Johnson: Marty stood nearby as judges discussed surprise about lack of filings

Court of Criminal Appeals Judge Cheryl Johnson testified today that Ed Marty, the CCA’s general counsel on Sept. 25, 2007, stood only feet away from Johnson and Judges Tom Price and Paul Womack when those judges were discussing their surprise that Michael Richard’s counsel had not filed pleadings for him that day. Johnson was the assigned judge for Richard’s execution, meaning any communications about his execution should have gone to her under the CCA’s execution-day protocol, Johnson testified. According to Johnson’s testimony, this conversation took place around 5:30 or 5:40 p.m. on the day Richard was executed. Richard’s lawyers had been working that day, Sept. 25, 2007, on a motion for stay of execution and a writ of prohibition, which never were filed in the CCA. The facts that Richard’s lawyers did not file his pleadings and Richard was executed are at the center of the ethics charges the State Commission on Judicial Conduct brought against CCA Presiding Judge Sharon Keller in February. Johnson, the first witness in Keller’s hearing on the ethics charges, testified that Marty stood near her and the two other judges as they were discussing their surprise at the lack of the filing. Chip Babcock, Keller’s lead counsel and a Jackson Walker partner in Dallas, used a measuring tape to determine how far away Marty had stood: 5 feet, 8 inches. Babcock asked Johnson if she had asked Marty whether anything had been filed. Johnson said she did not ask him because she thought he would have called her if there had been a filing. Babcock then said, “Just like Judge Keller assumed he would tell you.” To which Johnson replied, “I don’t know what she would have assumed.” Marty is not testifying at the hearing; lawyers will present his testimony through a deposition later this week.
-- Mary Alice Robbins