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Sharon Keller

“Warning” versus “reprimand”

Rick Casey answers a question that has been bugging me about the State Commission on Judicial Conduct ruling that issued a “public warning” to Sharon Keller.

A majority of the panel agreed that Keller needed to be sanctioned for ignoring the procedures she admitted to knowing. Because of the poor performance of Richard’s lawyers and evidence of other problems at the Court of Criminal Appeals itself, none of the commissioners argued to remove Keller from office.

Some did urge a “public reprimand,” a step up from the “warning.” But a reprimand results in a judge being ineligible to sit as a visiting judge after retiring from the bench.

One member asked why they would prohibit Keller from sitting later if they did not did not think she needed to be removed now. That argument carried the day for the lower sanction.

So a reprimand would have had a real-life effect on Keller, while a warning is, well, nothing more than the finger wag in her direction I thought it was. Grits points out the obvious flaw in the Commission’s reasoning.

It’s a bit of a strange argument: Why would they prohibit Keller from sitting later if they did not think she needed to be removed now? Another question might be, “Why would the mid-range verdict of a ‘public reprimand’ exist if that’s the commission’s basic calculus?” By that logic, judges don’t deserve a public reprimand until they behave so badly they warrant removal, at which point presumably the commission would instead vote to remove them. What a Catch-22! If, as I suspect, the same commissioners have voted to give other judges public reprimands, that seems a bit disingenuous.

I can actually see a strong argument for a public reprimand as the right outcome – not removing her now but preventing Keller from sitting as a visiting judge later. One might think it proper to allow voters to pass judgment on Keller instead of having her administratively removed, but down the line you wouldn’t want someone who would knowingly violate court rules to sit as a visiting judge.

He also notes that the “warning” option seems to have come out of nowhere, as it wasn’t given by the Commission as a possible outcome when they heard the two sides’ appeals. Has any other judge received a “warning” before? I can’t help but think that the Commission was just simply reluctant to actually punish Keller. Remember, she’s said if she had to do it all over again, she wouldn’t do anything differently. Given that so far all this has cost her is money, of which she has plenty, why would she see any need to change? No consequences means no need for introspection.

Keller gets “public warning” from the State Commission on Judicial Conduct

No, I don’t know what a “public warning” is, either. It’s the first time I’ve heard that phrase. But it’s what the Trib says Sharon Keller got as her “punishment” from the State Commission on Judicial Conduct. What it sounds like to me is something less than a censure, which says to me they wimped out. But read the official doc for itself and see what you think.

UPDATE: Okay, I’ve finished reading the opinion, and it’s very clear that the SCJC holds Keller responsible for what happened. They called her conduct “willful or persistent” four times in their Conclusions Regarding Binding Obligations. I’m just puzzled by the “official warning”. Is this some legal term with which I’m unfamiliar? If you can, please help me understand that. Thanks.

UPDATE: From the Chron story:

Keller’s lawyer, Chip Babcock, said by telephone that she would appeal the decision. The appeal will be filed with a three-judge panel that will be appointed by the Texas Supreme Court, he said.

“Judge Keller is disappointed and shocked that the Commission has completely disregarded the findings of respected trial judge David Berchelmann, who presided over a four-day trial. It is perhaps not surprising that the same commission that made the charges finds them now to be valid despite overwhelming evidence to the contrary. Judge Keller looks forward to challenging this decision in the judicial system,” Babcock said in a statement.

Those who had complained of Keller were no happier.

“The people of Texas have been publicly warned today that we have an unethical judge on the Texas Court of Criminal Appeals who did not accord a person about to be executed with access to open courts or the right to be heard according to law. Yet she has been allowed to keep her job,” said Scott Cobb, president of the Texas Moratorium Network.

“Really, this is the worst-case scenario for Texas. Now we know the problems in the Texas death penalty system reach to Texas’ highest-ranking criminal appeals court, yet the judge who closed the doors to justice for this particular individual remains in office.”

Whatever, Chip. From where I sit, she got away with it. Have fun keeping this in the public eye. The campaign ads in 2012 are already writing themselves.

UPDATE: Grits points to this Statesman story, which notes that while an appeals process for these procedures was mandated by the Lege, the Supreme Court has not created that process yet. Even more fun! Grits thinks Keller is running in 2012, too.

The softer side of Sharon Keller

The Trib lets us know that there’s more to Sharon Keller than willful indifference to death penalty appeals and rigid fealty to the prosecutorial perspective.

For nearly as long as she has led the state’s highest criminal court, Keller has also served as chairwoman of the Task Force on Indigent Defense. Lawmakers created the task force in 2001 when Texas was a national laughingstock for its dismal provision of legal representation for poor criminal defendants. Now, counties must meet minimum standards for legal representation, thousands more poor defendants get qualified attorneys, and 91 counties — many in rural areas with few public resources — are served in some capacity by a public defender. Both critics and supporters of the Texas criminal justice system agree the task force has overseen a sea change in defense representation for people who can’t otherwise afford it. And despite the roiling controversy over her judicial conduct, most seem to agree that Keller’s leadership has been instrumental. “We started at ground zero,” said state Rep. Pete Gallego, D-Alpine, a member of the task force and chairman of the House Criminal Jurisprudence Committee. “We were one of the worst states around, and as chairman of the task force, she’s really been in a real sense responsible for building the whole thing.”

Among the major initiatives that have improved representation for the poor is increased funding for counties to provide defense services. Before 2001, the state gave counties no money to provide indigent defense. Lawyers who did the work often received a pittance, making it difficult for courts to find qualified lawyers to take the cases. Last year, the task force awarded counties statewide $31 million to run public defender offices and provide indigent defense. Andrea Marsh, executive director of the Texas Fair Defense Project, said Keller has worked not only to give counties funds they need for indigent defense, but also to give them incentives for new and innovative programs. Task force grants have helped launch programs like Travis County’s Mental Health Public Defender Office. “She has been supportive of giving more of that money to program improvements and not just giving that money for the same old thing that isn’t working,” Marsh said.

