasons Richard was executed was because he was “unlucky.” He did admit to having heard that between the time the U.S. Supreme Court granted cert. in Baze and the time they made their final decision, no one had been executed with the exception of Richard.
                It was pointed out that Greenwood himself did not learn about T.R.A.P. 9.2 until he had his own personal experience with a late filing, and in that case, he didn’t find out about the rule until it was too late. In any event, he admitted, he has never taught or written about Rule 9.2.
                After reviewing the materials in this case, Greenwood concluded that “it was unclear” what, if anything, Marty said to Johnson on September 25, 2007.
                Greenwood conceded that a motion for leave is uncomplicated. He agreed that it could be done in one sentence, and that should Judge Johnson have required a motion for leave, TDS could have drafted one in roughly five minutes.
On redirect, Greenwood testified that he was not aware of any other defendants who received stays when their lawyers did not file the proper papers with the proper court. He also acknowledged that in his written memo of October 2007, Marty indicated that he told Judge Johnson about the September 25th phone call from TDS.
Witness #10: Greg Wiercioch (by deposition)
                Greg Wiercioch was one of the founding members of TDS in 1995. At that time, he was in charge of litigating state and federal post-conviction death penalty cases in Texas. Wiercioch moved to San Francisco in January 2006, but is still a member of the Texas bar. He continued to practice law in Texas after moving to California. Wiercioch was the attorney of record for Richard on September 25, 2007.
Wiercioch acknowledged that some of the T.R.A.P. apply to the post-conviction work he does. When asked whether he had ever read the T.R.A.P. prior to September 25, 2007, Wiercioch responded that he had read “parts of it.” However, Wiercioch testified that he had never read Rule 9.2 as of September 25th. He admitted that, as of that date, it would be fair to say he didn’t know T.R.A.P. 9.2 existed.
An issue was made of the fact that although Wiercioch had been involved in Richard’s case since July 2007, a lethal injection claim had never been made on Richard’s behalf, even though Wiercioch knew there were other lethal injection claims being made on behalf of other inmates at that time. In fact, the only claim pursued in Richard’s case prior to September 25, 2007 was the Atkins claim.
Upon learning of the Baze certiorari grant on September 25, 2007, Wiercioch asked a friend, Mauri Levin (who is another TDS attorney), to contact David Dow to determine whether or not they could use the Baze decision to get a stay in the Richard case. Wiercioch learned that a conference call would take place later that morning in which he would not be able to participate.
                Wiercioch testified that he never filed a complaint with the Commission about Judge Keller. He told the Commission during his August 2008 testimony that what happened to Richard on September 25, 2007 was the result of a “perfect storm.” During the same testimony, Wiercioch also said: “Oh I’m not blaming Judge Keller….” In defense of these statements, Wiercioch testified today that he is “not blaming Judge Keller for the fact that [TDS] didn’t file the petition before 5:00.” When asked what, if anything, he is blaming Judge Keller for, Wiercioch responded: “If the allegations in the complaint are true, then I’m blaming Judge Keller for not staying open on the day of an execution when the Supreme Court had granted cert. on an issue that same morning.”
                At around 4:40 p.m. on September 25th, Wiercioch first spoke to Rindy Fox about the Court being closed. He remembered that Fox’s concern was that the Court was not going to stay open after 5:00 p.m. He remembers that Fox had been told that by Abel Acosta. Wiercioch testified: “What I recall is that she told me ‘the Court is not going to stay open past 5:00.’” When asked how he responded to this information, Wiercioch said: “It was probably a profanity.” In short, Wiercioch was incredulous. When asked what he did in reaction to the information, Wiercioch said: “I called Keith Hampton and I called Mandy Welch.” (Hampton and Welch are both attorneys). Wiercioch testified that he chose to call Hampton because he knew that Hampton used to work at the CCA and may have cell phone numbers or direct lines to judges or other personnel. Wiercioch testified that despite having worked at the CCA, Hampton “didn’t have any numbers or suggestions.” Wiercioch did admit hat he knew that the numbers to the judges’ chambers were public information. He testified that Welch didn’t provide any help either. Wiercioch stated that he did not call Abel Acosta, the general counsel, anyone else in the clerk’s office, or the judges’ chambers. He admitted that, in hindsight, he has beaten himself up a little bit about his failure to make these calls. However, when asked whether that made him part of the so-called “perfect storm,” he replied in the negative, stating: “I am not accepting any responsibility for the fact that we did not – that the Court did not stay open past 5:00.”
                Wiercioch acknowledged that there was a subsequent conversation with Fox, but could not recall exactly when it was. He believes it was some time after 5:00. He recalls that the substance of the conversation was that the Court was not going to stay open. When asked what he did at this point, Wiercioch responded that he “move[d] on to the next battle.” When asked what the next battle was, he said: “The next battle was trying to get a stay from the Supreme Court.”
                Wiercioch acknowledged the necessity of a motion for leave to file a writ of prohibition as a prerequisite to a writ of prohibition. He admitted that he never saw a draft or a final version of a motion for leave to file a petition for writ of prohibition among Lagarda’s drafts. Despite this fact, Wiercioch never had a discussion with anyone about why there was no motion for leave drafted.
                Wiercioch admitted that, on September 25, 2007, he knew that the previous general counsel to the CCA, Rick Wetzel, had a policy of accepting late filings.
                Wiercioch stated that TDS does not offer any training for its lawyers with regard to after hours filing.
                Wiercioch did not have any computer problems in the Austin TDS office on September 25, 2009. He doesn’t personally know of any other computer problems in the Austin TDS office.
                Wiercioch conceded that, in hindsight, he should have called the CCA general counsel on September 25, 2009.
                When asked whether he wants the commission to prevail over judge Keller in this case, Wiercioch responded: “If the facts are as stated in the complaint, yes.”
Respondent Rests
Examiner Closes
Respondent Closes
Examiner’s Closing Argument
In his closing argument, McKetta followed a Power Point outline, the substance of which is reproduced below:
Principal factual questions

