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State Commission on Judicial Conduct

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 gets slammed by Ethics Commission

Wow.

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.

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.

More on Judge Jackson

Prosecutors aren’t done investigating Harris County Criminal Court Judge Don Jackson, who was indicted this week on charges of official oppression.

Donna Hawkins, a spokeswoman for the Harris County District Attorney’s Office, said investigators in the public integrity division want to know whether there are other people who have any knowledge of similar behavior in Jackson’s court.

It seems likely to me that if this charge is true that there are other incidents like it. I suppose it’s possible that a 17-year veteran of the bench, who had a good reputation among the attorneys who argued before him, would become sufficiently obsessed with a defendant to offer her a deal in return for sexual favors, but it strikes me as more probable that such behavior is part of a pattern. That’s assuming the charge is true – Judge Jackson is very much innocent until proven guilty, and we have no idea what his defense will be. But if others come forward with similar stories to tell, it shouldn’t be too big a surprise. Mark Bennett and Miya Shay have more.

Harris County criminal court judge indicted

Oops.

A Harris County Criminal Court-at-Law judge was indicted Thursday on a misdemeanor charge of official oppression, accused of offering to get a DWI defendant in his court help getting her case dismissed in exchange for a sexual relationship.

According to the indictment, Judge Donald W. Jackson, 59, offered to get the young woman “a different attorney to get her case dismissed if she would be interested in the defendant and enter into a relationship with him that was more than a one-night stand.”

If convicted, the 17-year judge could face up to a year in jail and a $4,000 fine.

Although only one incident is alleged, prosecutors said Jackson committed the offense in three possible ways on Feb. 19: unwelcome sexual advances, a request for sexual favors and verbal conduct of a sexual nature.

The subject of the judge’s alleged actions, Ariana M. Venegas, was charged with driving while intoxicated on Feb. 1 and her case ended up in Jackson’s court. The 27-year-old Tomball woman gave a Harris County grand jury a sworn affidavit and is cooperating with prosecutors in the case, her attorneys said.

[…]

The charge was handed down amid rampant courthouse speculation fueled, in part, after Jackson recused himself from Venegas’ case on June 3.

Joe Stinebaker, spokesman for Harris County Judge Ed Emmett, said County Court-at-Law Judge Jean Hughes, the administrative judge over the county criminal courts, will appoint a special judge to take over Jackson’s docket.

Stinebaker said the district attorney’s office will notify the Texas Commission on Judicial Conduct, which will decide if suspension is appropriate, and if so, whether the suspension should be with or without pay.

Bob Wessels, courts manager for the County Criminal Courts at Law, said Jackson was expected to remain on the county payroll drawing a $140,000 salary while the case is pending.

Jackson posted bail of $1,000. The charge, a misdemeanor, will be handled by the 351st state District Court, a felony court, because of Jackson’s position.

There had been rumors about Judge Jackson resigning from the bench for at least two weeks, which is when I first heard about this. Hair Balls made fun of local defense attorney/blogger Paul Kennedy for jumping on what turned out to be a premature report, then having to retract it. Turns out that Kennedy, who posted a copy of the indictment, got to say that he was right all along. I look forward to hearing what Judge Jackson’s defense is.

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.

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.

You have the right to an attorney, but it doesn’t have to be of your choosing

In her response to the charges pending against her before the State Commission on Judicial Conduct, Sharon Keller made the claim that the state should foot her legal bills. Rick Casey notes the problem with that claim.

[We do] provide attorneys for accused criminals.

True, we don’t hire lawyers for accused criminals who make $152,500 a year, as Judge Keller does.

And we provide lawyers only for indigents in danger of losing their freedom or their lives, not simply their jobs like Judge Keller.

And we don’t allow indigent defendants to choose their own free lawyers, particularly the highly regarded likes of Mr. [Chip] Babcock.

Keller wants the taxpayers to pick up the “usual and customary fees” of Babcock’s firm, despite the fact that, according to the filing prepared by Babcock, hiring him is to “risk a financially ruinous legal bill to defend against these charges which are without merit.”

The judge should know better, especially in these tough times, than to ask us taxpayers to agree to a lawyer whose usual and customary fees can lead to a ruinous legal bill. However, I personally would be willing to chip in for the kind of lawyers whom Keller has found acceptable for people whose lives were at stake.

