Rick Casey: Let’s give Judge Keller a free lawyer

The following is a great column by Rick Casey of the Houston Chronicle about Sharon Keller's request for the State of Texas to pay her legal fees.

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, says the State of Texas is violating her constitutional rights.

We are not paying for an attorney to defend her against charges by the state Commission on Judicial Conduct. The Commission’s charges involve a controversy in which she allegedly rebuffed attempts by lawyers for a condemned man to file a last-minute appeal based on a U.S. Supreme Court decision earlier on the day of his execution.

Keller faces the equivalent of a trial that could result in her removal from the bench.

In a response filed Tuesday, Keller says the charges “are unconstitutional because (Keller) has been denied the right to counsel by the Texas and United States Constitution.”

The response, prepared by her attorney Charles L. Babcock, cites neither the provisions in the constitutions nor in case law supporting such an interpretation, but this taxpayer would be willing to provide an attorney for her.

After all, we 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. Babcock.

A ruinous legal bill

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. Lawyers like:

• Robert McGlohon, who was appointed by Keller’s court to represent a death row inmate shortly after the Texas Legislature in 1995 passed a law requiring for the first time that indigent condemned men and women be provided tax-paid attorneys for the automatic habeas corpus appeal.

McGlohon had been a lawyer less than three years, had never even assisted on a death penalty case, and was suffering serious health problems. The appeal he filed was so inadequate that it didn’t raise any issues that are required in habeas filings. McGlohon, apparently aware of his failings, didn’t even file a bill on the case.

When later lawyers filed a competent habeas appeal, Keller joined in the majority in ruling it improper because a defendant got only one shot at the target.

In a dissent, then-Judge Morris Overstreet called the decision “a farce and travesty,” and a federal judge called it “a cynical and reprehensible attempt to expedite petitioner’s execution at the expense of all semblance of fairness and integrity.”

• David K. Chapman, who was also appointed by Keller’s court and also was inexperienced in death penalty cases. The State Bar had suspended him twice before the appointment and once shortly after, but probated the suspensions. He was bipolar and admitted it affected his performance. Among other things, Chapman forfeited his client’s right to take the case into federal court by missing a deadline.

Three fellow judges found the attorney to have been incompetent, but Keller, in the majority, wrote that he must be competent only at the time he was appointed, and the fact the bar gave him probation showed it “still found counsel to be competent to practice law.”

• Any lawyer with serious narcolepsy. Keller has joined in opinions ruling that a sleeping defense lawyer is not necessarily ineffective, including an opinion that suggested it may be a strategy to win sympathy from the jury.

It didn’t work for those late defendants, but maybe it would for Keller.