Judge Johnson?/Ed Marty? Late Friday afternoon, Judge Keller, in her trial brief, changed her prior sworn answer. She had once said that Ed Marty never told Johnson about the call on September 25, 2007, but in her brief asserted that Ed Marty did tell Johnson about the call.

Ed Marty

Testimony – 3 versions.
Oct. 26 memo – written one month later: Marty: “I was starting to forget things.” Ed Marty did not write his memo when the events of September 25th were fresh in his mind. He himself said he was starting to forget things and that’s why he wrote the memorandum. As far as the changes in Marty’s testimony over time, McKetta suggested that “human memories sometimes heal themselves over time.”

Judge Johnson

Testimony – one version: Johnson has had one consistent and very sharp recollection that she was not told about the phone call on September 25th.
Memo – written within one week, while her memory was fresh: Unlike Marty’s memo, Johnson’s memo was written within a few days of September 25th. This memo didn’t mention Marty coming in and telling Johnson about the call.

What did Judge Keller…

Know

That someone (Richard) was scheduled to be executed that evening at 6:00 p.m.;
That the U.S. Supreme Court had granted cert. in Baze that very morning;
That the phone call related to that night’s execution;
That the execution would involve lethal injection;
That Baze addressed whether lethal injection is constitutional;
That the 2:40 e-mail made clear that this may be an issue;
Requirements of the execution day procedure;
That there was an assigned judge;
That Judge Keller was not the assigned judge;
The call was on behalf of the person scheduled to be executed that night;
Caller asked the Court to accept a filing later than 5 p.m.;
Caller said they were not ready yet; and
The execution day procedure required that all communications that day regarding the scheduled execution be first referred to the assigned judge.
What Judge Keller did NOT know:

Whether Ed Marty knew the execution day procedure requirement to first refer all communications regarding the scheduled execution to the assigned judge; or
Whether Acosta knew the execution day procedure requirement to first refer all communications regarding the scheduled execution to the assigned judge.

Hear

Marty was calling, asking for direction;
They asked to “keep the Court open because of what happened today;” and
That they were having trouble “getting it.”

No;
Why;
No;
We close at 5:00 p.m.; and
There’s no reason the clerk’s office should stay open for these people who can’t file on time.

