HOUSTON (CN) - The wife of Michael Richard, who was executed on Sept. 25, claims Texas Criminal Court of Criminal Appeals Judge Sharon Keller violated her husband's constitutional rights by refusing to accept an appeal a few minutes after 5 p.m. that day, despite repeated requests from his attorneys. That morning the U.S. Supreme Court granted writ of certiorari to determine whether the form of lethal injection that killed her husband is cruel and unusual punishment, but Keller refused to accept the appeal anyway.
"On September 25, 2007, Judge Keller ordered the clerk of the CCA not to accept any paperwork concerning Michael Richard after 5 p.m.," Marsha Richard's attorney, Randall Kallinen, claims in his federal complaint. "Prior to 5 p.m. Michael Richard's attorneys made it clear to Judge Keller, the clerk of the CCA, and others that the appeal paperwork was forthcoming but that, due to circumstances beyond their control, the paperwork would be filed a few minutes past 5 p.m. Because of the action of Judge Keller and other unknown government employees and officials (the John Does) the appeal was not accepted by the CCA and Michael Richard was executed. At least three other CCA judge were waiting after 5 p.m. for the appeal so that they could rule on it, not knowing that Defendant Keller had stopped the filing of the appeal. Previously other death penalty appeals had been considered after 5 p.m. by the CCA.
"Every scheduled execution in the United States after Michael Richard's has been stayed because of the writ of certiorari granted by the Supreme Court of the United States, including all scheduled executions in Texas. No law or rule gave Defendant Keller the authority to close the court to prevent the appeal."
Richard claims Keller violated due process, that she is not immune from being sued because her acts were ultra vires, that her arbitrary and capricious acts violated the U.S. and Texas Constitutions, and caused the plaintiff emotional distress and caused her husband's wrongful death.
Keller was elected in 1994 on a campaign platform that the Court of Criminal Appeals was too lenient in enforcing the death penalty. During her term on the bench, 321 people have been executed in Texas.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.