Daughter of executed prisoner wants suit against judge re-opened
Keller’s testimony in 2 courts cited in plea for reinstatement.
By Chuck Lindell
AMERICAN-STATESMAN STAFF
Claiming that Judge Sharon Keller made contradictory statements to two separate courts, the daughter of executed inmate Michael Richard moved Thursday to reopen a federal lawsuit against the state’s highest criminal judge.
The lawsuit was thrown out last year after Keller argued that she was acting as a judge — and therefore immune from lawsuits — when she declined to keep the state Court of Criminal Appeals open past 5 p.m. to accept a 2007 execution-day appeal from Richard’s lawyers.
But in August, during a special trial on charges that she violated her judicial duties in the Richard case, Keller testified that at the time she was acting in an administrative capacity, not as a judge.
While on the stand, Keller was asked why she didn’t follow the court’s execution-day procedures, which would have required Cheryl Johnson, the judge assigned to handle last-minute appeals from Richard, to field the lawyers’ request for more time.
Keller replied that she considered her response to the request an administrative act instead of a judicial one, thus exempting her from the execution-day procedures.
Based on that testimony, the Texas Civil Rights Project on Thursday asked U.S. Judge Lee Yeakel to reinstate the lawsuit.
Judges acting in their administrative capacity are not immune from lawsuits, said Jim Harrington, director of the civil rights group.
“You can’t have it both ways. You can’t argue out of one side of your mouth in federal court,” then argue differently in another court, Harrington said. “This is a judge who understands the law, who understands how important it is to plead correctly … and to say things correctly when under oath.
“I think this speaks volumes about her integrity and her truthfulness.”
Efforts to reach Keller’s lawyer, Chip Babcock, were unsuccessful Thursday.
The federal lawsuit, filed in 2007 by Marsha Richard, the executed man’s wife, accuses Keller of violating Richard’s constitutional rights of due process and access to the courts. The suit, later joined by Richard’s daughter, Doreen Anderson of Crockett, seeks an unspecified amount of money in damages. The Texas Civil Rights Project is working on behalf of Anderson.
“Judges are supposed to uphold the law and do the right thing, regardless of how they feel about something,” said Anderson, 31. “If you are put in that position to do the right thing, then you should do the right thing.”
Keller is awaiting the results of her August trial. State District Judge David Berchelmann Jr., who presided over the four-day trial, is to provide his findings to the Commission on Judicial Conduct, which has three options: exonerate Keller, issue a public reprimand or recommend that she be removed from office.
A removal recommendation would be reviewed by a specially created seven-judge panel.
Berchelmann has no deadline to provide his findings.
Group wants to renew lawsuit against appeals judge
© 2009 The Associated Press
AUSTIN, Texas — A state civil rights group asked a federal judge to reopen a lawsuit against a Texas appeals court judge who refused to keep her court open for lawyers trying to stop an execution.
Lawyers for the daughter of executed inmate Michael Richard contend that Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, misled the federal court that dismissed the original lawsuit last year.
The Texas Civil Rights Project, which is pursuing the wrongful death lawsuit on behalf of Richard’s daughter, is seeking unspecified damages.
Keller is awaiting a ruling from a separate, state judicial misconduct trial earlier this year.
Jim Harrington, director of the civil rights group, said Keller got the federal lawsuit dismissed in 2008 by claiming judicial immunity. But Harrington said Keller, during the state proceedings this summer, testified under oath that she was acting in an administrative capacity when she refused to keep the state’s highest criminal court open so Richard could file a late appeal in the hours before his Sept. 25, 2007, execution.
He said her admission undercuts the judicial immunity argument state lawyers made on her behalf in the federal lawsuit.
“You can’t have it both ways,” Harrington said. “You can’t argue out of one side of your mouth in federal court when you’re facing liability and then turn around and argue a different position, a totally different position, in front of an administrative agency under oath out of the other side or your mouth.”
A call seeking comment from the Texas attorney general’s office, which defended Keller in the federal lawsuit, was not immediately returned.
Publisher Sues Texas Dept. of Criminal Justice for Censoring Books
Corpus Christi, TX — Prison Legal News (PLN), a non-profit monthly publication that reports on criminal justice-related issues, has filed suit in federal district court against Brad Livingston, Executive Director of the Texas Dept. of Criminal Justice (TDCJ), and other TDCJ officials.
According to PLN’s complaint, TDCJ has inappropriately censored books sent to Texas state prisoners. One of the censored books was Women Behind Bars: The Crisis of Women in the U.S. Prison System, by Silja J.A. Talvi. Ms. Talvi is an accomplished journalist and award-winning author. Her book on incarcerated women was described by one reviewer as a “comprehensive and passionately argued indictment of the inhumane treatment of female prisoners … the sort of shocking expose too seldom seen in these media days of so much celebrity fluff.” Two other Texas prisoners also were not allowed to receive Women Behind Bars after placing book orders with PLN.
