Day Two of the trial of Judge Sharon Keller had Keller herself testifying.
Rapid-fire questions from Austin lawyer Mike McKetta, acting as the prosecution, drilled into the heart of the charges against Keller — that by violating the court’s established procedure, the judge denied death row inmate Michael Richard his day in court and brought discredit upon the judiciary.
The questioning put Keller on the defensive, a contrast from earlier testimony that saw defense lawyer Chip Babcock attack the truthfulness of witness David Dow, Richard’s primary appellate lawyer.
I’m going to point you now to the Focal Point blog, which has nicely extensive recaps of both Dow’s testimony and Keller’s testimony, as well as the testimony of Texas Defender Service paralegal Liz Waters, who went first. Texas Lawyer and Tex Parte also have more. Reading all of this, I get the impression that Keller was at best not exactly troubled by the subtleties of her job description, and that if she had given a moment’s thought to what was actually happening, in the context that it was happening, all of this could have been avoided. Whether that’s enough to get her removed from the bench or not I couldn’t say, but it seems clear to me that her actions, or lack of same, were the root cause here.
Putting it simply, her defense seems to rest on the notion that she was merely answering a question about whether or not the clerk’s office was closed, she wasn’t addressing the matter of whether or not the court would consider an appeal that came in a bit late.
McKetta began his questioning of Keller by focusing on the Court of Criminal Appeals’ execution-day procedures, which state: “All communications regarding the scheduled execution shall be first referred to the assigned judge,” who is chosen by rotation to handle all last-minute filings in capital cases.
The policy specifically lists “pleadings, telephone calls, faxes, e-mails and any other means” as pertinent forms of communication.
Even so, when the court’s then-general counsel Ed Marty telephoned Keller at 4:45 p.m. — saying Richard’s lawyers had requested to file an appeal past 5 p.m. — Keller did not refer the request to Cheryl Johnson, the judge assigned to Richard’s case.
Keller testified that she did not believe the request fell under the court’s rules because it was an administrative matter — a question about whether the clerk’s office should stay open late — and not a substantive question relating to the merits of Richard’s case.
“I think it’s a close call, but I think that’s right,” Keller said.
Keller also acknowledged that the court’s nine judges had been told, via an e-mail from Marty, that Richard’s lawyers were preparing an appeal based on that day’s news from the U.S. Supreme Court, which accepted a case challenging lethal injection as cruel and unusual punishment.
McKetta also attacked Keller’s assertion that she only closed the court clerk’s office, not the court, because appellate rules allow lawyers to file briefs with any judge willing to accept them.
McKetta, however, noted that the same appellate rules also state: “Parties and counsel may communicate with the appellate court about a case only through the clerk.”
Once again, I will say that if this were an issue before the Court of Criminal Appeals, there is no doubt in my mind that Judge Sharon Keller would reject the logic that Defendant Sharon Keller is using. Judge Sharon Keller would insist that Defendant Sharon Keller should have known better and acted accordingly, and is deserving of no relief from her court for not having done so. I can only wonder if this has even occurred to her.
There will be more testimony from Keller today, and after that I presume the prosecution will rest and the defense will call whatever witnesses it has. It’s possible things could be wrapped up by the end of the day, or at least that testimony will be finished and summary arguments will be made tomorrow.