Among other things, the TFID would be the grant-awarder for the Harris County public defender’s office. I’d have to go back and re-read that Texas Monthly profile on Keller from 2009 to see if they mentioned this; if they had, or if I had realized what it was, I might have reacted a little less negatively to the piece. I’ll stipulate that she’s done good work with this, that she deserves credit for it, and that any thorough reckoning of her as a person needs to take this into account to be fair. But it has nothing to do with her actions in the Michael Richard case, and it has no bearing on her career as a judge, for which her behavior has been consistently and in many cases overtly hostile to defendants. I give her points for character and humanity, but as a judge she’s beyond redemption. Grits has more.

The Keller hearings

The current phase of the Sharon Keller saga may end soon.

Sharon Keller, fighting to keep her job as the state’s top criminal court judge, should know her fate soon.

After a five-hour hearing Friday, members of the State Commission on Judicial Conduct met privately to begin deliberating charges that in 2007 Keller improperly closed the Court of Criminal Appeals to a death row inmate scheduled to die later that evening.

The decision, to be issued as a written order, could come as soon as next week. The 12 commissioners can dismiss the charges, reprimand Keller or recommend that she be removed from office.

I say “the current phase” because unless the Commission votes to dismiss the charges, Keller will appeal. Anything is possible, and I know I’m setting myself up for disappointment by saying this, but I don’t see how they can possibly dismiss. Surely at least a reprimand is in order.

I say that in part because I’m hopelessly naive, and in part because I think the case for the prosecution, for which you can see Examiner Mike McKetta’s devastating PowerPoint presentation, is really compelling. But hey, what do I know? I’m just a guy who thinks that Sharon Keller is extremely lucky that she herself is not on the Commission. I’m glad to see at least one member of the Commission recognizes that.

Commissioner Tom Cunningham said he found it interesting Keller would argue that the “tainted process,” as Babcock called it, was denying the judge a fair hearing.

“Isn’t it ironic that’s what Mr. Richard was asking for?” Cunningham said.

Yeah, some of us noticed the irony a long time ago. The Chron, Texas Lawyer, and Grits, from whom I got the McKetta slideshow, have more.

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.

Keller may yet face criminal charges

Grits read through the TEC ruling against Sharon Keller, who was hit with a record $100K fine for various failures to disclose financial information, and notes that the system isn’t done with Keller yet, as there is still the matter of a pending criminal complaint against her.

I called [Travis County Attorney David] Escamilla to ask about the status of the criminal complaint, which has now been sitting at his office for more than a year. Escamilla had not yet read the TEC opinion himself, declaring that he’d asked two of his prosecutors to review it and report back to him tomorrow with a recommendation how to proceed.

Escamilla and I spoke both on and off the record. On the record, he said he hadn’t moved forward before now because he’d been been waiting for the Ethics Commission to complete its investigation. He said he would give “great weight” to the Ethics Commissions findings of fact and conclusions of law, which would have a “great influence” on whether his office elected to proceed with prosecution. Escamilla was particularly impressed that the TEC identified 13 different alleged Class B misdemeanor violations and said the remarkable volume of violations might also be a factor in whether to go forward.

IMO prosecutors should particularly investigate the circumstances surrounding the property purchased by her father and the boards of directors Judge Keller sat on but did not disclose. Why wouldn’t her father tell her about those properties? And if Daddy listed her as a company director without her knowledge or participation in the company’s affairs, doesn’t that begin to look like Keller’s father has been setting up dummy companies for some unknown purpose that he’s been concealing from his family? It’s a legitimate question if we are to believe the Presiding Judge’s denials that she knew anything about the assets and corporate affiliations in her amended ethics disclosure.

My guess: By a long shot, the last shoe hasn’t dropped in this saga.

I would not be surprised if there are charges brought against Keller. And while Grits frets over the possibility of Keller resigning as a result and being replaced by John Bradley, I think she’d continue to insist she’s done nothing wrong and would stick it out till the bitter end. Which ought to be the ballot box in 2012, followed by whatever the criminal justice system may have in store for her. That’s my hope, anyway. See also editorials from the DMN and Star Telegram for more.

Keller gets slammed by Ethics Commission


The Texas Ethics Commission has levied a record $100,000 fine against Texas Court of Criminal Appeals Presiding Judge Sharon Keller for failing to make full financial disclosures in 2007 and 2008.


The commission in an order made public on its Web site today said Keller in 2006 failed to report between 100-499 shares of stock, $61,500 in income, interests in eight properties valued that year at $2.4 million and two expenses accepted under the honorarium exception for $3,760

The commission said in 2007 Keller failed to report the stock, nine sources of income totaling $121,500 and two honoraria valued at $6,010. She also failed to report the eight properties again, then valued at $2.8 million.

Keller last year filed amended reports making the disclosures. She said her father made investments for her and her son without her knowledge.

You can read the order here. Apparently, they had as much sympathy for her defense as she usually does for most appellants that appear before her. As the Trib notes, this makes Keller the holder of the Biggest Fine Ever Levied By The TEC record. Nice job!

And there’s more. As Coby notes, unlike previous record holder Jerry Eversole, Keller doesn’t have a zillion dollars in her campaign account, so either she gets to pay this out of her own money, or she gets some Republican sugar daddy to write her a check. And as Grits notes, the great irony in all this is that the ethics complaint against her began at a time when her attorney was arguing that the state should pay for her legal fees in the matter of the judicial conduct complaint against her. A story in the DMN about all of her undisclosed finances put the lie to her plea that she was just too poor to pay for her attorney. There’s still a criminal complaint pending against her in Travis County as well. Now that the TEC has ruled, we may hear something about it. Been quite the busy week for old business, hasn’t it?

UPDATE: I somehow overlooked in my initial reading of the story the fact that Keller says she will appeal the fine.

“Judge Keller is very disappointed by the excessive penalty assessed against her by the Texas Ethics Commission,” [her attorney Ed] Shack said. “As the commission found, Judge Keller voluntarily amended her financial disclosures shortly after she was made aware of the matter. And her conduct was not intentional, but rather the product of her father’s acquisition and management of properties without any input from her.”

The irony of this whole saga just staggers me.

Next Keller hearing June 18

Mark your calendars.

The State Commission on Judicial Conduct set a June 18 hearing in the continuing case of Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals.

Keller was accused of bringing “public discredit” to the judiciary by not accepting a last-minute appeal from death-row inmate Michael Wayne Richard before his 2007 execution.

A special master who heard the case, however, found that she didn’t violate any rules or laws. While saying she could have handled things better, the special master said Richard’s defense team bore the bulk of the blame in the matter.