Think

Dislike of tactics of purposely delayed filings;
Last-day filings “tend to be voluminous and meritless;” and
“They had all day.”

Twice said “no” during the 4:45 p.m. conversation;
Addressed and disposed of the communication from TDS;
Called back at 4:59 p.m. to make sure nothing had been filed; and
Was silent September 26th, when the judges expressed their surprise that nothing had been filed.

Decide

She says: she made no decisions on September 25, 2007.
Marty says: her decision was his marching order (his deposition has seven references to Judge Keller’s “decision”)
Acosta says: he couldn’t disregard her decision (“the decision had been made;” “we would not accept the filings after 5:00 p.m.”)
Acosta also told Waters: “the decision has already been made not to accept a filing after 5:00 p.m.”

Fail to do

Comply (and require Marty’s and Acosta’s compliance) with the execution day procedure.

Consequence:

Marty hoped for a yes.
Acosta would have been happy to accept a filing if it were his choice.
Acosta told TDS the decision had already been made.
The assigned judge – along with two other judges – remains waiting for and ready to accept TDS’ filing.
TDS’ four communications regarding the scheduled execution were never referred to the assigned judge.

Judge Keller:

In June 2008, Judge Keller testified that Marty failed to tell Judge Johnson about the call.
In June 2008, Judge Keller also testified that Marty violated the execution day procedures.

If Marty had told Judge Johnson between 5:00 p.m. and 5:10 p.m….

Why would Judges Johnson, Price, and Womack wonder out loud at 5:30 p.m. why there had not been a filing?
Why would Ed Marty have stood by silently?
Why would judges have been puzzled at the conference on September 26th by the absence of any filing?
Why would Keller have been silent at the conference on September 26th?

“Administrative Exception”

If Marty had complied with the execution day procedure…

Why would Judge Keller, or Marty, have spent any time raising a so-called “administrative exception” to the “all communications” requirement of the execution day procedure?

Relevance? Richard’s crimes:

Judge Keller was unaware who was scheduled to be executed or what his crimes or litigation history had been.

Relevance? TDS choices:

Keller was unaware of what type of pleadings, or what litigation choices/strategies TDS had chosen.

Relevance? Computer problems/crashes/series of crashes:

Judge Keller was unaware of the reasons that “they were having trouble getting it.”

Relevance? TDS’ Hyperbole in the media:

Judge Keller’s compliance with the execution day procedures would have completely prevented any legitimate criticism of the Court, of Judge Keller, or of the administration of justice.

Willful:

Intentional:

This was not inadvertent conduct.
Judge Keller intended to address and dispose of the communication, rather than to refer it to the assigned judge.

Misuse of office:

Judge Keller’s duties of office required her to “abide by the execution day procedures.”
Her disposing of the communication circumvented the execution day procedures.

Persistent:

Judge Keller said “no” twice during the 4:45 p.m. conversation. She did not insist on compliance with the execution day procedure.
At 4:59 p.m., Keller called to ensure that nothing had been filed. She did not take steps to ensure compliance with the execution day procedure.
Judge Keller was silent during the conference of September 26th.
Keller’s view is that, given the same circumstances, she would do nothing differently today.

Incompetence

Gross carelessness.
Keller’s September 25th non-compliance with the execution day procedure was, at a minimum, gross carelessness in the discharge of her duties, and hence, incompetence in the performance of that duty of her office.

Rule 9.2 and right to a hearing:

Rule 9.2 assures the right to a hearing – a right to present to the clerk or a judge one’s arguments to allow an after-hours filing.
The execution day procedures were the CCA’s mandatory protocol to assure that any communication would first be referred to Judge Johnson on September 25, 2007. That was the forum on execution day for the Rule 9.2 opportunity to be heard on whether a late filing would be accepted.
By addressing and disposing of the TDS communication, instead of requiring it to be immediately referred to Judge Johnson, Judge Keller (i) interfered with the right to a Rule 9.2 opportunity, and (ii) failed to require Marty and Acosta to accord a Rule 9.2 hearing to Richard.
Rule 9.6 makes it ordinary and proper to direct inquiries first to the clerk’s office; Judge Keller’s instructions failed to assure that the inquiry would be promptly referred to the assigned judge.

