Helping Trial Lawyers Navigate the Appellate System

Lawyers to Push CCA for E-Filing in Death Penalty Cases

Austin Lawyer Chuck Herring is circulating a petition to be submitted to the Court of Criminal Appeals (download PDF here), along with the following message:

RE: Rule-Making Petition To Permit E-Filing in Death Penalty Cases

You may have seen the extensive press reports concerning the recent actions of Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals.  In a death-penalty case (Richard), she allegedly refused to permit Mr. Richards lawyers to file papers after 5:00 p.m. on the very day when he was scheduled to be executed.  The lawyers computer had crashed, and they asked for only a twenty minute extension of time to permit the filing which ordinarily the Court grants routinely in death penalty cases when execution is imminent.  On that same day the United States Supreme Court had granted certiorari review on the same point that Mr. Richards’s lawyers attempted to raise on his behalf concerning the constitutionality of lethal injection.  Thus, almost certainly a stay of execution would have been granted if Judge Keller had permitted the filing.  She also concealed her unilateral ruling from other judges on the Court, some of whom have publicly criticized her conduct.  As a result, Mr. Richard was executed at 6:00 p.m.on a day when he should have lived.

The press has reported that some twenty prominent Texas lawyers—including a former Bar president and various law professors—have filed a judicial disciplinary complaint against Judge Keller.  Press coverage and editorials across Texas, the country, and even in other nations, have condemned both Judge Keller’s actions and the Texas system of justice. . . .

The Richard case dramatizes a glaring deficiency in the Courts procedures:  the Court does not permit e-filing (filing by electronic means).  Many courts and agencies, of course, permit e-filing.  Some require e-filing.  If the Court of Criminal Appeals had permitted e-filing in the Richard case, his lawyers would have been able to file the papers even by the 5:00 p.m. deadline that Judge Keller unilaterally imposed.

Therefore, to help avoid a recurrence of such a tragic, unnecessary execution, lawyers across Texas are joining together to petition the Court to adopt a rule to permit e-filings in death-penalty cases.

Please take a moment to review, sign, and return the attached petition, so that we can help avoid another similar malfunction of justice—and please circulate this petition to other attorneys who may be willing to sign the petition.

Please mail or email (pdf) completed petitions for delivery by Wednesday, October 24th, to:

Chuck Herring
Herring & Irwin, L.L.P.
1105 W. 12th Street
Austin, Texas 78703

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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