During a capital murder trial hearing Friday, District Judge Ken Keeling showed little restraint in commenting on a higher court recently telling him that he was wrong.

Keeling met with attorneys in the death penalty case of John Ray Falk Jr. -- which was moved from Walker to Brazos County based on a change of venue request -- for the first time since proceedings were stayed nearly two months ago on the morning that closing arguments were set to begin.

The delay -- jurors are set to return Monday -- was sparked by a request by Walker County District Attorney David Weeks and assistant attorney general Jane Starnes, who argued that the legal instructions Keeling intended to give jurors before heading into deliberations would have raised their burden of proof.

"If they want to go get another mandamus, let them go do it," Keeling said, referring to the prosecutors.

"I'm too damn old to be afraid of anything," the 73-year-old judge told prosecutors.

Keeling made reference to the state requesting the mandamus relief -- an appeals motion rarely used by state attorneys in criminal trials -- more than five times during the hearing.

Twice, after overruling state objections to the charge, he remarked to prosecutors, "Go get your mandamus."

Falk's trial was put on hold Dec. 4, five minutes before attorneys were set to deliver closing arguments in the guilt-innocence phase.

The 45-year-old is accused of being party to the killing of Susan Canfield, a 59-year-old correctional officer, in September 2007 while escaping prison with fellow inmate Jerry Duane Martin.

Martin was sentenced to death in 2009 by a Leon County jury who found him guilty of driving the inmates' escape truck that struck Canfield, who died on scene from head injuries after being knocked off her horse and onto the hood of the vehicle.

The trial was stayed by the 10th Court of Appeals after prosecutors filed an appeal asking that Keeling be instructed to amend the jury's instructions on how the law could be applied in arriving at a guilty verdict.

Having their original request denied, state attorneys looked to the Texas Court of Criminal Appeals, which voted 7-2 to grant relief and order Keeling to amend the charge that prosecutors had argued was too limited and added to their burden of proof.

Keeling repeatedly mentioned the appellate court Presiding Judge Sharon Keller, facetiously saying at one point during arguments over wording in the jury instructions that "short of getting Judge Keller on the phone, I don't know how to resolve this."

About 20 minutes into the hearing, while Keeling was having a friendly aside with defense attorneys, Canfield's daughter walked out of the hearing. She eventually returned but still had tears in her eyes when the proceeding was over in the afternoon.

Falk stayed silent throughout the hearing, sitting behind his three attorneys.

"Why don't we just go over this damn thing paragraph by paragraph," Keeling said of the legal document that's caused so much argument and delay.

It took about an hour and a half for lawyers and the judge to get through the 27 pages of jury instructions, which drew objections from both sides along the way.

Before that, Michelle Esparaza, one of Falk's three local attorneys, outlined the main defense objections to the criminal appeals court's ruling, saying that it went against the U.S. and Texas constitutions, among other things.

"The Court of Criminal Appeals has violated every concept of due process and violated the law as we knew it to be and as we should have been allowed to rely on when the state is seeking state sponsored execution of somebody who is accused as a party," she said.

While Falk's defense team -- which also included Kyle Hawthorne and Lane Thibodeaux -- didn't hide its disappointment with the high court's ruling, the lawyers' comments were focused on the legal issues at hand and objections being made.

"There's no question of a tragic result, the question is sufficiency of evidence," Thibodeaux said while making an argument for a directed verdict -- a motion Keeling said he'd rule on come Monday.

That's also when the judge will let attorneys know if he'll be interviewing jurors individually before the trial resumes.

Both sides agreed the interviews would be helpful in determining if the jurors could remain impartial despite the long break.

More defense objections to the jury's instructions are expected Monday as well.

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(2) comments


What a cranky old judge!


Well no matter the verdict or ultimate punishment, this one will be appealed to the supreme court. Justice delayed is justice denied, to all parties.

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