Monday, March 9, 2009

This gun for hire

Posted By on 03.09.09 at 12:41 PM

The Chicago Tribune nearly won a Pulitzer Prize for a two-part series published in 2000, "State of Execution: The Death Penalty in Texas." The principal reporters were Ken Armstrong and Steve Mills.

The articles excoriated the Court of Criminal Appeals of Texas, the state's highest criminal court, for repeatedly failing to do its duty as "the state's court of last resort, a gatekeeper that is supposed to remedy injustice, correct fundamental errors that occur at trial, and ensure that convicted defendants receive a fair hearing on appeal...

"To handle Death Row appeals, the court has appointed attorneys with previous disciplinary records or little experience. In its rulings, the court has frequently proved tolerant of flawed convictions and reluctant to acknowledge holes in the prosecution's case.

"The court has even refused relief to a convicted rapist, Roy Criner, even though DNA testing conducted after trial showed the semen found in the victim wasn't his. The case is so problematic that one judge who voted with the majority told the Tribune he now believes his vote in the case was wrong and Criner should get a new trial."

Criner got lucky. He eventually was pardoned by Governor George W. Bush.

As the Tribune noted, the opinion that denied Criner a new trial was written by Judge Sharon Keller, who the paper said "has in many ways come to epitomize the current appeals court and its handling of cases." Since shortly after "State of Execution" was published, Keller has been the presiding judge of the Court of Criminal Appeals, and now she's back in the news. An article on Judge Keller in Sunday's New York Times recalled the Criner decision, which it said highlighted what her critics see "as her strong and habitual bias for the prosecution. Many Texas defense lawyers describe her as a law-and-order zealot who rejects most appeals out of hand."

The article, which also quoted admirers who praised her ethics and judicial temperament, was written because the judge is in big trouble. The morning of September 25, 2007, the U.S. Supreme Court announced that it had accepted a Kentucky case challenging the constitutionality of execution by lethal injection. By happenstance, Texas was planning to put a condemned man to death in just this way that evening. When lawyers for Michael Richard, who'd confessed to rape and murder, found out what the Supreme Court had done, they immediately began preparing an appeal that asked Texas to postpone the execution until the Supreme Court ruled. But computer difficulties slowed their work, and when they saw that they wouldn't be able to hand-deliver their appeal to the clerk of the Court of Criminal Appeals by the time the office closed at 5 PM, they called ahead and asked for an extra 20 minutes. A court official passed on the request to Judge Keller, who'd already gone home. "We close at 5," she replied. Richard was executed that night.

Last month the Texas Commission on Judicial Conduct served notice to Keller that it was charging her with incompetence, violation of her duties, and conduct discrediting the judiciary. It quoted the Houston Chronicle as saying the Richard matter "put a stain on Texas justice that can only be cleaned by the removal" of Judge Keller, the Dallas Morning News as saying it "evinced a relish for death that makes the blood of decent people run cold." 

Keller denies the charges and has hired a lawyer. There will be a public hearing, and in the end the judge could be thrown off the bench.

Unless the Chicago Tribune's online archives are misleading, the Tribune editorial page had nothing to say in 2007 about the execution of Michael Richard. The time had apparently passed when it was preoccupied by prosecutorial and judicial misconduct, a time when its coverage  -- primarily reported and written by Armstrong, Mills, and Maurice Possley -- gained it the enmity of prosecutors across America. In 2000 prosecutors went so far as to lobby the Pulitzer Board to keep the Tribune from winning journalism's highest honor. That year a 1999 series by Armstrong and Possley, "Trial & Error -- How Prosecutors Sacrifice Justice to Win," and a 1999 series by Armstrong and Mills, "Failure of the Death Penalty in Illinois," were entered together and named a finalist in the public service category. A year later, "State of Execution" was a finalist in national reporting. In 2003 the Tribune broke through -- Cornelia Grumman won a Pulitzer for a series of editorials on death penalty reform.

In 2000, Armstrong and Possley (who have both left the Tribune), and the Tribune were sued for malicious defamation by Thomas Knight, a former Du Page County prosecutor who'd been pounded by the Tribune for years over that county's misbegotten prosecution of the wrong men for the 1983 murder of Jeanine Nicarico. Spotting a minor mistake in "Trial & Error" that he felt put him in a bad light, Knight took his tormentors to court. 

Taking no chances, the Tribune reached all the way to Texas for a lawyer. I described Charles "Chip" Babcock as "a First Amendment specialist hailed in Texas as the best there is; six years ago he represented Oprah Winfrey when grousing Texas cattle barons sued her over a comment she'd made on TV about American beef and mad cow disease. Winfrey routed the cattlemen."

At the trial in 2005, Babcock routed Knight too. Afterward I wrote (last item), "Having doled out a couple million dollars in legal fees to save itself from humiliation at the hands of Thomas Knight, the Tribune was simply getting what it paid for when its hired gun out of Texas, Chip Babcock, brought his closing argument to a rousing climax. Even so, his finale was a tonic to the journalists who stuffed the courtroom. How often does someone say that what they do is worth doing?"

Before he began his summation, Babcock had put a bound copy of the "Trial & Error" series on each juror's chair. Now he called the series to their attention. He said, "I encourage you at some point during your deliberations or at some other time--these are yours to keep--that you spend the time to read this series. It is important award-winning journalism and is shedding light on our societal problems so that people like Steve Buckley [the only one of the three defendants in the Nicarico case who wasn't originally sentenced to death] don't have to spend three years in prison when they are innocent."

He went on, "What a defamation case is about is, as Mr. Knight said, deterring people from doing things. I wrote down what he said. I wrote it in red. 'I want you to award punitive damages,' he said, 'so that the Chicago Tribune doesn't do this again.' And God help us if the Chicago Tribune doesn't do this again. Because our society needs newspapers studying our problems. Prosecutors are immune. The government is powerful. It's the media and the newspapers that keep a check on government excesses, and that's exactly what they were doing here.

"And there is an innocent mistake that was made that has given this man a hook to sue us and keep us all here for three weeks. And that is his right. We respect this process, and we thank you from the bottom of our hearts for engaging in it. But we can respect this process, but not his lawsuit. And we have no respect for his lawsuit."

Babcock's newest client is Judge Sharon Keller.


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