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David Berchelmann

Keller hearing today

Today is the day for the State Commission on Judicial Conduct to have its hearing on the Sharon Keller case and to decide what to do with the findings of the Special Master.

Today, prosecutors plan to argue that [Special Master David] Berchelmann’s findings were misguided and that the evidence showed Keller failed to perform her duties and cast discredit on the judiciary – both violations of the canons of judicial conduct.

Keller plans to argue that the special master’s criticism of her judgment were irrelevant to whether she violated judicial ethics, which Berchelmann found she had not.

Her attorney Chip Babcock said in briefs that Berchelmann’s findings “can only be read as an exoneration of her conduct.

We’ll see about that. It will likely be awhile before we hear from the Commission with their ruling. Austin Legal has more.

Objections to Special Master’s findings on Sharon Keller filed

Yesterday was the deadline for the examiner in the Sharon Keller case to file objections to the Special Master’s report. The examiner did have some objections, and they have now been filed.

The prosecutors’ objection said the special master who presided over the case, state District Judge David Berchelmann, focused on the “irrelevant” matter of what caused Richard’s execution rather than on what they said were Keller’s willful and incompetent actions.

Berchelmann faulted some of Keller’s behavior but maintained that she violated no laws. He said the Texas Defender Service — which represented Richard — bore “the bulk of fault for what occurred on Sept. 25, 2007.”

Berchelmann said Keller shouldn’t lose her job or be punished “beyond the public humiliation she has surely suffered.”

The Texas Defender Service earlier disputed Berchelmann’s characterization, and the prosecutors said Wednesday, “The issue here is not TDS’s conduct, but Judge Keller’s conduct.”

The prosecutors asked that the Commission on Judicial Conduct, which will consider the special master’s report, “determine such consequences to Judge Keller’s conduct as the Commission finds to be supported by the findings and to be just.” They said her conduct authorizes action under an article of the Texas Constitution that allows for discipline, censure or removal from office. Removal would require further proceedings.

I recommend you read the objections, or at least Grits’ summary of them. To put it bluntly, the examiner tore Berchelmann’s report up most impressively. For those of you who, like me, think that Keller has not been disciplined enough for her behavior, this offers some hope that she still may face real sanctions. It’s up to the Commission now.

What next for Sharon Keller?

We have the Special Master’s report on the Sharon Keller case, so what happens next? Grits reminds us:

The Judge was only empowered to make recommendations to the [State Commission on Judicial Conduct], which may still decide whether to dismiss the charges, reprimand Judge Keller, or recommend her removal to the Texas Supreme Court.

So what happens next? According to the Commission’s removal procedures (pdf), the Commission’s examiner (the equivalent of the prosecutor in the case) may file objections to the Special Master’s report within 15 days, which by my count would be Thursday, February 4 (though the examiner is also allowed to request an extension).

This will be a critical moment in the drama. If the examiner files objections to the Special Master’s findings – and I can think of plenty! – the the SCJC will hold its own hearing. Otherwise:

If no statement of objections to the report of the special master is filed within the time provided, the findings of the special master may be deemed as agreed to, and the Commission may adopt them without a hearing. If a statement of objections is filed, or if the Commission in the absence of such statement proposes to modify or reject the findings of the special master, the Commission shall give the judge and the examiner an opportunity to be heard orally before the Commission, and written notice of the time and place of such hearing shall be sent to the judge at least ten days prior thereto.

For sure, as Grits says, there are plenty of good reasons to not end it here. At the very least, a reprimand seems in order. Will we get that, or is the fix in? We’ll know soon enough.

UPDATE: Via Grits, the deadline for the examiner to file objections has been extended until February 17.

Editorialists call for sanctions on Keller

Special Master David Berchelmann may think that Sharon Keller has suffered enough, but that doesn’t appear to be a popular position. Here’s the Express News weighing in:

Richard’s guilt is not at issue, nor is the fact that he ultimately would have been executed. What is at issue is Keller’s judgment in allowing the state to proceed with the ultimate, irreversible sanction when she was well aware that a reasonable appeal was forthcoming, and without taking the minimally reasonable step of informing the appropriate colleague. She had an ethical responsibility to see that justice was properly served.

Keller has made the Texas judicial system a national embarrassment. She is unfit to serve as the state’s highest-ranking criminal judge. Contrary to Berchelmann’s finding, the State Commission on Judicial Conduct should continue to seek her removal from the bench by the Texas Supreme Court. If the commission does not, Texas voters will have the opportunity to do so in 2012.

And here’s the DMN:

[W]hen it acts on the Berchelmann report, the [State Commission on Judicial Conduct] should focus on the communication breakdowns within the court and the key finding that Keller’s conduct “was not exemplary of a public servant.”

That degree of failure in a death penalty case merits an official reprimand by the commission, and we hope that’s the way the last chapter is written in this judicial comedy of errors.

I hope someone prints these out and puts them on Governor Perry’s desk, since we know he’s too busy to be bothered with the op-ed pages otherwise. Thanks to the Texas Moratorium Network for the links.

More on Keller

Here’s the Chron story about Sharon Keller getting off lightly in the report produced by Special Master David Berchelmann for the State Commission on Judicial Conduct. Of interest is the reminder that Keller isn’t out of the woods just yet.

