Sharon Keller, Troy Davis, and the Duty of a Death Case Judge
	By STEVE SHEPPARD
	Monday, August 24, 2009

No obligation of a judge is more awful than to rule on who should live and who should die at the hands of the state. No process more defines the American legal system: We put our worst criminals to death, but we do so while protecting rights under the law. Though the jury's sentence is the fulcrum of every decision, no person may die without a legislative decree that their conduct deserves death, and without judicial approval of the conviction and the sentence.

Many judges grow weary and callous from the endless claims of America's three thousand death-row inmates, of whom a dozen are yet scheduled to die in 2009. In 1996, Congress, angry with the slow pace and high costs of execution, passed the Antiterrorism and Effective Death Penalty Act ("AEDPA"), creating new technical rules to speed the guilty on their way.

Yet the law, the judges, and especially the people in whose name all this is done, can never allow a single case to escape the most perfect scrutiny possible, or the law jeopardizes its deepest claims to authority and trust. We—officials and citizens—have a duty to ensure that the protections of the laws are secure, and that we execute only the person guilty of the crime accused. Otherwise we violate the American commitment to freedom, truth, and the rule of law.

Two cases last week illuminated the dangers of callousness, of technical limits to scrutiny, and of speed in itself. At the same time, their stories offer hope that the judicial duty of scrutiny and the commitment to truth and freedom persist in U.S. law.

Story One: Michael Richard and Sharon Keller

On September 25, 2007, Michael Wayne Richard said, "I would like for my family to take care of each other. I love you Angel, Let's ride. I guess this is it," and then died by lethal injection. Few Texans would mourn him; Richard was executed for his confessed rape and murder of nurse Marguerite Dixon, after which he traded the murder weapon for cocaine.

Texas has executed 34 people since then. Three hundred and thirty-eight sit on death row, with 10 more scheduled to die this year.

So it is unusual that Texas will hold a hearing concerning Richard's case this week. Moreover, the hearing is all the stranger because the defendant is Richard's judge. Or, not his judge; that is the problem.

The problem arises because on September 25, 2007, the United States Supreme Court agreed to hear Baze v. Rees, a challenge, coming from Kentucky, to the constitutionality of the same execution procedure that was and is also used in Texas. Throughout the United States, every execution was stayed, until the Court ruled on April 16, 2008, that Kentucky's procedures did not amount to cruel and unusual punishment and thus could continue to be employed. The lone exception to the stays – the only U.S. execution that occurred while Baze was before the Court – was the killing of Michael Richard that day.

On the day of Richard's death, his lawyers prepared a motion for a stay based on the Baze opinion, which they had received that same day. But the motion was never heard in the Texas Court of Criminal Appeals, because the brief was not ready by 5:00 p.m.

The brief's lateness would not, usually, have been a problem because the court can grant an extension of time. But Judge Sharon Keller, the Presiding Judge of the Texas Court of Criminal Appeals, apparently refused the extension. For Judge Keller, the office closes at 5:00. If the lawyer is late, so is the client.

Even in Texas, this was enough to make folks do a double-take, and last week, Judge Keller was before a special master of the Texas Commission on Judicial Conduct, whose initial investigation led to charges of misconduct against the judge. Judge Keller argues that she was not required to grant an extension and says that, rather than regretting her conduct, she would deny the stay again if presented with similar circumstances.

The key to Keller's case, now, is whether a lawyer then could appeal directly to a judge after hours, or had to first file the papers with the clerk and then appeal. Judge Keller now argues that Richard's lawyers could have called another judge at home after hours. Though she did not tell Richard's lawyer this, she now says that when she told the lawyers they were too late, she meant only that the clerk's office had closed; the court stayed open. However, the rules of the court were then unwritten, and her denial was broad enough that Richard's lawyers thought the door to the court was closed to them at 5 p.m. Richard was put to death that night.

Story Two: Troy Davis and John Paul Stevens

In the middle of the night of August 19, 1989, either Troy Davis or Redd Coles killed Mark MacPhail, an off-duty policeman who saw the two men beating up a homeless man. Davis and Coles each blamed the other for MacPhail's murder. In 1991, Davis was convicted of the death and sentenced to die, based largely on the testimony of nine witnesses, one of whom was Coles.

By 2001, Davis's death sentence had long ago been upheld on appeal, but Davis's lawyers sought habeas corpus on the basis of new evidence of actual innocence: Seven of the nine witnesses against Davis had recanted their testimony, and new witnesses corroborated Davis's story.

However, the 2001 habeas petition was barred under the AEDPA because no procedure at Davis's trial had violated the constitution. Under the AEDPA, even proof of a demonstrably wrongful conviction of an innocent person is no basis for relief in a second habeas case. Accordingly, Davis's efforts to achieve review of the new evidence have failed, despite support from many quarters.

This week, however, the U.S. Supreme Court granted Troy Davis's direct petition for habeas corpus, ordering that a hearing be held for the Court by the U.S. District Court in Georgia. (The AEDPA did not affect Supreme Court jurisdiction.) Noting the incredible rarity of such an order, Justice Scalia correctly observed that the Court "has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

Even so, an order did issue, on the apparent basis of Justice Stevens's argument (joined by Justices Ginsburg and Breyer) that since no court had reviewed the 2001 evidence on the merits, "[t]he substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing."

The Perils of Allowing Technical Rules to Reign

In both Richard's and Davis's cases, the stories continue (even if for Richard himself, the story is over). In each, the central question is this: what must a judge do to ensure the lawfulness of an execution?

The danger is that technical rules will overcome the moral demand of the law. The desires for speed, for ease, and for economy can overcome the needs for certainty, for truth, and for care in the application of the law.

That danger is clear in Judge Keller's case. As she says, last-minute death cases "tend to be voluminous and meritless." But not this time. By splitting the hairs of unspoken and unwritten procedure in order to close the door to Richard's case, Keller also closed the door on a legitimate claim that the means of Richard's death would be unconstitutional. Whatever the result in her disciplinary hearing may be, the truth is clear: Judge Keller hid behind technicalities to avoid the substantive review.

Likewise, the judges at Troy Davis's 2001 hearing, and every hearing since then, have been technically barred from considering the evidence of his innocence. He says he did not pull the trigger, and the state's witnesses who convicted him say they lied. But that evidence has been kept from review by technical rules.

The Duty of the Death Case Judge

The technical rules of law are not an end in themselves, but a means of assuring fairness between the parties and the substantive fairness of the law. Judges who rely on such rules to avoid the merits, and legislators who demand they do so, betray the judicial obligation to ensure justice.

In a death case, this obligation is put into high relief. The law ought not to allow a person to die because a brief is half an hour late, or because evidence is found after a first habeas petition is denied. Every juror who relied on the wrong evidence, every judge who signs an order, every citizen who obeys this system must have confidence that the person who dies deserves to die. There is no solace in killing the innocent by fair techniques.

Innocence in a death case must prevail over all technicalities. That Judge Keller must answer for her technical foul is right, even if she is not punished for it. That Davis will finally have his hearing is essential, even if the evidence is found insufficient.

What the technical problems in both cases suggest, though, is more significant. Justice Scalia is right: We have never read the Due Process of Law to guarantee that someone demonstrably innocent shall not be put to death. Yet that, at its heart, is what the law must demand.

Steve Sheppard is the Judge Enfield Professor of Law at the University of Arkansas School of Law and author of I Do Solemnly Swear: The Moral Obligations of Legal Officials, just released by Cambridge University Press, among other works..