Law Life: Closing time - A tale of two judges

By Barbara Grzincic
The Daily Record Newswire

Dear Presiding Judge Keller:

Thank you for taking the time to read this letter. I know how important time is to you, since you were willing to put the closing time of your courthouse above a condemned man’s last chance to stay the executioner’s hand.

True, you say it didn’t happen that way: that you had no idea the lawyers who wanted to file something after 5 o’clock were representing Michael Wayne Richard, who was scheduled to die anytime after 6 o’clock that same evening.

But the Texas Commission on Judicial Conduct didn’t believe you. It found you acted intentionally to interfere with Richard’s rights.

If it had been any other day, your explanation might have convinced me, if not the commissioners. On Sept. 25, 2007? Not a chance.

That very morning, the U.S. Supreme Court had granted cert in Baze v. Rees to determine whether execution by lethal injection was unconstitutional. An e-mail trail showed your court, the Texas Court of Criminal Appeals, was abuzz with the news — and certain that a habeas petition from Richard’s lawyers would be forthcoming based on Baze.

So certain, in fact, that a denial of the expected petition was drafted that afternoon, along with a dissent.

The denial would not have been the end of it, but it was a necessary stepping stone to Supreme Court review. But Richard never got the denial — and why?

Let’s put the first finger of blame on his legal team at the Texas Defender Service, whose members were working too close to the wire when they allegedly ran into computer problems and realized they’d never make it to your court on time. One of them, likely a paralegal, called around 4:30 p.m. to ask if the court would stay open late.

You had gone home early that day, so the staffer who took the call referred the question to Edward Marty, general counsel to the court. Marty called you at home at 4:45 and you told him, twice, that the court closes at 5 o’clock.

You had no idea he was calling about Richard, you said. Just why did you think General Counsel Marty would call you, at home, to find out what time the courthouse closed?

The fact that Marty called you at all was damning: it showed how poorly trained your staff was. Your court properly had a judge on call to take execution-related pleadings right up to the moment of death.

Unfortunately, the courthouse staffers — General Counsel Marty included — were, apparently, unaware of that procedure.

I understand the policy was put in writing after Richard’s execution, which is to your credit. But on Sept. 25, 2007, the question that should have gone to the judge on call went to you; and when you said no, your staff figured that was the end of the matter.

It certainly was the end for Richard, a convicted killer who was put to death at 8:23 that evening.

These are the things the commission looked at when it decided to issue a public reprimand. Not a bad sanction, given the commission’s findings of “willful or persistent conduct” inconsistent with your duties, and which “casts public discredit on the judiciary.”

Maybe the commission was hoping you would let the matter drop, if it let you keep your job. Of course, you didn’t; you appealed, and the Texas Supreme Court last week let the sanction stand.

So that’s your legacy, now: Sharon ‘Killer’ Keller, the judge who intentionally interfered with the due process rights of Michael Wayne Richard, hastening his demise; and who then denied doing any such thing.

I know you told the commission you had no regrets; that you would not do anything different if the same call were to come to you now. But that was before the high court’s decision. Maybe today, you’re having second thoughts.

And that’s why I’m writing to you now. Just in case you’re wondering what you should have done.

Let me tell you a story.

My first legal job was as a summer clerk at a small firm in Beverly Hills. As the Porsche flies, it was 16 minutes from our office to the courthouse in downtown L.A. To my boss, that meant if he gave us a pleading at 4:30 p.m. we should be able to file it with time to spare.

To me, driving the old Bel Air I had borrowed from my boyfriend, it gave a whole new meaning to the Miracle Mile.

One day, I thought my luck had run out. I got to the filing window at 4:59 p.m. — but there was not a soul around.

I stood there, staring down at the pleadings in my hand and wondering why I wasn’t a dental hygienist. My summer job clearly was over. Probably my whole legal career. I had missed a deadline. I had blown the case.

I heard footsteps.

The man coming down the hall was on the wrong side of the counter to be an employee, but he seemed to belong there just the same. Nice suit, graying temples, heavy-framed glasses. He seemed approachable. He seemed … familiar. Was he an adjunct at the law school? No matter; I had nothing to lose.

“Do you know where I would file these?” I asked, holding up the papers. He looked at me, at the empty office, at the clock (5:03 p.m.), then back at me.

“I’m afraid they’ve all gone, now,” he said. Such a lovely tone. Almost conspiratorial. “But sometimes, if you knock very hard on that door,” (he pointed), “someone will answer.” Then he was gone.

I did as he said. I knocked very hard on that door, until finally a nice man about my own age opened it. I gave him the filing and the check and a smile and a big thank you, and he smiled back and said it was no problem, and I left.

I hit traffic leaving the city and I didn’t care a bit. I had plenty of time now — and I was pretty sure I had placed that face. Back at the office, there was a photo of the California Supreme Court hanging in the library. Sure enough, the man in the glasses was a dead ringer for Justice Stanley Mosk.

It was a great story to tell at law school parties, but I hadn’t thought about it for years. Justice Mosk died in 2001, after working at the court for 37 years, including the previous day. He was the longest-serving justice on California’s Supreme Court. Today, the L.A. Superior Court’s Stanley Mosk downtown courthouse bears his name.

That’s his legacy.

True, Justice Mosk was no Cardozo. There were those who felt he too often changed his mind or bowed to political expediency.

All I know is, Justice Mosk knew that sometimes the courthouse doesn’t really close at 5 p.m.

And when someone needed to know which door to knock on, he was happy to share the knowledge.

Barbara Grzincic is Managing Editor/Law of The Daily Record. Contact her at