Subject to Keller’s direction or control

Not credible that Keller had no power to give guidance or direction to Marty or to require him to comply with the execution day procedure – especially when he called asking for direction.
Judge Keller is a judge – indeed she’s the presiding judge.
Marty looked to Keller as:

His supervisor; and
The one he would approach for guidance, direction, etc.

Open Court

The execution day procedure assured an open court. A judge specially assigned would remain available until execution. He or she would immediately receive and address all communications regarding the scheduled execution
Keller circumvented the execution day procedure.
Keller-to-Marty-to-Acosta: TDS was told the decision had already been made not to accept a filing after 5:00 p.m.
If the execution day procedure had been followed…

Judge Johnson would have accepted the filing.

Your Honor

The citizens’ respect for the judicial system, and the administration of justice, is the centerpiece of our civilization. To remove the dueling field and the lynch mob, we have developed a judiciary with the highest standards of fairness and impartiality. Our judges do, and must, comport with those standards of integrity and ethical conduct. That is the reason why we call judges “your honor.”

Accepting accountability:

Judge Keller defended a federal lawsuit by characterizing her conduct as (i) judicial, not administrative, and (ii) addressing what was “effectively an oral request for a stay of execution.”
To the Commission, Judge Keller testified that Marty violated the execution day procedure.
To the Special Master (this week) Judge Keller testified that her role was purely administrative and that there was no violation of execution day procedure.
She said she simply confirmed that the clerk’s office closes at 5:00 p.m. She accepts no accountability for her decisions.
Judge Keller blames TDS rather than her own non-compliance with the execution day procedure as the sole reason for the worldwide criticism.
Judge Keller’s counsel says that Judge Keller believes in and follows the rule of law.
Judges cannot choose to disregard at will established mandatory rules and procedures of the Court.
No procedure in CCA is more important than one that safeguards against erroneous executions.
The execution day procedure is a method to ensure there is no delay or misdirection occurring with regard to last minute communications regarding executions.
Judge Keller chose to address and dispose of an important telephonic communication.

Judge Keller: Given the same circumstances, I would do nothing different today.

Respondent’s Closing Argument
Babcock also used a Power Point outline, the substance of which is reproduced below:
How things work:

September 25, 2007: Richard is executed for the rape and murder of Marguerite Dixon 21 years earlier.
Dow initially says: “We just ran out of time.”

He tried to throw up the “plate of pasta.”
He had assigned the “B team” to the lethal injection claim.
He didn’t take it seriously; started late and never finished.

But then it appears that the U.S. Supreme Court will begin granting stays and TDS changes the story line.

History of Richard in Court:

As of September 25, 2007, Richard had:

2 trials;
2 state habeas corpus proceedings;
3 federal habeas corpus hearings or motions; and
3 proceedings in the United States Supreme Court.

There was no claim of innocence. Richard was guilty of raping and murdering a mother of seven children by shooting her point blank in the head.
There was no “appeal” of Richard’s conviction on September 25, 2007. He did “not seek to avoid execution” but only to have the State use a different chemical protocol.

Babcock then put up a graphic entitled “TDS clock management,” through which he attempted to show that on September 25, 2007, TDS suffered from bad time management. Some points Babcock made with respect to the graphic were:

Supreme Court granted certiorari in Baze at 9:00 a.m.
Alma Lagarda didn’t start working until 12:00 or 12:15 p.m.
Lagarda completed the first draft of only one of four assignments at approximately 3:30 p.m.
A motion for leave to file a writ of prohibition was never prepared.
TDS abandoned the “appropriate vehicle to file,” (a writ of habeas corpus) at 3:30 p.m.
Lagarda never got to the motion to stay. That assignment eventually went to Dow who didn’t start working on it until 4:45 p.m.
Three minutes before Richard’s execution was scheduled, TDS filed something in Harris County.
Between 5:57 p.m. and 8:23 p.m., when Richard was executed, TDS made no effort to try to file anything with the CCA.