You can picture what kind of lawyer that is (hint: the incompetent, indifferent, sleep-through-the-trial kind), but Casey provides a few examples in case your imagination is lacking.

Mark Bennett, who compliments Casey for his efforts, has his own critique of Keller’s defense.

She spends several paragraphs reiterating the facts of Michael Richard’s case (the “he had it coming” defense), explains that Richard was not seeking not to be executed, but rather not to be executed using the current protocol (the “only hastening the inevitable” defense) and points the finger at Court of Criminal Appeals counsel Edward Marty and Richard’s lawyers (the “some other dude did it” defense).

My second favorite part of the answer is where Judge Keller claims that “If applied to these charges [Article 5] Section I-a(6)A [of the Texas Constitution] is unconstitutional under the United States and Texas Constitutions.” So part of the Texas Constitution is itself unconstitutional under the Texas Constitution.

Maybe we should have provided her with an attorney after all. I’m sure there’s plenty more where this came from. And for the record, I said some of this stuff last month, after Clay Robison wrote about Keller’s request, just before she filed for an extension.

Keller blames others for her actions

Court of Criminal Appeals Presiding Judge Sharon Keller, who has been formally accused of violating her duty as a judge in the matter of the Michael Richard case, has filed her response to the State Commission on Judicial Ethics. (For which she was given an extension, because she couldn’t get it done in time. God really does have a sense of humor.)

Keller said the Texas Defender Service has filed previous death penalty appeals with the court after the clerk’s office closed. She also noted that the Texas Rules of Appellate Procedure allow for after-hours appeals to be filed either with the clerk or a judge of the court willing to accept the case.

Keller said all the judges of the court are listed in the blue pages of the telephone book and the phone number of court General Counsel Ed Marty phone number was listed on his letterhead and known to (the defender service.)

She said when Marty called her on the day of the execution about a defender service request that the clerk’s office stay open late, she understood that only to be about the clerk’s office, not Richard’s ability to file an appeal.

“Judge Keller did not, and could not have, if she had wanted to, close access to the court in light (of the appellate procedure rules),” said the brief by her lawyer, Chip Babcock.

You can find a copy of the full response here. You might then want to reread the factual allegations (PDF), or just Rick Casey’s summary, and note how casual with the truth Keller has been about this all along. I don’t know about you, but I can’t help but wonder how Presiding Judge Sharon Keller would rule on this matter if it had come before her. Better hope the commission isn’t as nakedly pro-prosecution as you are, Judge.

The Texas Defender Service said Keller is trying to deflect attention because she “knowingly broke the rules” and caused Richard’s execution when he likely could have gotten a stay.

Neal Manne, counsel for the service, said the judicial conduct commission found that Keller knew she was not the assigned judge handling the Richard execution and that she should have referred the calls to that judge, Cheryl Johnson.

“The commission has properly focused on Judge Keller’s conduct, and has not in any way suggested that Texas Defender Service acted improperly or was at fault,” Manne said.

Keller’s defense, which apparently includes some last-minute edits, referenced that recent Chron story about missing deadlines in capital cases. Well, we did know that she doesn’t think she did anything wrong, so it stands to reason that someone else must be at fault. Simple, really.

No idea when the Commission may make its ruling. Any lawyers out there want to comment on her defense?

NYT on Keller

This story doesn’t really advance our knowledge of Justice Sharon Keller, but it does provide some insight as to her supporters. At least, it confirms that she has them. How they can reconcile their opinion of her with some of her more outrageous rulings and statements about the justice system and the appellants that appear before her, we don’t know because they didn’t ask. But we do get one interesting new tidbit:

Judge Keller’s lawyer, Charles L. Babcock, said that many people shared in a failure of communication that day and that her role was minor.

“Hindsight being 20/20, I think Judge Keller is certainly sorry that the system broke down,” Mr. Babcock said. “As far as her overt actions, I don’t think she feels she did anything wrong. Nor do I.”

Well, of course she doesn’t think she’s done anything wrong. I don’t think she’s ever thought she’s done anything wrong – that’s a big part of the problem here, and a big part of the reason why she needs to be an ex-judge, stat. As such, I don’t think she’ll be taking up Evan on his offer any time soon. And finally, while I realize that attorney Babcock is just zealously representing his client, it seems to me that if she genuinely was sorry that the system broke down – not that she had anything to do with it, mind you, or that what she did have to do with it was in any way in the wrong – she might want to take some action to ensure that something was done to try to prevent it from breaking down that way again. But hey, since she didn’t do anything wrong, that must be someone else’s responsibility. Clearly, it’s never hers.