The case is Prison Legal News v. Livingston, U.S. District Court (S.D. Texas, Corpus Christi Division), Case No. 2:09-cv-00296. PLN is ably represented by Scott Medlock with the Texas Civil Rights Project and by HRDC general counsel Daniel E. Manville in Ferndale, Michigan.
PLN contends that the censorship of Women Behind Bars, which was upheld by senior prison officials, was improper. Further, the TDCJ did not notify PLN of the censorship decision which would have provided PLN an opportunity to respond and contest that decision.
TDCJ staff also censored another book ordered from PLN, The Perpetual Prisoner Machine: How America Profits from Crime, by Joel Dyer, on the basis that the book mentions “rape.” In fact, as PLN explains in its federal complaint, Perpetual Prisoner Machine “quotes from a 1968 Philadelphia District Attorney’s Office investigation into sexual assault in prison, and describes crimes committed against prisoners.” Again, the TDCJ did not notify PLN of this censorship.
“It is a sad commentary when government officials censor books sent to prisoners — particularly books that deal with prisoners’ rights and conditions in our nation’s prisons,” stated PLN editor Paul Wright. “Apparently, the TDCJ prefers that prisoners remain uninformed about issues that directly affect them. We believe this is a poor rationale for censorship.”
“For decades, Texas prisoners have had the right to read most books while they are incarcerated,” said Scott Medlock, Director of the Texas Civil Rights Project’s Prisoners’ Rights Program. “If there is anything everyone should be able to agree on, it’s that encouraging prisoners to read is a good thing.”
PLN is seeking compensatory, punitive and nominal damages plus declaratory and injunctive relief for violation of its rights under the First and Fourteenth Amendments, as well as attorney fees and costs.
Prison Legal News (PLN), founded in 1990 and based in Seattle, Washington, is a non-profit organization dedicated to protecting human rights in U.S. detention facilities. PLN publishes a monthly magazine that includes reports, reviews and analysis of court rulings and news related to prisoners’ rights and criminal justice issues. PLN has almost 7,000 subscribers nationwide and operates a website (www.prisonlegalnews.org) that includes a comprehensive database of prison and jail-related articles, news reports, court rulings, verdicts, settlements and related documents. PLN is a project of the Human Rights Defense Center.
State Bar of Texas Recognizes Pro Bono Performance
J. Chrys Dougherty Legal Services Award: Scott Medlock
Describing himself as “a do-gooder at heart,” Scott Medlock says he went to law school to become a public interest lawyer.
“I wanted to do something to improve the world,” says Medlock, director of the Prisoners’ Rights Program at the Texas Civil Rights Project (TCRP) in Austin. “I enjoy what I do, and I get a ton of satisfaction out of it, and that more than makes up for the meager salary us public interest lawyers make.”
The State Bar of Texas is recognizing Medlock’s work by awarding him the J. Chrys Dougherty Legal Services Award, which honors an outstanding legal services staff attorney. It is named for Dougherty, a retired attorney from Graves Dougherty Hearon & Moody in Austin, who helped build a working partnership between the State Bar and legal services providers.
Medlock says his work at TCRP primarily involves litigating cases on behalf of people who are incarcerated in state prisons, county jails or other detention facilities. Often at issue in the cases is whether the incarcerated individuals are held in safe and humane conditions and whether their civil rights are protected, he says.
In 2007, Medlock was one of several attorneys who represented four juvenile offenders in Galloway, et al. v. Texas Youth Commission, et al. , filed in the U.S. District Court for the Western District of Texas in Austin. Plaintiff Joseph Galloway, who was 19 when he filed the suit, alleged in the complaint that he suffered abuse during the four years he was incarcerated in TYC facilities. Galloway, who has Tourette’s syndrome and attention-deficit (hyperactivity) disorder, further alleged in the complaint that TYC repeatedly extended his nine-month sentence, often for minor disciplinary infractions.
Medlock says TYC extended Galloway’s sentence for conduct that included violations of the dress code or for talking too loudly, a symptom of Tourette’s syndrome. “He ended up doing four times as much time as he was supposed to, because of his disability,” Medlock says. The plaintiffs settled with TYC in November 2008, according to the final judgment signed by U.S. District Judge Lee Yeakel, who dismissed the suit.
Medlock says the Galloway litigation may have played a role in the TYC reforms that the Texas Legislature enacted in 2007. The TYC legislation was pending at the time the suit was filed, and the litigation may have educated lawmakers, he says.
Jeffrey Edwards, another attorney who represented the Galloway plaintiffs, says the suit settled for about $625,000. Edwards, a founding partner in Evans Edwards in Austin, says attorneys were able to begin settlement talks early in the litigation because of the relationships Medlock had built with opposing counsel. “We were able to get to the table very quickly,” he says.