Seana Willing, the commission’s executive director, said Berchelmann’s report is a recommendation and that Keller still faces five judicial misconduct charges. She said the 13-member commission will decide whether to dismiss the charges, reprimand her or recommend that the Texas Supreme Court remove Keller from office. No date has been set for a hearing.

I certainly hope that a reprimand is still a live possibility. Whether you believe Judge Berchelmann was harsh on Keller in his report or that he was misdirecting us, there’s no question that she didn’t do what she should have done. Surely that’s worth some official action. Grits certainly thinks so:

Bottom line: Judge Berchelmann was asked by the Commission on Judicial Conduct to serve as a fact finder, but instead he acknowledged then ignored the facts, characterizing them in a disingenuous way to excuse Judge Keller’s usurpation of the duty judge’s responsibilities under this “oral tradition.”

Mainly this document is not a statement of facts but an argument by Judge Berchelmann to the Commission about what the punishment should be. Judge Berchelmann’s recommendation that Judge Keller deserves no sanction primarily hinges on the conclusion that she violated no unwritten rules. If she had, the ruling implies, the need for stronger sanctions than “public humiliation” might be merited. For my part, I think it’s pretty clear she violated the court’s unwritten rules, its oral traditions, its verbal prescriptions or its lingual decrees, whatever you want to call them.

The Commission on Judicial Conduct should ignore Judge Berchelmann’s punishment recommendation and reprimand Judge Keller, but not recommend removing her, based on these findings of fact. Berchelmann is wrong: Keller did violate the court’s unwritten rules. And Keller brought any “public humiliation” on herself. But her technical distinctions between the court and the clerk’s office (at one point Berchelmann basically calls her a liar, saying no “reasonable person” would say she’d close the clerk’s office again under the same circumstances) probably obfuscate the legal question enough to conclude removal isn’t justified, even if “there is a valid reason why many in the legal community are not proud of Judge Keller’s actions.”

This outcome doesn’t surprise me; it’s what I predicted after the Commission’s charges first came out. But I do think that Judge Berchelmann got it wrong, and I’m disappointed that the thing ended up looking so much like a whitewash.

I don’t think I can add anything to that. Grits has links to more commentary at his site, and there’s a roundup of media coverage here. I hope the State Commission is paying attention.

Keller gets off

Fresh from the Trib:

Sharon Keller, the presiding judge of the state’s highest criminal court, will not be removed from the bench following a trial and review by the State Commission on Judicial Conduct.


The special master finds that all parties – including the Texas Defender Service – were partly at fault, and that Keller’s “conduct … was not exemplary of a public servant”. But she won’t be removed from the bench or any further reprimand “beyond the public humiliation she has surely suffered,” writes Special Master David Berchelmann, Jr.

I’ve read through Judge Berchelmann’s findings of fact, and while it pains me to say it, I can’t disagree with his conclusion that Keller’s behavior did not rise to the level of misconduct that warrants removal from the bench. Mind you, there’s nothing in his report to alter my opinion that she’s a lousy human being and a disgraceful judge. And I still have no doubt that Judge Sharon Keller would have been utterly dismissive of Defendant Sharon Keller’s legal arguments. But it’s clear that the Texas Defenders Service screwed this up, and then compounded their screwup by not being honest about it in their public accounts of what happened. I fully expect that Keller will claim that she’s not only been vindicated by this, but that she was victimized, and that the kind of people who believe that the Sharon Kellers of the world are under continual assault from the forces of decadence will find the story she’ll have to tell about this experience to be compelling. And we’ll have the TDS to thank for supplying her with the plotline and the villains for her tale of woe. I suppose the one positive to come out of all this is that it forced the CCA to write down its heretofore unwritten rules for handling last-minute appeals, so that this particular kind of fiasco ought never happen again. It ain’t much, but it’ll have to do. Grits has more.

That’s a wrap for the Keller trial

So the judicial misconduct trial of Sharon Keller is now over, and we will await the ruling from District Judge David Berchelmann Jr., who will compile “findings of fact” for the State Commission on Judicial Conduct; the Commission will then decide to drop the charges, censure Keller, or recommend she be removed from the bench. You can and should read all of the coverage – here’s the Chron, here’s the Statesman, and here’s the excellent blow-by-blow stuff from Focal Point here, here, here, and here – but to me, the essence of this whole case, and the reason why it makes me so mad, is in this statement from Keller’s defense attorney Chip Babcock, quoted in the Statesman story:

Babcock said the charges against Keller assume that “we live in a black and white world. I think our society, and what happened here, is a little more nuanced than that.”

Are you kidding me? Have you ever read any of Judge Keller’s rulings from the Court of Criminal Appeals? Because according to Judge Keller, we do live in a black and white world, one in which the prosecution is always correct and never at fault, and the defense is always wrong. She’s got a decade-long track record of it. I keep coming back to this “what would Judge Keller do?” theme because it keeps coming up, and it doesn’t get any more obvious than this. From a legal standpoint, it doesn’t matter what Judge Keller would do, it matters only what Judge Keller did do and what she should have done on that day in 2007. But if you want to understand why some people, like me, are so fired up about this trial, it’s precisely because Sharon Keller is asking – demanding, really – to be judged by a different standard than the one she has used to judge so many of the appellants that have appeared before her court. And the irony is that she does deserve to be judged differently, because her standard is so horribly misguided that nobody, not even her, deserves to be judged by it.