UPDATE: Scott and Vince have more.

Keller gets an extension

News item:

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, now has until March 24 to answer charges that she violated her judicial duties by declining to accept an after-hours appeal from a death row inmate in 2007.

Keller requested, and received, an extension to a 15-day response deadline after the State Commission on Judicial Conduct filed the charges last Thursday.

The next step in the process — appointing a sitting judge to serve as special master for Keller’s trial — cannot take place until the response is filed.

Evan Smith speaks for me:

Sharon Keller couldn’t make her deadline to file a response to the State Judicial Commission’s charges against her, but no one “closed” the “office” at “5 p.m.” […] It goes without saying that Michael Richard should have been so lucky.

Yeah. What he said.

Meanwhile, on a related note:

I doubt that many people will shed tears, but Texas Court of Criminal Appeals Presiding Judge Sharon Keller may have to pay her own legal expenses to defend herself against charges she improperly shut the door on a condemned inmate’s last-gasp appeal.

The judicial misconduct charges brought against Keller last week by the Commission on Judicial Conduct could result in her removal from office and, if she fights them, thousands of dollars in legal bills.

Officeholders often can use political funds to pay lawyers. But Keller, according to a filing last month with the Texas Ethics Commission, has no money in her political account. State law also prohibits Keller, who won’t be up for re-election until 2012, from raising any political money before June 2011. And any donation of legal services could be construed as an illegal political contribution.

The judge’s attorney, Chip Babcock, has asked the judicial conduct commission to pay her legal expenses.

If the answer is no, will Keller fight, or resign?

I say if the commission agrees to pay for Justice Keller’s defense, it should be done in the same fashion as it would be for any other indigent defendant. If Attorney Babcock is willing to work at that fee schedule, then she can continue to employ him. If not, I’m sure there are plenty of other attorneys who could use the gig. Given the nature of the cases that often come before the Court of Criminal Appeals, and the consideration Justice Keller is known to give them, I think this is perfectly just.

Finally, Vince reports that Keller’s fellow judges just want her to go away.

Speaking on condition of anonymity, [a source closely connected with the Texas Court of Criminal Appeals] told Capitol Annex that several justices are not eager to take part in a trial proceeding as part of the Commission on Judicial Conduct complaint against Keller because it would result in further revealing the content of private meetings and closed door activities–many of which were revealed in the publicly distributed notice of formal proceedings, much to the chagrin of judges and longtime court employees. Each of the court’s other eight justices would most likely be called as witnesses. Without question, Justice Cheryl Johnson would be a key witness for the TCJC.

According to the Court, the justices are fearful that a public trial for Keller could expose the court to more significant media scrutiny, could irreparably damage relations between the justices necessary for the court to function properly, and could hurt the justices politically during a time when Democrats have a better than average shot at capturing statewide offices. The source advised that at least one justice is fearful that some or all of the Court of Criminal Appeals Justices could be subject to similar judicial conduct complaints as the one now facing Keller simply because the other justices did nothing to stop Keller and did not more closely examine Keller’s actions, the source said. Another justice is reportedly worried that increased publicity could force U.S. Attorney General Eric Holder to launch an investigation into whether or not Michael Richard’s’ civil rights were violated–further exposing the court and the justices to a level of public examination they are unaccustomed to.

Much as I want to see Keller go, I think I can wait until after the formal public hearing has been held. Let a little sunshine in, I say.

The case against Keller

Rick Casey reads through the Judicial Conduct Commission case against Court of Criminal Appeals Justice Sharon Keller, and finds that her actions were worse than even I had thought.

We already knew that Keller and the other judges were aware of the Supreme Court decision. We didn’t know that the court’s general counsel, Edward Marty, had started drafting a proposed order in anticipation that Richard’s lawyers would file a request for a stay .

Nor did we know that Judge Tom Price had drafted a dissenting opinion and circulated it to the other judges, including Keller. Nor that all the judges were notified about 2:40 p.m. that the Harris County District Attorney’s Office had reported that Richard’s lawyers were planning to file a request.

The Supreme Court decision was so much on the court’s mind that Judge Cathy Cochran forwarded to all her colleagues a copy of the Kentucky Supreme Court decision that was being challenged.