Keller and her prosecutors each filed objections to the ruling, which was forwarded to the commission.

The commission set the June 18 public hearing to hear from each side.

It will decide whether to dismiss the charges, reprimand Keller or recommend that the Texas Supreme Court remove her from office.

The Statesman has more. If the commission recommends that Keller be removed, there will be appeals. In theory, this could all still be going on when she’s next up for re-election in 2012.

Supreme Court petitioned to hear the Charles Hood case

Via Grits, one of the more embarrassing rulings from the Court of Criminal Appeals – and you know how much that is saying – has been appealed to the US Supreme Court.

A former governor, a former district attorney, a former U.S. attorney from North Texas, and the former director of the FBI are among a group of 21 lawyers who have petitioned the U.S. Supreme Court to hear a controversial Texas death penalty case.

The group, which was organized by the Constitution Project, is asking the court to hear the case of Charles Dean Hood, who was sentenced to death for killing two people in Collin County in 1989. Hood’s case has garnered national attention not for the horrific crime, but because the prosecutor in the case had an intimate relationship with the judge.

Yes, the infamous hot judge-on-prosecutor action case. If SCOTUS allows this to go forward, expect a lot of our state’s dirty undies (the lacy unmentionable kind, naturally) to be prominently displayed in public once again. The issue, as with the Sharon Keller saga, is not about the death penalty itself but about whether or not our judiciary can be trusted to follow its own rules of conduct. The fact that this is even in question is mortifying enough, but there you have it. I sure hope this one gets heard. More from Grits here.

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.

CCA versus David Dow

According to Grits, UH law professor David Dow and the nonprofit Texas Defender Service will be called to account before the Court of Criminal Appeals for filing tardy paperwork.

Two years ago, David Dow and the Texas Defender Service were embroiled in a controversy after a thwarted last-minute attempt to file pleadings for a death-row inmate. Now Dow and Katherine Black, his TDS co-counsel in a different death penalty case, have been ordered to appear before the Court of Criminal Appeals to explain an “untimely filing,” and they face possible sanctions under one of the CCA’s rules.

On Nov. 18, the CCA ordered Dow, the TDS litigation director, and Black, a TDS staff attorney, to appear before the court for a Dec. 2 hearing to show cause for the untimely filed documents in Ex Parte Simpson. Dow and Black work in the Houston office of TDS, a nonprofit organization that seeks to improve the representation of death-row inmates.

As noted in the CCA’s order, Sharon Keller, the court’s presiding judge, did not participate in Simpson and is not participating in the court’s show cause hearing for Dow and Black.

Like Grits, I have a feeling that this will not be a pleasant experience for Dow. I sure hope he’s got a good explanation for the Court.

Trying to reinstate a lawsuit against Sharon Keller

Last year, a wrongful death lawsuit against Court of Criminal Appeals Presiding Judge Sharon Keller that was filed by the daughter of death row inmate Michael Richard, the man who was executed in the “we close at 5” case, was dismissed after Keller successfully argued that she had immunity because she was acting in her capacity as a judge. Earlier this year, Keller argued at her judicial misconduct trial that her actions there were in an administrative capacity, not a judicial one. See here and here for more on that. Now Richard’s family is asking the judge who dismissed the lawsuit to reconsider his ruling based on this inconsistency.

Judges acting in their administrative capacity are not immune from lawsuits, said Jim Harrington, director of the civil rights group.

“You can’t have it both ways. You can’t argue out of one side of your mouth in federal court,” then argue differently in another court, Harrington said. “This is a judge who understands the law, who understands how important it is to plead correctly … and to say things correctly when under oath.

“I think this speaks volumes about her integrity and her truthfulness.”

You know my opinion about Keller’s integrity and truthfulness. I think this is a creative argument by the plaintiffs, but I have my doubts that it will work. Not because it doesn’t deserve to, I just don’t think there’s any official inclination to open that particular can of worms. But I hope I’m wrong about that. Thanks to Vince for the catch.

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.

Same old Sharon

I’ll say this for Sharon Keller. She is steadfast in her beliefs, and there is nothing you can say to her to make her waver from them.

The presiding judge of the Texas Court of Criminal Appeals who refused to keep open the clerk’s office before a last-minute death row appeal could be filed told a crowded courtroom Wednesday she would do nothing different if presented again with a similar request.

“Yes, that is correct,” Judge Sharon Keller said from the witness stand when asked if she would respond the same as Sept. 25, 2007, the day death row inmate Michael Richard was executed after being denied a request to file an appeal after 5 p.m.

Immediately after her answer, special prosecutor Mike McKetta said, “Pass the witness.”

That’s pretty much where we started with all this, isn’t it? Keller thinks she’s done nothing wrong, she’d do the same thing tomorrow, and who cares what the rest of us think? Well, it does matter what the State Commission on Judicial Conduct thinks, and it seems she recognizes that. But don’t expect anything but the same ol’ Sharon if they let her off, because as far as she’s concerned she’s got no lesson to learn. Grits noticed the same thing, and says this is exactly why the Commission should remove her from the bench. I’ll say again, I like my judges to have a healthy dollop of self-doubt and introspection in them. Take that out, and what you get is, well, Sharon Keller, who thinks she can do no wrong. She’s wrong about that, and I agree with Grits.

One of the things that came out of yesterday’s testimony was an admission by Ed Marty, the former general counsel for the Court of Criminal Appeals, that he couldn’t really remember if he’d mentioned the phone call asking for the clerk’s office to stay open late to CCA Judge Cheryl Johnson, the assigned judge for Michael Richard’s execution. That contradicted earlier testimony cited by the defense. I thought this bit was rather poignant:

After Keller finished testifying Wednesday, prosecutors played a taped deposition from Marty before resting their case.

When asked if there was anything he would have done differently about the conversation, Marty said he had hoped Keller would agree to let the clerk accept the filing late, but once he received her answer, he felt there was nothing more he could do. He wasn’t allowed to contact litigants unless they called him, he said, and the chain of command prevented him from approaching another judge.

“I regret that I didn’t really know how to advise Judge Keller,” he said, adding that he still isn’t sure what he could have done once she gave an answer.

Since then, the only solution he’s been able to come up with is to have placed emphasis on the word “clerk” when relaying the message to deputy clerk Abel Acosta that “the clerk’s office closes at 5.” The emphasis, he said, might have been “a hint to (Richard’s attorneys) that that’s magic language.”

