Keller Immune to Justice

According to federal district Judge Lee Yeakel's ruling last week, Court of Criminal Appeals presiding Judge Sharon Keller enjoys "judicial immunity," which insulates her from being sued for violating the civil rights of an executed inmate. "Judicial immunity is immunity from suit, not just damages, and therefore applies despite allegations of malice or corruption," Yeakel wrote. And, indeed, there were plenty of allegations of malice and corruption to be found in the lawsuit filed last fall by the family of executed inmate Michael Richard.

On Sept. 25, 2007, Keller closed the courthouse door, blocking Richard's 11th-hour appeal challenging the constitutionality of the trichemical lethal injection method. That same day, the U.S. Supreme Court had said it would review a similar case from Kentucky (Baze v. Rees), and Richard's attorneys were seeking a stay for their client pending the outcome of the Baze case. In order to get the Supremes to consider Richard's appeal, however, the case first had to be considered by the CCA. The appeal was delayed because his attorneys had computer problems. They called the clerk to say the appeal would be late, but Keller refused to accept it: "We close at 5," she said.

This meant, in effect, that Richard was blocked from obtaining a stay from the Supremes and was instead executed – the only inmate to be executed in the U.S. after the high court said it would consider the Baze case. The Supremes ultimately ruled that the trichem injection method, as used by Kentucky, is constitutional, and thus the death-house machinery began its endless churning again this summer. Still, the court did not preclude additional challenges to the method, especially by a state – read: Texas – that has more experience with the mechanics of death and thus a fuller record for the court to vet. At the time the court considered Baze, the state had used the method just once.

Keller's decision was, apparently, made in a vacuum – although there were three other judges at the court that evening, she failed to check with any of them about her decision to shut the doors on Richard, including Judge Cheryl Johnson, who was actually assigned to handle the Richard case. Johnson told the Austin American-Statesman that she was "dismayed" by Keller's decision. In response to Keller's seemingly unilateral decision to deny an inmate access to the courts, Richard's widow (and later, his daughter) sued Kel­ler, arguing that the judge had denied Rich­ard's due process rights. "No law or rule gave ... Keller the authority to close the court to prevent the Appeal," the suit argued.

Ultimately, Yeakel's ruling did not address that argument. Instead, he ruled in Keller's favor, dismissing the suit, opining that Rich­ard's widow, Marsha, did not provide adequate facts to support her allegations and that, ultimately, Keller's position as a judge offered her near total immunity from any such suit. "A judge's duties make her particularly vulnerable to lawsuits from vexed litigants, as she must exercise discretion to make potentially controversial decisions," Yeakel wrote. "Even grave procedural errors do not overcome judicial immunity."

And so in the aftermath of her much derided decision, Keller has so far emerged legally unscathed. Indeed, the status of a complaint filed with the Texas Commission on Judicial Conduct by Texas Civil Rights Project Director Jim Harrington and signed on to by more than a dozen other influential attorneys is also in limbo – Harrington says that because of the rules of the commission, which keep the status of such complaints away from the public, he doesn't know if his complaint is still pending or has been dismissed.