Should a Lawyer's Mistake Kill the Client?

There’s been some poorly reasoned counter-arguments bandied about the blogosphere regarding the push to have Sharon ‘Killer’ Keller sanctioned, impeached and/or disbarred for her refusal to keep the Texas Court of Criminal Appeals open an extra 20 minutes so that a request to stay an execution could be filed.

The argument boils down to this: the lawyers shouldn’t have waited until 5 o’clock to file their appeal – period, end of story. I responded before, in part, to this by writing:

What does Judge Killer have to say about it?

“You’re asking me whether something different would have happened if we had stayed open,” Keller said, “and I think the question ought to be why didn’t they file something on time? They had all day.”

Let me first address the .000001% of what she said that isn’t ridiculous.

Yes, lawyers for defendants on death row routinely try to time their appeals to be last minute… because several last minute stays can add life span for the client (as opposed to filing each petition as early as possible). And while I don’t handle death penalty appeals, I think those who do should learn from this: have everything ready days or weeks in advance, and then park outside the court with all the necessary paperwork to run in at the last minute, so to avoid last minute ‘technical difficulties’.

Oddly though, while being .000001% ‘correct’, Judge Killer manages to also be 100% wrong.

No, they didn’t have “all day” as they should. Last time I checked, 5:20 p.m. today is still… today.

Houston criminal defense lawyer Mark Bennett has written extensively on this subject as well:

Death penalty enthusiasts are chortling about Judge Sharon Keller's action in closing the courthouse doors to Mr. Richard. A common theme among their responses is "blame the lawyers." One [anonymous] sample, in comments to my first post on the subject:

Why didn't the lawyers who needed to file do so BEFORE the court closed????? That is the most ridiculous thing I have ever heard. She closed on time, so you're filing a lawsuit against her?

HELLO???? Is anyone out there?????

Apparently not. Get real. You're supposedly fighting for a man's life and are running 20 minutes late? What a JOKE!!!!!!!!

Here's Houston criminal defense lawyer Troy McKinney's (an HCCLA past president and, more importantly, my attorney) reply to the argument that Keller was just following the rules, from comments on today's Houston Chronicle editorial calling for Keller's ouster:

The Supreme Court of the United States did not grant certiorari on the case involving the chemicals used in the death solution until that day. There were not days and weeks to prepare. There was less than one full day. As I understand it, it took until afternoon to get the materials that were used to obtain the review in DC and then the rest of the afternoon to draft the materials for the Court of Criminal Appeals. Although the Texas Supreme Court allows email or fax filing of emergency matters, Judge Keller also refused to allow the petition and motion to be filed by fax or email. The court even refused to allow a single copy to be filed immediately and the remaining 11 required copies (of the several hundred page document) to be filed shortly thereafter. At 5:20 p.m., when it was ready to file, the doors to the clerk’s office were locked so there was no way to get it to the people at the court (including in the clerk's office) who were still at the court.

Never before has the Texas Court of Criminal Appeals not been available on the day, evening, or night of an execution to accept whatever, if anything, was to be filed -- unless they were told in advance that nothing would be filed. Of course, here, Judge Keller through the clerk and staff was told that something would be filed and she made a conscious decision not to allow it be by closing the court and making the clerk's office unavailable.

The decisions made by Presiding Judge Keller are inexcusable.

The Harris County Criminal Lawyers Association is also filing a complaint with the Judicial Conduct Commission. There will be over 100 local lawyers who sign it.

I hope it’s clear from my previous posts where I stand on Judge Killer – on this issue as well as others. But let me make 2 points here.

#1) I still think it’s possible to argue that Michael Richard’s lawyers could have been more prepared. Yes, cert was granted that day, but the Supreme Court doesn’t just grant cert out of the blue. This case had been pending for awhile, including of course the request for cert. 

Lawyers should be up to date on the types of cases they are handling, whether initially before the trial stage, or in the post conviction/extraordinary remedy situation. Having said that, this was a pretty unusual situation, and I should have made it clearer that I’m not criticizing the lawyers in this particular case. My comments were meant partly as general advice – and were more specifically labeled as the one / one millionth of one percent of what was defensible of Judge Killer’s quote about her decision.

I’m no stranger myself to paranoia about missing deadlines, and I try to have several levels of safeguards in place to ensure that doesn’t happen. 

But, and this is the biggie…

#2) If it really really had been the fault of the lawyer, then the execution is even more – not less – inexcusable.

So, if as they claim the ‘lawyer should have known better,’ the pro-death penalty argument is truly senseless.

If you believe that the lawyer was the one to blame – rather than say a corrupt, lazy and intellectually dishonest judge – well…

Should the client DIE because his lawyer screwed up?

Is that what passes for ‘justice’ nowadays?

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Austin Criminal Defense Lawyer - June 23, 2008 10:55 PM
Last Fall the Texas Court of Criminal Appeals got some deservedly bad press for allowing the execution of a death row inmate to proceed because the appellate lawyers arrived at the courthouse door 20 minutes late.Mind you, the defendant had...
Comments (3) Read through and enter the discussion with the form at the end
Scott Greenfield - October 18, 2007 8:39 AM

Well said, Jamie. This cavalier attitude toward the death of a person, and the use of vapid excuses to cover the obvious flaw, should make every thinking person realize how low we have sunk when it comes to this issue.

Chicago Attorney - October 18, 2007 4:15 PM

Sounds like it needs to go back to appeals.

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