Yeah, well, as we know several things about the court’s procedures have changed since this incident, such as actually writing them down rather than relying on oral tradition or osmosis. Clearly, the procedures had to change because we know Sharon Keller never will.

Other items of interest:

More from Keller’s testimony in the Focal Point blog: Part One, in which we learn that Keller expected court personnel to know what to do regardless of whether or not they’d actually been formally told what to do; Part Two, in which Keller explains that her claims of judicial immunity in a suit filed by Richard’s wife don’t mean she was making a judicial ruling when she told Marty to reject the late filing (more on that at Tex Parte); and Part Three, in which we get into the “I’d do nothing different” stuff. Keller also responded to questions from her attorney, Chip Babcock; you can read more about that in the Statesman story and in this last Focal Point post, in which we learn once again that Keller and Johnson are so not BFFs. The defense will call two witnesses today, at which point it should be all over but for closing arguments. The Contrarian has more.

Keller testifies

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.

The Keller trial, Day One

If you want a detailed blow-by-blow description of the trial of Court of Criminal Appeals Justice Sharon Keller, go to the Statesman’s Focal Point blog, which has been liveblogging the procedure. Here are links to various entries:

Opening statement by the prosecution.

Opening statement by the defense.

Possible bombshell from Ed Marty, the Court of Criminal Appeals general counsel on the day in question.

Phone calls to the court.

To me, the most interesting bit in all this comes from this Chron story. It has to do with what Ed Marty may or may not have said to CCA Justice Cheryl Johnson:

[Keller’s] defense attorneys claimed that Judge Cheryl Johnson, the judge on duty the night of Richard’s execution, knew Richard’s attorneys were trying to file an appeal. According to Babcock, court general counsel Ed Marty has said in a deposition that he told Johnson that Richard’s attorneys were running late.

Johnson, the first witness called, denied that conversation took place.

“If I had known that they asked for more time, I would have granted it,” Johnson said “It’s an execution.”

On cross-examination, Babcock produced a a floor plan of the court hallway and a tape measure to determine where Marty was standing about 5:30 p.m. that night. Johnson said she and other judges were talking about their surprise that no appeal had been filed while Marty stood a few feet away.

Babcock said it was during that conversation that Marty mentioned Richard’s lawyers had tried filing appeal. Johnson said that didn’t happen.

“So (Marty) stood there for five minutes in a hallway with no bathrooms, nothing to do, not trying to join your conversation. Just standing there loitering. Is that correct?” Babcock asked.

“Yes,” Johnson replied.

I’m thinking that whatever happens to Keller, she’s not going to be on Johnson’s Christmas card list any more. Grits has more.

A preview of the Keller case

Texas Lawyer has an in depth look at some of the facts that are in dispute in the judicial conduct hearing for Court of Criminal Appeals Presiding Judge Sharon Keller, which begins today. It is, as the story’s headline suggests, a lot of he said/she said stuff. I don’t envy the task that 37th District Judge David Berchelmann Jr. has in sorting it all out. Thanks to the Texas Moratorium Network for the tip.

Keller goes on the offensive

We’re less than two weeks out from the judicial conduct hearing on Court of Criminal Appeals Chief Justice Sharon Keller, and it’s clear that her defense strategy will be to attack her accusers.

Keller, facing potentially career-ending charges that she improperly closed her court to a death row appeal, will argue that defense lawyers fabricated — or at least exaggerated — computer problems the day Texas executed Michael Richard.

Keller’s new accusation is an attack on the credibility of Richard’s lawyers, three of whom are expected to be called as witnesses when her special trial convenes Aug. 17 in San Antonio.

The attack, a recent addition to Keller’s defense strategy, also seeks to undermine the narrative that has emerged against the judge: that she refused a reasonable request to keep the Texas Court of Criminal Appeals open past 5 p.m., penalizing Richard for events outside his control — computerbreakdowns experienced by his lawyers.

“Judge Keller’s position will be that there was no computer problem,” said her lawyer, Chip Babcock. “There will be testimony that (Richard’s lawyers) — maybe — had e-mail problems for a few minutes in the afternoon.”

However, in recent pretrial depositions, provided to the American-Statesman by agreement of all parties, Richard’s lawyers testified under oath that the computer difficulties were real and delayed work on Richard’s briefs.

Even Keller’s forensic computer expert, Eric Shirk, testified in a July 17 deposition that he could not rule out computer trouble — only that he found no evidence of a “series of computer crashes,” which is how Richard lawyer David Dow described the problem shortly after Richard was executed in 2007.

That recent Texas Monthly article gives a pretty good accounting of the timeline, and it’s clear that the defense could have been better organized, though they really were operating on a very tight deadline. Having said that, this isn’t about them, it’s about her, despite her efforts to pass the buck. I’ll say it again, I can only wonder what Justice Keller would think of the arguments being made on behalf of Defendant Keller if the latter were to appear before her.

According to depositions, working from the Texas Defender Service’s office in Houston, lawyer Alma Lagarda began drafting Richard’s briefs about noon. Dow, the organization’s litigation director, joined her about 2:45 p.m., and Lagarda e-mailed Dow her first draft about 3:30.

The first sign of trouble came around 4 p.m., when Dow tried to send his changes back to Lagarda and discovered that nobody in the office could send or receive e-mail, according to sworn testimony from Dow and Lagarda.

All computers, however, continued to function, allowing Lagarda and Dow to finish the brief about 4:30 p.m. by working from printouts. Still, several efforts to e-mail the document to the Texas Defender Service’s office in Austin — where the Court of Criminal Appeals is located — did not succeed until 4:51 p.m., the lawyers testified. Then began the laborious process of making 11 copies, as required by court rules, on the organization’s outdated printer. That didn’t end until 5:50 p.m., according to testimony.

“The best indication is that it slowed them down by half an hour or an hour,” Manne said.

Manne admitted that they “might have been a few minutes late even if there were no e-mail problems at all. But the question is: What did (Keller) do and was it appropriate? It’s a classic legal defense to create a credibility contest over something that doesn’t matter anyway.”

But Shirk, the computer expert hired by Keller, said in his deposition that subpoenaed Internet records and a forensic review of Texas Defender Service data files turned up no verifiable computer crashes, which is how Dow described the problems in an opinion piece he wrote for The Washington Post in 2007.