Under court procedures, Judge Cheryl Johnson was the designated judge who was supposed to receive all messages regarding Richard’s case. She and Marty planned to stay at the office to receive any messages until Richard was executed.

Chief Judge Keller went home early and was called shortly before 5 p.m. by Marty. Richard’s lawyers were having computer problems and wanted the clerk’s office to stay open until 5:20 or so to receive their filing. Rather than forward the message to Johnson as policy required, Keller instructed Marty to tell the lawyers no. The lawyers made attempts up until 6 p.m. to deliver the filing but were told nobody was there. Richard was executed at about 8:20 p.m.

Two days later, the Supreme Court stopped all executions by injection based on the same arguments Richard’s lawyers made. Richard was the only convict executed until six months later, when the Supreme Court OK’d lethal injection as constitutional.

Here’s the stunner: The morning after Richard’s execution, the nine judges had their weekly conference. At the end of it some of the judges expressed surprise that Richard’s lawyers hadn’t submitted a filing.

Cochran even raised the question — hypothetically, she thought — of what would happen if the lawyers showed up after the clerk’s office closed. She said the court should accept the filing anyway. According to witnesses, Keller said, “The clerk’s office closes at 5 p.m. It’s not a policy, it’s a fact.”

Keller lacked the decency or the courage to tell her colleagues about the call she had received.

What a thoroughly despicable human being. Burka thinks the end is near for her tenure on the bench – one way or another, he says, she’s going to go away. All I can say is that’s great if true, and long, long overdue.

Of course, she has two weeks to respond to the charges, and she’s got herself a defense attorney, who I’m sure will zealously represent her interests at the public trial she’ll get.

Keller will be allowed to present evidence, raise objections, and call and cross-examine witnesses in a forum that will resemble many civil court trials, said Seana Willing, executive director of the Commission on Judicial Conduct.

“The judge can put on her case and we can put on our case,” Willing said.

Can’t wait to hear what she has to say for herself. One thing I’m sure of is that her defense attorney will do a far better job for her than the attorneys for some of the appellants who have appeared before her ever did for them. Not that she cares, of course.

One last thing, from the Chron story:

The proceedings against Keller will take between six and 18 months to complete, Willing has said.

So I may have to wait that long after all. Alas.

Judicial conduct commission moves against Keller

About damn time.

The state judicial ethics commission has charged Sharon Keller, the presiding judge of the state’s highest criminal court, with violating her duty and bringing discredit upon the judiciary when she declined to allow a death row prisoner to file an after-hours appeal in 2007. The inmate, Michael Richard, was executed about 3 1/2 hours later.

Keller will face a public trial to answer the charges and could be removed from office, reprimanded or exonerated.

A complaint against Keller, who presides over the Texas Court of Criminal Appeals, was filed with the commission more than a year ago. An editorial in the New York Times this morning said the commission’s failure to act during that time was inexcusable.

State Rep. Lon Burnham (D-Ft. Worth) filed a resolution in the Texas House earlier this week calling for Keller’s impeachment.

That complaint was filed on October 11, 2007. They sure do take their time on the Judicial Conduct Commission, don’t they? I have to wonder, if Rep. Burnam had not filed his resolution to impeach Justice Keller, would we still be waiting on them? The timing looks awfully convenient to me. I mean, better late than never and all that, but c’mon. Why in the world did it take nearly a year and a half for this?

The Times editorial is here, by the way. Patricia Kilday Hart applauds it, while Grits is starting to think that impeachment is appropriate. I say if there’s a legitimate way to get her off the bench now, it should be pursued. I just hope we don’t have to wait another 16 months for an answer to that.

UPDATE: Mark Bennett has the notice of formal proceedings (PDF) against Justice Keller.

Burnam files resolution to impeach Justice Keller

State Rep. Lon Burnam (D, Fort Worth) has dropped a little bomb called HR480, the text of which calls for “House of Representatives of the 81st Texas Legislature [to] adopt the following procedures to consider the impeachment of Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, for gross neglect of duty and conducting her official duties with willful disregard for human life”. I’ve got his press release beneath the fold. I’ve no idea how likely this is to get anywhere – this is still a Republican-controlled legislature, so my guess is that it’s highly unlikely – but I applaud the move and hope we get to have a nice thorough airing of grievances against the chief culprit of Texas’ worst court. Vince has also noted this. Scott? Mark? Murray? What do y’all think about this?

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