After the “clock management” graphic, Babcock continued:

Now the “highly skilled” TDS lawyers say they had computer problems which caused them to be 20 minutes late in filing.
TDS falsely claimed that the attorneys – “all volunteers” – pleaded with Judge Keller to keep the Court open but she refused.
TDS’ story line was seized upon by death penalty opponents and reported by the press.
Babcock proceeded to go through a number of newspaper articles, which he attempted to show were untruthful about the actual events of September 25, 2007. These included: a September 27, 2007 article in the Houston Chronicle; a September 28, 2007 article in the Dallas Morning News; a September 29, 2007 article in the Austin American-Statesman; a September 30, 2007 article in the Seattle Times; an October 4, 2007 article in the San Antonio Express News; an October 15, 2007 article in Texas lawyer; an October 19, 2007 article in the Austin Chronicle; an October 25, 2007 article in the New York Times; an October 26, 2007 article in The Guardian; a November 16, 2007 article in Texas Lawyer; and a November 14, 2007 article in U.S.A. Today.

How things work (continued):

Attorneys file a complaint with the CJC which repeats the TDS story line.
Commission conducts an investigation by interviewing witnesses (outside the presence of Judge Keller or her counsel) some of whom provide false testimony.
The Commission files formal charges which repeat the TDS story line.

                Babcock then turned to the conflict between Marty and Johnson’s testimony, saying that Marty wrote a memo to file on October 26, 2007, which said: “Judge Johnson was called and directly stated that I had told Judge Price and her that Richard wanted the Court to stay open but that the clerk’s office was closed and it was too late to file anything with the clerk.”
                Babcock attempted to demonstrate the absurdity of Judge Johnson’s testimony that Marty had stood by with a nervous smile as several judges discussed their surprise at a lack of filing in the Richard case. He did this by first displaying a floor plan of the CCA, showing that Marty’s office was nowhere near where he allegedly stood in the hallway; in fact, it was in a different building. Babcock then, for effect, walked out the side door of the courtroom, into the hallway, and back in through the rear door of the courtroom to demonstrate the long path Marty would have had to take to get to the location where the conversation was said to have occurred. Babcock then had two assistants play the roles of Judges Johnson and Price, and stand in the middle of the well, while Babcock measured with a measuring tape how far from the judges Marty would have been standing. Babcock then took what would have been Marty’s position and stood there for a while, revealing the awkwardness of this arrangement. He then asked whether we are to believe that Marty stood there, just like that, grinning like an “idiot”, while the judges had a conversation a few feet away. He stressed that Marty is not an idiot, but an honorable and highly decorated veteran.
                Babcock then turned to the lack of evidence of persistent conduct. He emphasized that the charges stem from a single phone call lasting one to two minutes on a single day. Babcock argued that the Commission had not proven that Judge Keller’s conduct was willful. He explained: “Willful conduct is the intentional or grossly indifferent misuse of judicial office, involving more than an error of judgment or lack of diligence.” Babcock expressed his incredulity at the suggestion that after putting in an approximately 10-hour work day, Keller could be viewed as “incompetent.”
                Babcock contended that Judge Keller complied with the applicable law on September 25, 2007. He argued that there was a system in place for filing with the Court after 5:00 p.m. and TDS knew it. He focused on the following aspects of each person’s testimony:

Fox: After speaking with Acosta, she made the decision to do nothing more.
Acosta: When he said “we close at 5:00,” he was speaking in reference to the clerk’s office.
Johnson: Keller could not have blocked access to Judge Johnson.

Babcock argued that even if Acosta had referred Fox’s call to Judge Johnson, Johnson had no legislative authority to keep the clerk’s office open past 5:00 p.m., so she would have had to defer to Judge Keller on the question of when the clerk’s office closed. Therefore, Babcock argued, we would have reached the same result as was reached on September 25th.
Babcock concluded by saying that Judge Keller is a “great” and “fabulous” judge. He said that, in this case, people are “after her” because they want to get rid of her due to the “way she decides death penalty cases.”
Judge Berchelmann concluded the proceedings by commenting that he was “proud to be a member of the Texas bar” because the attorneys had done such an “excellent job.”