When asked if his definition of crashes — “catastrophic hardware or software failures” — might conflict with a layman’s definition, Shirk demurred. “The more time I spend in this business, the more I have less of an ability to understand what the layperson thinks,” he said.

Okay, well, I’ve spent nearly 20 years in the IT business, mostly in customer service, and I can tell you that to an end user, a “computer crash” can mean any number of things, mostly something along the lines of “the program I was using failed in some fashion, and I had to start all over”. Maybe they had a hang, maybe they hit a wrong key and lost their data, maybe Outlook or whatever email program they were using crashed on them. Who can tell? I speak from experience when I say you have to quiz non-expert users very carefully to really understand what actually happened to them, because they don’t speak the same technobabble we geeks do. Maybe whatever happened to them would be apparent in a check of their ISPs log files or the data files they submitted – one assumes it was far too late for the computer in question to yield any useful evidence by the time Shirk got involved – and maybe not. What Shirk is saying here tells me nothing, and proves nothing. Thanks to South Texas Chisme for the Statesman link.

Far more egregious than any of this, however, is Keller’s argument that she should be judged by a standard of proof more favorable to the defense than would normally be used. Tex Parte explains.

In the motion she filed with the commission, Keller requests that 37th District Judge David Berchelmann Jr., the special master for Keller’s hearing, base his findings of fact regarding the charges against her on the evidentiary standard of clear and convincing evidence. Under judicial conduct commission rules, the master would base his findings on the lower standard of preponderance of the evidence. “Application of the preponderance of the evidence standard would not be sufficient to ensure that any deprivation of Respondent’s [Keller’s] property interest in her position as Presiding Judge of the Court of Criminal Appeals would not be arbitrary,” Keller alleges in the motion.

Keller’s motion is here (PDF). Once again, all you can say is What Would Justice Keller Do in this situation? My poor Irony-O-Meter may never work again after this. Vince has more.

UPDATE: Grits has more.

Texas Monthly on Sharon Keller

Texas Monthly gives the long-form magazine article treatment to Sharon Keller and her upcoming trial before the Commission on Judicial Conduct. It’s well worth reading, and they try their best to humanize her, but I can’t bring myself to care about that. I think she’s amply demonstrated that she’s a bad judge, whose decisions are largely pre-ordained by her self-professed “pro-prosecutor” viewpoint. The Michael Richard “we close at five” affair is just the moldy cherry on the rancid sundae of her judicial career. The sooner she becomes a former judge, the better it will be for Texas.

Keller hearing moved to San Antonio

It had been scheduled to be in Austin, but now it’s been moved to San Antonio.

State District Judge David Berchelmann Jr., who was chosen by the Texas Supreme Court to preside over Keller’s trial, will use his downtown San Antonio courtroom for the proceedings — set to begin Aug. 17 and expected to last a week or longer.

The special trial was moved from Austin by agreement between Chip Babcock, Keller’s lawyer, and Mike McKetta, the lawyer representing the State Commission on Judicial Conduct.


Also this week, the commission filed amended charges against Keller. The new document beefs up the charges by claiming Keller violated two additional canons of the Texas Code of Judicial Conduct:

  1. Canon 3C(1): Requiring judges to diligently and promptly discharge administrative responsibilities without bias or prejudice and to cooperate with other judges and court officials in the administration of court business.
  2. Canon 3C(2): Requiring judges to ensure that court staff and officials observe the standards of diligence that apply to judges.

The amended charges also accuse Keller of violating the Texas Government Code against “willful or persistent conduct that is clearly inconsistent with the proper performance of a judge’s duties.” Section 33.001(b) also bans the “unjustifiable failure to timely execute the business of the court.”

The Texas Moratorium Network, which had filed one of the original complaints against Keller back in 2007, has more. It’s not really clear to me why the hearing was moved, but I suppose it doesn’t matter that much – it’s not any harder to get to San Antonio than it is to get to Austin. Had it been moved to Dalhart or some such, that would have been different. In any event, I’m curious about the amended charges. Is this a sign that the commission intends to be tougher on her, or is it more likely to be a technicality? Any lawyers out there, I’d love to hear from you on this. Thanks.

How about that CCA’s reputation for fairness?

This is just precious.

The longest serving Judge on the Texas Court of Criminal Appeals, Lawrence “Larry” Meyers, has announced he is seeking re-election in 2010. The Court has been called a national laughingstock by one of its other members because of the actions of Sharon Keller and that was years before Keller made it even more of a laughingstock by closing the court in 2007 and refusing to accept a legal appeal from a person about to be executed.


Despite the poor reputation of the Court of Criminal Appeals, Meyers said in his press release, “I am seeking re-election to the Court to continue to be an objective voice and ensure that we maintain our reputation for delivering fair and just opinions,” said Meyers in announcing his candidacy for re-election.

Yes, the CCA’s well-known reputation for fairness and justice, which is somewhat like Wall Street’s reputation for transparency and honest accounting. As Michael Landauer suggests, it is to laugh.

Link via Grits, who notes that Justices Michael Keasler and and Cheryl Johnson will also be on the ballot next year. Only Keasler had a Democratic opponent in 2004, and that was JR Molina, so it really doesn’t count. Last year, the Dems left on CCA judge unchallenged, ran Molina against another, and a good candidate in Susan Strawn against the third. Strawn lost by six points 51.64 to 45.53, in the best showing for a Democratic CCA candidate since then-incumbent Charlie Baird lost with 46.03% in 1998. The Dems have been slowly but steadily gaining ground in these statewide judicial races – Supreme Court candidate Sam Houston did even better last year, getting 45.88% and losing by five points – and it’s not unreasonable to think that some good quality CCA candidates next year could score an upset or two. They’ll have Sharon Keller as an issue whether or not the State Commission on Judicial Conduct boots her off the bench. Grits has suggested before that judicial races will be the spearhead of a Democratic renaissance in statewide elections, and while I don’t necessarily agree with that – I think any reasonably well-funded Dem will have a fighter’s chance in the Governor’s race if Rick Perry survives the primary – I certainly do think that these races are vital and must be taken seriously. The last time the Dems ran three non-Molina candidates for the CCA was 1996. That can’t happen again.

