Judge Sued In Death Penalty Case

An executed man's wife filed a lawsuit Wednesday alleging that a judge violated his rights by refusing to keep the state's highest criminal court open late so his lawyers could file an appeal the day he was set to die.

Texas Court of Criminal Appeals Presiding Judge Sharon Keller refused to allow the court to stay open past 5 p.m. on Sept. 25 even though attorneys for Michael Richard had called and asked for extra time to file their appeal.

"I would ask her why she just couldn't wait a few more minutes. It wouldn't have cost her anything to do this," 43-year-old Marsha Richard said.

Keller declined to comment on the federal lawsuit, which also named "John Does" as defendants acting in their official capacities.

Michael Richard's laywers later unsuccessfully appealed his case to the U.S. Supreme Court on grounds that the lethal injection was unconstitutionally cruel punishment. The high court turned down the appeal because the lower court had not heard his case, said Randall Kallinen, Marsha Richard's attorney.

"Everybody is in agreement the appeal would have been successful if it had been allowed to be filed," he said.

Before it turned down the appeal, the Supreme Court had decided to review the constitutionality of lethal injection in a Kentucky case. Richard so far has been the only person executed in the nation since the Supreme Court made its announcement about the Kentucky case.

Keller is accused of violating an "open courts" provision of the Texas Constitution, causing Michael Richard's wrongful death and violating his Fourth Amendment right to protection against unlawful searches and seizures.

The lawsuit is asking for an unspecified amount of punitive damages and seeks a court order to be issued directing Keller, the Texas Court of Criminal Appeals' clerk and other court personnel not to stop emergency death penalty appeals from being filed.

The 11th Amendment gives states immunity from federal lawsuits. But Kallinen said Keller is not immune to a lawsuit because her actions violated established statutory or constitutional rights.

Michael Richard, 49, was executed for the 1986 murder of Marguerite Lucille Dixon, just outside Houston. She was raped and shot to death in her home by an attacker who then stole two televisions and a van from the house. Richard insisted he wasn't responsible for the woman's death.

Last month, a group of lawyers filed a complaint against Keller with the State Commission on Judicial Conduct, accusing her of improperly cutting off appeals that led to Richard's execution. On Tuesday, the criminal appeals court decided to allow emergency e-mail appeals in death penalty cases.

"I hope nothing like this happens to anyone else," said Marsha Richard, who married her husband five years ago after meeting him while she visited her brother, who was also on death row.

Meanwhile, in Florida, the state's highest court denied a stay of execution for Mark Dean Schwab, who was convicted of raping and murdering an 11-year-old 16 years ago. He is scheduled for execution Nov. 15.
By Juan A. Lozano