Time's Up: Texas Judge on Trial for Death Penalty Decision

This week sees the San Antonio trial of Sharon Keller, the presiding judge on the Texas Court of Criminal Appeals who is accused of judicial misconduct for closing her court before a last-minute appeal could be filed for an inmate on death row.

Michael Wayne Richard, twice convicted of the rape and killing of a woman in 1986, was facing death by lethal injection on Sept. 25, 2007. That same day, the Supreme Court effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in an unrelated case.

Richard's lawyers, acting on this decision, were in the process of putting together an appeal to delay his execution but had problems with their paperwork. Keller, at 4 p.m., left court for the day, with an assigned duty judge in place in the event that Richard's legal team filed for an appeal. According to testimony, Keller's clerk received the team's request to file paperwork after 5 p.m. -- the usual closing time for the office. After a brief phone conversation with the clerk, Keller responded: "We close at 5." Richard was executed three hours later.

On Wednesday, Keller -- who some activists call "Sharon Killer" -- took the stand and said she would have done nothing differently. In response to the prosecution's question, "You declined to allow any grace period?" Keller replied, "I declined to keep the clerk's office open past closing time."

What some see as behavior warranting Keller's ouster and others view as a respect for protocol is complicated by the fact that Keller presides over what The New York Times called "the most active execution chamber in the country." Compounding this is Keller's response to the prosecution's inquiry as to whether she generally viewed last-minute pleadings in death row cases to be less substantial. Keller agreed, saying, "They do tend to be voluminous and meritless." Was Keller respecting court rules or letting personal preference cloud her decision making?

The counsel arguing against Keller has said that, "This is not a referendum or a debate or a poll concerning the death penalty," and that this is instead a question of whether Keller was competent to "administer capital punishment with the necessary gravity, discretion and care." Perhaps. But the subtext of Keller's trial is whether a citizen's life -- or death -- should be handled by a judicial system that has proven itself erratic, inaccurate and oftentimes arbitrary in its decision making. What's more, the New York Times reported last week that "in dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions."

And that's to say nothing of the court's tricky hours of operation.