Burnam drops impeachment resolution

I had wondered what would happen with Rep. Lon Burnam’s resolution to impeach Sharon Keller, given that we were coming down to the wire and there was a lot of pressing business that needed to be taken care of in a very short period of time. Now I know.

Rep. Lon Burnam, D-Fort Worth, today offered a “personal privilege” speech noting that his resolution calling for the impeachment of Court of Criminal Appeals Justice Sharon Keller is going nowhere this session (which ends Monday).

Burnam’s resolution has been pending since April 27 in the House Judiciary and Civil Jurisprudence Committee. In his speech today, Burnam said he chose not to try to use the procedure by which he could have tried to get the votes to bring the resolution to the floor despite the lack of committee action.

But he made it clear he still believes Keller should be removed from office for refusing to keep her court clerk’s office open on Sept. 25, 2007 to accept a late filing on behalf of Death Row inmate Michael Wayne Richard, who was executed later that day.


Burnam said if neither state agency causes Keller’s removal from office he’ll try again in two years if he is re-elected to the House.

Well, I certainly hope that the State Commission on Judicial Conduct has taken some action by then. I know the wheels grind slowly and all, but surely that’s not too much to ask. Floor Pass has more.

Lon Burnam

The Star Telegram has a nice profile of Rep. Lon Burnam of Fort Worth, who we all know was anti-Tom Craddick before it was cool. If he were a baseball or basketball player, you’d say he’s one of those guys who does things that don’t show up in the box score. Burnam doesn’t pass a lot of bills, but he works to kill those that need killing, and he helps provide a much-needed and otherwise often lacking liberal perspective on many issues. And his story for this session has not been fully written yet, as he has promised to bring his resolution to impeach Sharon Keller to the floor for a vote on a personal privilege motion. He has said that will happen before sine die, so it’s got to be coming soon.

Burnam makes his case in the papers

State Rep. Lon Burnam writes an op-ed about his resolution to impeach Judge Sharon Keller.

Last week, a group of 24 national experts on judicial ethics issued a statement that Judge Keller has consistently demonstrated a lack of impartiality in cases involving criminal defendants like [Michael] Richard that violates their constitutional right to due process of law.

Article XV of the Texas Constitution clearly establishes that the Legislature has the power and responsibility to impeach. Section 4 of that article states that an impeached official is also subject to “indictment, trial and punishment according to law.” The impeachment of Judge Keller would neither pre-empt nor interfere with the commission’s investigation, and the commission’s investigation neither pre-empts nor interferes with impeachment.

Impeachment is a serious process reserved for only the most extreme derelictions of the duties of public office. The Texas Legislature has investigated only four state judges since the state’s Constitution was adopted in 1875; Judge Keller is the fifth. The taking of human life without due process is an extreme dereliction of duty. For the most trivial of reasons — a narrowly missed deadline — Judge Keller callously dismissed a clearly relevant appeal to spare a man’s life. That’s unacceptable.

Because death penalty cases exemplify the state at the zenith of its power, those who adjudicate these decisions must be held to the highest ethical standards. That’s what the impeachment of Judge Sharon Keller is about — ensuring that those who wield power over life and death have the integrity and sound judgment necessary to make such decisions.

We cannot allow a judge with a self-declared bias against capital defendants to continue deciding execution appeals. The best way to promptly get Judge Keller off the bench is through impeachment. That would avoid an additional 18-month deliberation by the commission during which Judge Keller would continue to make life-or-death decisions.

You know how I feel about this. Maybe, just maybe, if we send a message to Judge Keller that we won’t tolerate such indifference and contempt for constitutional rights, we won’t get any more judges like her. It’s a nice thought, isn’t it?

In the meantime, Judge Keller has filed an amended financial disclosure statement, which should put to rest once and for all the idea that she can’t afford to pay for her own damn attorney.

In a sworn statement filed in Austin earlier this week, Sharon Keller said she omitted more than two dozen properties, bank accounts, income sources and business directorships because her elderly father in Dallas had not told her about them.

“My father, Jack Keller, over a number of years has acquired and managed, without input from me, all of these properties,” Keller wrote in a filing with the Texas Ethics Commission meant to correct the annual report she made in April 2008.

The “Daddy didn’t tell me” defense. Well, at least she didn’t claim her dog had eaten her portfolio or something.

Her attorney expanded on her explanation Friday, saying that Keller, the presiding judge of the Texas Court of Criminal Appeals since 2001, misinterpreted what she had to disclose and lost track of holdings she had disclosed in earlier financial reports.

“We’re not saying she is excused. She is at fault,” Ed Shack said. “But she wasn’t trying to deceive anybody.”

Fine. I believe her. Just a mistake, no intent to deceive, could happen to anyone with a rich yet conveniently forgetful daddy. These things happen. But let’s get real about what the issue really is.

Andrew Wheat, research director of Texans for Public Justice, an Austin watchdog group that filed the complaints over Keller’s nondisclosures, suggested that the judge would not be swayed by others’ pleas of sloppiness.

“If a defense attorney in a death penalty case before Judge Keller’s court filed briefs as carelessly as Keller filed her financials, the client in question already would have been executed,” he said.

Damn straight. As far as karma is concerned, she deserves the same “justice” she’d routinely impose on any appellant that tried to pass this off. Because she has the good fortune to not be appearing before herself, she’ll do better than that. And that’s how it should be. For everyone, which is why she needs to be an ex-judge as soon as possible. It won’t solve everything – indeed, as Grits reminds us, the rot at the CCA goes far deeper than Sharon Keller – but nothing can get better as long as she’s wearing the robe.

Followup on Keller impeachment resolution

I had a brief conversation with Rep. Lon Burnam about HR480, the House resolution to impeach Court of Criminal Appeals Presiding Judge Sharon Keller, which had a hearing on Monday. He’s working on getting enough support in the House Committee on Judiciary and Civil Jurisprudence to get it voted out of committee and brought to the floor of the House for a vote; he’s also talking to Members and answering their questions about this arcane and seldom-used procedure, and securing their support for an eventual vote. If the Jurisprudence committee does not vote HR480 out, Burnam can and will bring it to the floor on a personal privilege motion. So one way or another we will see a House vote on this.

