Jim Harrington has been working to promote civil rights in Texas since he graduated from law school in 1973. As the Director of the South Texas Project in the Rio Grande Valley, Harrington worked with farm workers and poor people, especially in the colonias, to assert their rights. He worked on major cases involving police brutality, discrimination and United Farm Worker organizing. A decade later he moved to Austin as the Legal Director of the Texas Civil Liberties Union Foundation, Inc., to work on similar issues. In 1990, he founded the Texas Civil Rights Project, which promotes social, racial and economic justice and civil liberties for poor communities in Texas.

Jim Harrington and TCRP became involved in a 2007 capital case after a Texas judge, Sharon Keller, refused to delay the closing of her clerk’s office by a few minutes on the day an execution was scheduled for Michael Richard. His lawyers had requested extra time due to computer problems. Her refusal resulted in Richard’s execution later that evening.

Can you tell us a little about what happened in the case of Michael Richard and Judge Keller?
The only issue that we were involved in at all in this case was the question of not having a hearing, on the denial of the hearing—closing the courthouse down. We became aware of it when the issue broke in the press and then his [Richard’s] daughter called us, she was actually referred to us by another lawyer, and we decided at that point that this was an egregious enough due process issue that we should do something about it. Even though the law wasn’t particularly favorable to us because of the kinds of immunities that judges have, we still decided that it was important to do because of the gross, or grotesque miscarriage of justice that occurred.

So, we actually ended up with a three-pronged approach. One was to sue Judge Keller herself—number one. Number two was to seek her removal or discipline through the Judicial Conduct Commission, which we thought probably would be the better shot at getting something done. The third was to address the overarching issue, which was the fact that this court had no e-filing—where you can file your legal documents electronically. Virtually all the appellate courts throughout the country do this. This court was distinguished or undistinguished by the fact that it was one of the few that didn’t allow e-filing, particularly in emergencies like this. The lawyers could have just sent it [the appeal] directly to the court and they wouldn’t have had any problems.

On the third issue, on the electronic filing, we did that by petitioning the court. We got 326 lawyers, if I’m not mistaken, to sign on to this petition to the court, to institute electronic filing in capital cases. That was quite a spectrum, a cross-section of attorneys throughout the state. Even attorneys who strongly believe in the death penalty signed it because they strongly believe in due process. And then, we ended up with about 30 lawyers altogether filing the petition with the Judicial Conduct Commission. On the Federal case [suing Judge Keller herself], the judge eventually dismissed that because of judicial immunity. We all recognized that that was the weakest point. Courts aren’t disposed to second guessing what a judge does because that gets into judges second guessing judges all over the place. They have pretty strong immunity. But we wanted to make the point just in case there was an opening there.

The Judicial Conduct Commission decided about a month ago to bring 7 charges against Judge Keller. What was her response?
She asked for more time, ironically.

What do you think will happen now? How much more time will it take?
That’s a good question. I mean this is unprecedented in Texas history, so nobody actually has a clue where this thing is going to end up, at this point. I think the good thing is that the Commission has accepted an offer of pro-bono outside assistance—that is, a law firm is going to help prosecute the case without charging the Commission. I think you rarely see that happen. It’s very interesting. It’s already been two years, and because it’s in legal process, it could go another two years before it gets resolved. That would not be unusual.

Have there been any long-term effects from this case on the handling of death penalty cases in Texas?
You can’t point to anything specifically related to this particular case other than, of course, it’s going to make the Court of Criminal Appeals, I think, clearly pay more attention to these appeals. But over the last two years, there’s been a noticeable change in public opinion, with respect to administering the death penalty in Texas. I think there are two things going on that have contributed to that. One is that juries now have the ability to levy life without parole, so you can send somebody away forever without parole. It’s a relatively new option. The other thing that’s going on is that, of course, it’s extremely costly to prosecute death penalty cases. So you see smaller counties and even some of the larger counties not seeking the death penalty but seeking life without parole.

Is it costly because of length of appeals process?
No, that’s part of it, but also the jury selection process is very different. It takes a long time. You do one person at a time, as opposed to a group of people. So that’s very lengthy. And then you have, as you say, all of the appeals that go on. Then, theoretically, you’re going to spend a lot more time developing the case because of the consequence of execution if the case is lost. So there is more investment into the case development. There are a variety of factors. What also happens is that you tie up the court, because it’s such a lengthy process. And when you tie up a court, it basically means you have to create another one to handle all of the caseloads. The caseload is generally pretty enormous for a judge. And so, if you have somebody who is doing nothing but a capital case, then you’re essentially going to have to have another judge there to handle all the other cases. You can do that either by creating a new court or by bringing in visiting judges to sit. But in any respect, it is going to compound the cost that is caused by the capital punishment trial.

Is it true that in the mid-1990’s, a shift in the party affiliation of judges led to a shift in the appeals process?
That’s true, but let me qualify that for you. It is true when the shift occurred in the court system, where we went from the Democratic majority, let’s say, to the Republican majority, there was a very pronounced ideological shift in the courts too. It was reflected by Sharon Keller and the court of criminal appeals—all of those judges are what you might call very, very, conservative. That is not to say, that prior to that shift, even among the Democratic judges, there wasn’t support for the death penalty.

Was there the same reluctance to see through the appeals process?
I think what you would see happen before is that the judges look more seriously at the legal issues put before them with respect to the particular cases. In other words, what you see with Sharon Keller, and this is what was behind her attitude with respect to shutting down the courthouse, is that they basically were the final line in the rubberstamping of that process. Before that, when you had the Democratic majority—and again I say, this is the Texas version of the Democrats, which is pretty conservative—you still would have them look seriously at issues that were raised even if, in the end, they would have ruled against the defendant. They would still take the issues more seriously than what you see the current court doing.

To what extent do you think public opinion is shifting in Texas? Do you think there could be enough support for a moratorium?
No, not in Texas. But you do see, I think, the DNA issue that has happened around the country. A lot of people on death row, convicted of crimes, have been found to be conclusively innocent. I think it’s helped shape popular opinion. I think, again, when juries have the option of sentencing somebody to life without parole, that happens because people sometimes have personal ambiguity about the death penalty. Then you have the social questions that are up front because of the DNA testing. I think all of that compounds the issue, but I don’t think you can point to anything in particular as a turning event. Nor is there anything real solid in terms of survey or statistical analysis to see exactly how everyone is thinking right now, other than these general ideas that are pretty commonly accepted to account for the change in attitude.

Has there been any response to the abolition of the death penalty in New Mexico ?
No. Not that I’m aware of. You’re not going to see legislative change in Texas for quite a while I’m sure.

Past Close Up Articles

Prof. Brian Levin, Director, Center for the Study of Hate and Extremism
Juliana Rotich, Program Director, Ushahidi.com
Christina Iturralde, LatinoJustice PRLDEF
Anene Ejikeme Assistant Professor, Trinity University
Alexander Verkhovsky, Director, SOVA Center for Information and Analysis (Moscow)
Innokenty Grekov, Human Rights First
Paul St. Clair, Executive Director, Roma Community Centre
Rev. Allan Ramirez, Latino Advocate
Dr. Agapito López, M.D.
Bill Habern, defense attorney
Anya Cordell, activist
Rais Bhuiyan, survivor
Allison Moore, Volunteer