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Sorry, We're Closed – You Die

My girlfriend told me a story about how a few years ago she had to take a written test to get her Nevada driver’s license. She stood in line for five hours, form in hand. She got to the head of the line at 5:01 p.m., and the flunkie at the window refused to take her form. “Sorry, it is past five o’clock,” she said “you gotta come back tomorrow.

Doesn’t that kind of thing just piss you off?

Everyone has dealt with some low-grade government flunkie who has given us some bullshit reason why they can’t just do one simple little thing that could make a problem go away. That day in Las Vegas, Ms. DMV spent more time and effort telling my girlfriend that she couldn’t accept the form than she would have expended by just taking the form and sticking it in the “in-box.” Drunk with her little bit of power, she refused.

Oh well. The ramifications of that pettiness? Jennifer had to wait in line again the next morning. It isn’t like she was deprived of her life or her constitutional rights.

On September 25, Michael Richard dealt with just the same kind of indifference. However, it cost him his life and his right to due process.

Mr. Richard was not a sympathetic figure. He was a convicted murderer in the State of Texas, and it looks like he did commit the crime. For that transgression, Texas sentenced him to lethal injection.

However, on that very morning, the U.S. Supreme Court accepted a case challenging the constitutionality of this method of execution. Richard’s lawyers sprang into action, furiously working on an appeal based on the Supreme Court’s acceptance of that case. After all, how the Supreme Court ruled on that case would certainly have strong implications for Mr. Richard. Murphy’s law intervened, the lawyers had some computer trouble, and they asked the Texas Court of Criminal Appeals to stay open for 20 extra minutes so that they could run the appeal down to the courthouse. (source)

Presiding Judge Sharon Keller refused the request. Mr. Richard received his lethal cocktail.

Even the worst judge I have ever met would have accepted such a request in a mere traffic violation case. I have never had a judge refuse a motion for an extension of time, not even in little civil cases. I have never heard of a judge refusing a request for an extension of a mere 20 minutes. Judge Keller herself told the Austin American-Statesman that her court “has accepted faxed briefs after closing time, as long as a printed copy is later provided to the judges.” (source)

But not this time.

I guess that Judge Keller doesn’t get paid overtime. Of course, at least three judges were working late that night anyhow — and Judge Keller didn’t even bother to ask them if they would stick around to accept a scrap of paper from Richard’s lawyers. (source) This is to say nothing for the fact that this “scrap of paper” was a petition for a man’s life.

If “lazy flunkie” is the right word to describe the Las Vegas DMV cashier, which word would you use to describe Judge Keller?

I don’t suggest that Mr. Richard should have gone free, nor that I feel badly for Mr. Richard. While I am strongly abolitionist with respect to the death penalty, I would not bother to write an entry about yet another person led to yet another state’s death chamber. I am desensitized to that issue, and it is not my particular fight. I am not overly-concerned with Mr. Richard’s plight, because he likely would have been executed anyway.

I am concerned about due process
— not just because Mr. Richard lost it, and thus his life (potentially in violation of his constitutional rights) — but because I want it for myself. And you? You should want it for yourself. You may never be a convicted murderer (and nor will I), but when a member of the judiciary behaves with such depraved and sick indifference something is broken, and something needs to be done.

Consider the gravity of the situation and the ridiculously light nature of the request. Imagine if you got to the head of the line a minute late at the DMV and the flunkie told you “sorry, I’m not taking your form because you are here late.” Dinner at your house that night would have started with an angry (and justified) rant about lazy and indifferent government employees. The next morning, you’d need to tell your boss that you need the morning off to go back to that same flunkie, sheepishly handing her your piece of paper that she just as easily could have taken the night before.

If that is a “1” on the “outrage-o-meter,” then this goes to eleven.

A man was about to die. Our highest Court was considering the question of whether the way he was to die was in violation of our beloved Constitution. The condemned man had a right to submit an appeal. Perhaps that appeal would have been denied after due consideration. Fine. Had that been the case, then his right to due process would have been preserved, and the system would mean something. The inconvenience to the State? Nothing. Perhaps Richard would have been put to death a day later, a week later, a month later. So what? In the end, he was not going to escape justice – but the constitutional issue deserved to be heard. No man’s life, not even a convicted murderer’s, should end because some flunkie at the DMV, or some depraved and unethical judge decides that it is time for her to go home without even asking her colleagues how they felt about it — and they were outraged as well.

Don’t take my word for it. “In an unusual move, several judges on the nine-member court, who were not consulted about Keller’s decision to close at 5 p.m., also went public with their criticism.” (source). Not only did Judge Keller slam the doors of the halls of justice, but her colleagues were inside, unaware, and apparently willing to at least listen to Richard’s appeal.

As unheard of as this denial of a 20 minute extension might be, public criticism of a judge by another judge? That’s about as rare as wings on a steer. For members of the same judicial body to come down publicly on one of their colleagues? That song has, to my knowledge, never been sung before. Judge Keller’s colleagues did not sing alone. Their the chorus included four former Texas Bar presidents and two former Texas Supreme Court justices. These are not positions you achieve by being a bleeding heart liberal or a death penalty abolitionist.

Now for the good news: The outcry actually changed things.

As a response to the public outcry, the Court instituted a policy that it will now accept electronic filing by sending emergency pleadings to a court email address. The pleading is then forwarded to a rotating on-call judge for consideration and distribution. Paper copies of the pleadings are due the following morning.

“Electronic filing is an improvement to the system, and it’s overdue and it brings Texas more in line with what courts are doing across the country,” said Andrea Keilen, executive director of the Texas Defender Service, which represented Richard.

“But it doesn’t change the heart of the issue: that this judge was more concerned about what time it was than whether Richard had a viable legal claim. This rule obviously can’t undo that injustice,” Keilen said. (source)

Indeed. I do hope that someone institutes proceedings to impeach Judge Keller. She lacks the temperament, judgment, and ethics to serve as a traffic court judge, let alone someone who holds the power of life and death over any citizen.

I’m not saying that she should be unemployed. A transfer to the DMV might be appropriate. There she can enjoy her desire to lord her power drunkenness over hundreds of people a day, without putting anyone’s constitutional rights in jeopardy.

Note: although the voting for ass hat of the month was closed as of the time of the writing of this post, I extended the deadline by a few minutes and Judge Keller emerged as the clear victor.

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