Because of the nature of this kind of resolution, the only deadline Burnam faces is sine die on June 1. Only the House must take action for impeachment to move forward. What HR480 does is authorize the creation of a select committee on impeachment, which would be chosen by Speaker Straus and which would meet in the summer to investigate the charges and potentially refer articles of impeachment back to the full House for another vote. The House would then convene for that vote, and if they accept the articles of impeachment, the matter then passes to the Senate for a trial. A two-thirds vote in the Senate would be required for a conviction, with the penalties including removal from the bench and a ban on holding public office in the future.

Rep. Burnam’s office sent me the 1975 Select Committee on Impeachment report (PDF), which was the last time a resolution was brought forth to impeach an officeholder, in that case a district judge in Duval County, and which makes for some interesting reading. The Committee, whose members included former Speaker Pete Laney, Sarah Weddington, and still serving Rep. Senfronia Thompson, likened the role of the House to that of a grand jury, offering no judgment on the guilt or innocence of the accused or exploration of possible mitigating factors; that was left for the Senate, which was the trial court. They were there to determine if there was cause for further action.

One other point of interest is that the impeachment resolution of 1975 was brought to the floor by a privileged motion. Rep. Burnam is taking the longer way by having this go through the normal committee process, though as noted he can still go the privileged motion route if need be.

The Keller impeachment resolution

Rep. Lon Burnam’s resolution to impeach Judge Sharon Keller was scheduled to get a hearing Monday. Burnam vowed that it would come to a vote on the House floor.

If that resolution does not move in committee, Burnam said he will seek a majority vote for impeachment on the House floor. But he said he will make an impeachment motion even if he is not sure of winning.

“I’d rather lose the vote than not have the vote,” Burnam declared.

Burnam said a House vote on impeachment would immediately remove Keller from the bench while she awaited a trial in the state Senate.

He said the judicial conduct commission could take another 18 months to act. Even if the commission finds against Keller, Burnam said, the punishment could range from a slap on the wrist to removal from office.

Burnam said immediate action is needed when life and death matters are at stake in the judicial system.

The hearing started at 10 PM and ran until 12:30, so there isn’t much news coverage about what happened in the hearing. The Star Telegram has some information.

[Rep. Burnam] presented witnesses to reinforce his claim that Judge Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, committed “a gross neglect of duty and willing disregard for human life” by refusing the keep the court’s office open after hours to accept a Death Row appeal. The inmate, Michael Richard, was executed hours later.

“What she did was so outrageous,” retired state appeals court Justice Michol O’Connor of Houston said as she waited to testify on behalf of Burnam’s motion.


Burnam told reporters that he plans to force a vote by the full 150-member House even if the committee rejects his motion. He says he has the right to do so under House rules. “I can bring it up at any time,” Burnam said.

Austin attorney Charles Herring Jr., an expert on legal ethics issues who has advised the Texas Supreme Court, said in written testimony that Keller’s behavior “clearly meets the constitutional standards for impeachment.”

“I submit that if that type of egregious judicial misconduct, with the most serious possible consequences imaginable, does not require removal from office, nothing does,” Herring wrote.


If the Legislature gives the go-ahead for impeachment, the process would likely not start until after the session ends June 1. House members would return to Austin to consider articles of impeachment. If adopted, the Senate would then convene for a trial. No action by the governor would be necessary, Burnam said.

Grits, from whom I got that link, also has a report:

[Judge O’Connor declared] that three things justified her impeachment – her actions in the Michael Richard cases, her stated partiality toward the prosecution, and her incompetence as a judge. In the Richard case, she said, the court wasn’t closed “in any real sense” at 5 p.m., she said, since the assigned duty judge was waiting there to hear the appeal. She said she’d never heard of a capital case when a request for a 20-minute delay was denied by an appellate court.

Judge O’Connor particularly emphasized Judge Keller’s partiality toward the prosecution, declaring that alone should be enough to justify her removal. This to me is an even stronger argument for her ouster than the Michael Richard debacle. Imagine a family court judge who declared themselves “pro-husband”!

Judge O’Connor went through all the various reasons judges had been removed from office in Texas, arguing that Judge Keller’s behavior was worse than any of them. She said she doesn’t know anyone who believes Keller should stay in office.

The hearing lasted nearly three hours with most of the testimony favoring impeachment.

Mark Bennett was there for the hearing, though his report is from before it started. The DMN, Statesman, and Daily Texan have more, and you can watch the archived video of the hearing if you’ve got a few hours to kill; Burnam’s stuff starts about three hours in. I’ve put a call into Rep. Burnam’s office and am awaiting a statement from them about the hearing. I’ll post it when I get it.

House hearing set on Keller impeachment resolution

Mark your calendars for Monday, April 27, for that’s when HR480, the resolution filed by State Rep. Lon Burnam back in February that called for the House to begin the impeachment process against Judge Sharon Keller, gets a hearing. From Burnam’s press release:

“It is important that the committee be made aware of the public’s desire for impeachment,” Mr. Burnam said. “I encourage anyone who wishes to see justice done in this matter to come to room E2.010 in the capitol on Monday afternoon and register ‘for’ House Resolution 480.”

The impeachment resolution stems from Judge Keller’s alleged violation of the Court’s practice of remaining open on scheduled execution nights. On September 25, 2007, the judge instructed court staff to refuse appeal filings from lawyers for death row inmate, Michael Richard.

Richard’s appeal was based on announcements made by the United States Supreme Court the morning of they scheduled execution. Although Richard was executed that night, the Court of Criminal Appeals (over which Judge Keller presides) later granted two stays of execution based on the same arguments Richard’s lawyers attempted to present.

If passed, HR 480 calls on the House of Representatives to form a committee to investigate Judge Keller for “gross neglect of duty and willing disregard for human life.” If the House finds cause for impeachment, a trial would then be held in the State Senate.

The State Ethics Commission is also currently investigating Judge Keller; a hearing has been scheduled for August 16th to investigate the judge’s actions in the Richard Case. In addition, the Ethics Commission is investigating Judge Keller’s omission of 20 million dollars in Dallas area real estate holdings from mandatory disclosure forms filed with the Commission.

Something to tide you over till August, if nothing else. I’ll be interested to see how the debate goes on this one, that’s for sure.

