Co-Op contributor Frank Pasquale put Texas Court of Criminal Appeals  Judge Sharon Keller back in the saddle again by questioning whether she had a choice given “the Supreme Court’s  5-4 decision in Bowles v. Russell ,” which “ dismiss[ed] the appeal of a convicted murderer because it had been filed two days late, even though it had met a separate deadline set by the trial judge.”

While coming a little late to the Killer Keller party, already the subject of castigation at  Grits for Breakfast and Defending People, news of Judge Keller’s slamming the courthouse doors shut at 5 finally reached the New York Times.  Thus, the question arose:  Was Judge Keller just following orders?

First, the simple answer.  No.  Federal filing has nothing whatsoever to do with the filing requirements of the Republic of Texas, a sovereign nation state.  As an aside, the Keller issue had to do with the doors closing at 5, not filing a few days late.  In Texas, there was an assigned judge sitting in chambers awaiting the papers, unaware that the presiding judge had ordered the courthouse doors shut and locked tight.

But Bowles is worth a look all on its own for a different reason.  As opined by Justice Thomas, the “taking of an appeal within the prescribed time is ‘mandatory and jurisdictional,” over Justice Souter’s dissent that this rule has been repudiated no less than three times.  Maybe Justice Thomas was away on his book and television tour didn’t get the memo?

This cavalier attitude toward killing people has got to raise some concerns.  When filing requirements trump the review of a death sentence, we have reached the epitome of callousness.  This is a system of justice run by grocery clerks, whose adoration of the rules exceeds all reason.  When life and death are taken so lightly that a few hours, or even a few days, allows people to sleep soundly knowing that they’ve done their job, we are on the cusp of losing our humanity.  Perhaps it’s already gone.

We see this elevation of rules over substance everywhere.  It’s not that rules have no place, as they allow us to function in an orderly fashion.  But there are some things that are more important than blanket rules, and are sufficiently unique that they overcome the need to rules so strict that we would rather wrongly put a person to death than allow a rule to be bent or broken.  Life doesn’t always happen in such an orderly fashion that it can accommodate the rules.  Nor, apparently, does death.

But what’s so wrong with having immutable rules, even when it relates to death?  Actual innocence.  Have we learned nothing from DNA reversals, where a decade or two later a defendant is exonerated?  Are we so willing to ignore the fact that are system is less than perfect, such that we make horrific mistakes?  And yet, the innocent person, like the guilty, gets shut out of the courthouse because of these rules.  Some people think this is the price we have to pay for our “free” society.  Until it’s someone they care about who finds themselves standing on the wrong side of the courthouse doors.