Edwards says Medlock has a good reputation for his professionalism in handling civil rights cases. “He’s able to depersonalize highly charged issues, so that the lawyers on the other side understand where he’s coming from, and both sides are able to work toward a solution,” Edwards says of Medlock.
The degree of Medlock’s professionalism is unusual considering the short time he has been a practicing attorney, Edwards says.
A 2005 graduate of the University of Texas School of Law, Medlock says he worked as a volunteer at Texas Defender Service in Austin for a few weeks after graduating and then joined the TCRP staff.
The Prisoners’ Rights Program assisted more than 200 individuals in 2008, Medlock says. “I have five or six active cases at any time, and probably 10 in the investigations stage,” he says.
– By Mary Alice Robbins
Texas Death Penalty Close Up
Jim Harrington
Director, Texas Civil Rights Project
Jim Harrington has been working to promote civil rights in Texas since he graduated from law school in 1973. As the Director of the South Texas Project in the Rio Grande Valley, Harrington worked with farm workers and poor people, especially in the colonias, to assert their rights. He worked on major cases involving police brutality, discrimination and United Farm Worker organizing. A decade later he moved to Austin as the Legal Director of the Texas Civil Liberties Union Foundation, Inc., to work on similar issues. In 1990, he founded the Texas Civil Rights Project, which promotes social, racial and economic justice and civil liberties for poor communities in Texas.
Jim Harrington and TCRP became involved in a 2007 capital case after a Texas judge, Sharon Keller, refused to delay the closing of her clerk’s office by a few minutes on the day an execution was scheduled for Michael Richard. His lawyers had requested extra time due to computer problems. Her refusal resulted in Richard’s execution later that evening.
Can you tell us a little about what happened in the case of Michael Richard and Judge Keller?
The only issue that we were involved in at all in this case was the question of not having a hearing, on the denial of the hearing–closing the courthouse down. We became aware of it when the issue broke in the press and then his [Richard's] daughter called us, she was actually referred to us by another lawyer, and we decided at that point that this was an egregious enough due process issue that we should do something about it. Even though the law wasn’t particularly favorable to us because of the kinds of immunities that judges have, we still decided that it was important to do because of the gross, or grotesque miscarriage of justice that occurred.
So, we actually ended up with a three-pronged approach. One was to sue Judge Keller herself–number one. Number two was to seek her removal or discipline through the Judicial Conduct Commission, which we thought probably would be the better shot at getting something done. The third was to address the overarching issue, which was the fact that this court had no e-filing–where you can file your legal documents electronically. Virtually all the appellate courts throughout the country do this. This court was distinguished or undistinguished by the fact that it was one of the few that didn’t allow e-filing, particularly in emergencies like this. The lawyers could have just sent it [the appeal] directly to the court and they wouldn’t have had any problems.
On the third issue, on the electronic filing, we did that by petitioning the court. We got 326 lawyers, if I’m not mistaken, to sign on to this petition to the court, to institute electronic filing in capital cases. That was quite a spectrum, a cross-section of attorneys throughout the state. Even attorneys who strongly believe in the death penalty signed it because they strongly believe in due process. And then, we ended up with about 30 lawyers altogether filing the petition with the Judicial Conduct Commission. On the Federal case [suing Judge Keller herself], the judge eventually dismissed that because of judicial immunity. We all recognized that that was the weakest point. Courts aren’t disposed to second guessing what a judge does because that gets into judges second guessing judges all over the place. They have pretty strong immunity. But we wanted to make the point just in case there was an opening there.
The Judicial Conduct Commission decided about a month ago to bring 7 charges against Judge Keller. What was her response?
She asked for more time, ironically.
What do you think will happen now? How much more time will it take?
That’s a good question. I mean this is unprecedented in Texas history, so nobody actually has a clue where this thing is going to end up, at this point. I think the good thing is that the Commission has accepted an offer of pro-bono outside assistance–that is, a law firm is going to help prosecute the case without charging the Commission. I think you rarely see that happen. It’s very interesting. It’s already been two years, and because it’s in legal process, it could go another two years before it gets resolved. That would not be unusual.
Have there been any long-term effects from this case on the handling of death penalty cases in Texas?
You can’t point to anything specifically related to this particular case other than, of course, it’s going to make the Court of Criminal Appeals, I think, clearly pay more attention to these appeals. But over the last two years, there’s been a noticeable change in public opinion, with respect to administering the death penalty in Texas. I think there are two things going on that have contributed to that. One is that juries now have the ability to levy life without parole, so you can send somebody away forever without parole. It’s a relatively new option. The other thing that’s going on is that, of course, it’s extremely costly to prosecute death penalty cases. So you see smaller counties and even some of the larger counties not seeking the death penalty but seeking life without parole.