Perry walks back secession talk

As the sun rises in the east, so do politicians who say stupid things revise and extend those remarks afterward when people start asking them questions about what they really meant. And so it was the case with Rick Perry, who insisted to reporters that he didn’t actually mean it when he said that Texas might look to secede if we got fed up enough with Washington, whatever that means. It might have been nice if the reporters had pressed him a bit more about the crowd to whom he made his initial statements, who were chanting “Secede! Secede!” in agreement with what they sure as heck thought he was saying, but I suppose you can’t have everything. Regardless, Democratic leaders such as Jim Dunnam and Rodney Ellis and gubernatorial candidate Tom Schieffer have rightly jumped on Perry for his idiocy, and I hope more will join in. (Anyone heard from Kinky Friedman on this?) It’d be nice if a few Republicans expressed some concern about making such intemperate statements, at least the ones who haven’t been busy making their own. Needless to say, I’m not holding my breath.

Of the many things that bother me about this, I think it’s the fact that once again a Texas Republican has made national news in a way that disgraces the state and makes us look like a bunch of rubes and fools. It’s been a nonstop parade of idiocy this year – Sharon Keller, the SBOE clown show, Louie Gohmert, Betty Brown, and now Rick Perry. I realize that there’s a lot of people who don’t care what others think about us, indeed who consider it a badge of honor to be looked down upon by the rest of the country and the world, but nothing good can come out of this. We can be as business-friendly a state as we want to be, but if people don’t want to relocate here because they’ve had such a negative impression of the place because of stunts like these it won’t do us any good. Exceptionalism isn’t necessarily an asset.

Most of all, I can’t believe I have to say any of this. Secession, for Christ’s sake. Because some people are unhappy that they lost an election. Remember how a bunch of celebrities whined to the press in 2000 and again in 2004 that they’d leave the country if Bush won? Remember how we all thought they were jackasses for saying that? Remember how Republicans in particular piled on them for their knavery? Boy, those sure were the days.

Keller’s day in court set for August

Not as soon as I would have liked, since I think this saga has dragged on long enough, but at least we have a date.

Mark it in ink: The trial to assess whether Judge Sharon Keller violated her duty as head of the state’s highest criminal court will begin Aug. 17 in Austin.

Neither side is willing to entertain a compromise that could derail the trial, which could last a week or longer and help determine whether Keller remains presiding judge of the Texas Court of Criminal Appeals.

“There is no possibility of Judge Keller accepting anything other than a dismissal of the charges,” said her lawyer, Chip Babcock.

That won’t happen, said Seana Willing, executive director of the State Commission on Judicial Conduct, which charged Keller with improperly closing her court to an after-hours appeal by death row inmate Michael Richard in 2007.His execution later that night made international headlines.

The commission might be willing to accept an agreement that included a public censure of Keller, Willing said. “But I don’t see the judge offering to accept anything that acknowledges misconduct, and that would be the only thing we would consider,” Willing said.

Well, someone’s going to walk away from this unhappy. It’s going to be hard, but I’m going to try to keep my expectations low.

Both sides are conducting discovery under civil court procedures while the commission searches for an Austin courtroom capable of handling the expected crowd. “At least for the first day or so, I imagine the trial will be heavily attended,” Willing said.

Perhaps if we sold tickets we could pay poor indigent Keller’s legal fees.

A reprimand would be appealed to the Texas Supreme Court, Babcock said. A vote to remove Keller from the court, where she has sat since 1994, would be reviewed by a specially formed panel of seven appellate court judges.

I try not to constantly harp on the question of how Justice Keller would render a decision in this case if she were the one judging some other defendant, but I can’t help it. One can easily imagine attorney Babcock raising all kinds of hypertechnical points in Keller’s appeal if she gets an unfavorable ruling. One can also easily imagine Justice Keller sniffing with disdain at those technicalities, and finding a way to dismiss them regardless of their merits. Things sure do look different when you see them from an unfamiliar perspective, don’t they? Thanks to Grits for the heads up. Stand Down Project has more.

What else have you not told us, Sharon?

As we know, Sharon Keller, the Presiding Judge of the Court of Criminal Appeals, has asked that the state pick up her legal fees in defense of the charges against her on grounds that paying for her own attorney would be financially ruinous for her. And if you were to ignore the vast financial resources that she’s been failing to disclose as required by law, that might even be true.

The sworn statement Keller was required to file with the Texas Ethics Commission last April reflected income of more than $275,000, including her annual state salary of $152,500. It also showed that she owned at least 100 shares of airline stock, a home in Austin and one commercial property in Dallas. County tax records valued the properties at about $1 million.

Keller’s statement did not list her ownership interest in seven other residential and commercial properties in Dallas and Tarrant counties. Those properties are valued collectively by county appraisal districts at about $1.9 million.

Among Keller’s unlisted properties are two homes valued together at just over $1 million in the family’s compound across from the Dallas Arboretum. Keller is listed as sole owner under Sharon Batjer, her married name. She was divorced in 1982.

The other omissions include two Keller-owned properties valued at about $823,000: a vacant commercial site in Euless and an occupied commercial property next to Keller’s Drive-In on East Northwest Highway, a landmark hamburger restaurant operated since 1965 by the judge’s father, Jack. Also not disclosed are three properties valued at $114,000 and owned by Keller’s 27-year-old son, a law student whom she claims as a dependent.


Keller’s assets, including those she is not required to disclose to the state, could reveal that she is even wealthier.

Her 2008 statement to the ethics commission did not list about $3 million in real estate held by three family corporations or trusts, in which she has an interest. State law requires that officeholders list any corporations in which they are an officer or director. Keller did not do so for the three family-run entities, although she did acknowledge earning income of at least $25,000 from a trust in her father’s name.

State law does not require asset disclosure if the officeholder does not have at least a 50 percent interest. Records do not show Keller’s percentage holdings, and neither she nor her lawyer would comment on any details of The News’ findings. Keller also did not list two properties worth about $796,000, owned by a family corporation in which her dependent son is an officer, as she is required by law to do.

Officeholders are also required to list outstanding debt over $1,000; Keller listed none on her latest report to the ethics commission.

Last year, Keller bought a residential property in Hunt County, valued on tax rolls at $251,000. She will not have to report that property until this year’s filing.

Oopsie. Apparently, even her high-priced defense attorney concedes that maybe she could afford his services after all. He still thinks she deserves them for free, because she’s a public servant and that makes her special. I say good luck with that argument. Thanks to Mark Bennett for the catch.