Is it costly because of length of appeals process?
No, that’s part of it, but also the jury selection process is very different. It takes a long time. You do one person at a time, as opposed to a group of people. So that’s very lengthy. And then you have, as you say, all of the appeals that go on. Then, theoretically, you’re going to spend a lot more time developing the case because of the consequence of execution if the case is lost. So there is more investment into the case development. There are a variety of factors. What also happens is that you tie up the court, because it’s such a lengthy process. And when you tie up a court, it basically means you have to create another one to handle all of the caseloads. The caseload is generally pretty enormous for a judge. And so, if you have somebody who is doing nothing but a capital case, then you’re essentially going to have to have another judge there to handle all the other cases. You can do that either by creating a new court or by bringing in visiting judges to sit. But in any respect, it is going to compound the cost that is caused by the capital punishment trial.
Is it true that in the mid-1990′s, a shift in the party affiliation of judges led to a shift in the appeals process?
That’s true, but let me qualify that for you. It is true when the shift occurred in the court system, where we went from the Democratic majority, let’s say, to the Republican majority, there was a very pronounced ideological shift in the courts too. It was reflected by Sharon Keller and the court of criminal appeals–all of those judges are what you might call very, very, conservative. That is not to say, that prior to that shift, even among the Democratic judges, there wasn’t support for the death penalty.
Was there the same reluctance to see through the appeals process?
I think what you would see happen before is that the judges look more seriously at the legal issues put before them with respect to the particular cases. In other words, what you see with Sharon Keller, and this is what was behind her attitude with respect to shutting down the courthouse, is that they basically were the final line in the rubberstamping of that process. Before that, when you had the Democratic majority–and again I say, this is the Texas version of the Democrats, which is pretty conservative–you still would have them look seriously at issues that were raised even if, in the end, they would have ruled against the defendant. They would still take the issues more seriously than what you see the current court doing.
To what extent do you think public opinion is shifting in Texas? Do you think there could be enough support for a moratorium?
No, not in Texas. But you do see, I think, the DNA issue that has happened around the country. A lot of people on death row, convicted of crimes, have been found to be conclusively innocent. I think it’s helped shape popular opinion. I think, again, when juries have the option of sentencing somebody to life without parole, that happens because people sometimes have personal ambiguity about the death penalty. Then you have the social questions that are up front because of the DNA testing. I think all of that compounds the issue, but I don’t think you can point to anything in particular as a turning event. Nor is there anything real solid in terms of survey or statistical analysis to see exactly how everyone is thinking right now, other than these general ideas that are pretty commonly accepted to account for the change in attitude.
Has there been any response to the abolition of the death penalty in New Mexico?
No. Not that I’m aware of. You’re not going to see legislative change in Texas for quite a while I’m sure.
TYC to implement reforms in lawsuit settlement
KVUE.com
The Texas Youth Commission will implement several reforms as part of a lawsuit settlement with four teenagers who said they were abused while in TYC custody, according to the Texas Civil Rights Project.
A federal district judge signed the final judgment Wednesday.
Among the reforms the TYC agreed to:
- Abolishing “open bay” style dorms
- Improved oversight of TYC facilities
- Creation of a system to separate violent youths from non-violent youths while in custody
- Creating more individualized treatment plans for each child
- Opening more “regionalized” facilities so children can stay closer to home
- Providing specialized treatment programs at all TYC facilities.
- The Texas Civil Rights Project says most of the reforms are already under way.
“We commend TYC for recognizing the serious problems in its facilities and trying to correct them,” said Scott Medlock, Texas Civil Rights Project. “These kids suffered serious injuries under TYC’s old regime, and the new TYC recognizing what happened to them was wrong and committing to making sure it didn’t happen again means a lot to them and their families.”
Judge approves settlement in TYC abuse case
AUSTIN — A federal judge has signed the final judgment in an abuse case four teens filed against the Texas Youth Commission, a civil rights group announced Thursday.
TYC agreed to implement a long list of reforms, many that were already under way, officials said.
“We commend TYC for recognizing the serious problems in its facilities and trying to correct them,” said Scot Medlock, the Texas Civil Rights Project’s Prisoners’ Rights Attorney, one of the lawyers who represented the four teens.
He said the youths, who suffered “serious injuries” under TYC’s old regime and have since been released, were relieved that the commission is committed to making sure such abuse doesn’t happen to others.
Among the reforms: creating regionalized facilities that keep children closer to home; designing a system that separates violent from nonviolent youths; improving oversight of TYC facilities by an ombudsman and abolishing open dorms that allowed children to be assaulted.
A TYC spokesman said that the agreement was reached in April and the reforms taking place go beyond the mediated settlement that U.S. District Judge Lee Yeakel signed Wednesday.
