Tuesday, March 10, 2009

Second Sharon Keller Incident Reported to Commission on Judicial Conduct

According to the Dallas Morning News, Judge Sharon Keller might have been involved in another misconduct, this time over the case of Larry Swearingen who has a strong claims of innocence.
By STEVE McGONIGLE / The Dallas Morning News

Just weeks before the presiding judge of the Texas Court of Criminal Appeals was charged with "willful and persistent conduct" that discredited the judiciary, she was involved in a second incident in which lawyers for a condemned man were initially blocked from filing a last-minute appeal.

Judge Sharon Keller, a former Dallas prosecutor, was called shortly after the court's general counsel and a clerk refused to formally accept legal filings requesting a halt to the execution of Larry Swearingen, a well-placed source told The Dallas Morning News. Keller's attorney confirmed she was alerted but said it was after the incident was resolved.

The January incident was reminiscent of the September 2007 case in which Michael Richard was executed after the court, allegedly on Keller's orders, refused to stay open past business hours to accept his attorneys' appeals.

Amid the nationwide controversy that erupted over Richard's execution, the state's highest criminal appeals court formalized its rules of procedure for executions. The written procedures said the duty judge should be notified of any filings and work closely with the general counsel "to reasonably accommodate" defense lawyers, especially if they notified the clerk's office that they were at risk of missing the deadline.

The Swearingen incident showed that problems remained.

Swearingen's lawyers arrived at the clerk's office at 5:01 p.m. on Friday, Jan. 23, after calling to say that copying problems were causing unexpected delays. Once inside, they were told their filings would not be entered into the court record until the office reopened Monday morning. That delay could have shortened the court's timeframe for evaluating the appeal and subjected defense counsel to sanctions for failing to meet a 48-hour deadline for filing petitions in execution cases.

Their pleadings were accepted only after another judge on the court, Cheryl Johnson, intervened and ordered the chief clerk to return to the courthouse, several people involved in the matter said.

Although there is some dispute over what role Keller may have played in the latest case, she has long been a lightning rod for opponents of the death penalty, who contend she routinely favors the state's position in capital cases. After the Richard execution, even some of her fellow judges were publicly outraged.

One of them, Johnson, had been the duty judge for Richard but had not been notified of the filing problems in that case. She intervened in the Swearingen case after his lawyers called her for help.

She later reported the incident to the state Commission on Judicial Conduct, the source said, on condition of anonymity. The commission interviewed the court's general counsel about Swearingen, the source added.

Judge Mike Keasler said he, too, heard the commission had interviewed the general counsel, although he was not sure why.

The executive director of the judicial conduct commission, Seana Willing, said she could not confirm or deny knowledge of the Swearingen incident. She said she also could not discuss whether a complaint had been filed or anyone had been questioned.

Johnson declined to discuss the matter.

"Given all that's pending right now, I really don't want to comment," she told The News. "Richard was not pending, and Swearingen is still pending. I'm going to leave it at that."

Unlike Richard, Swearingen was not executed. A federal appeals court stayed his execution the day before he was to die to give his lawyers more time to pursue their case.

Concerns about how Swearingen played out, including why the judge assigned to the case was not notified, have prompted court members again to try to clarify their procedures, Keasler said.

"We need to get things as clear and as understandable so that everybody knows about it as much as possible," he said.

Sian Schilhab, the court's general counsel, downplayed the Swearingen incident and characterized it as a misunderstanding caused by the defense team's confusion. The filing was ultimately accepted without harm to Swearingen or his attorneys, she said.

Schilhab, who became general counsel last August after her predecessor retired under pressure because of his role in the Richard case, refused to say whether she had called Keller or whether she had been questioned by the commission.

"I feel like that's internal court procedures and it's privileged information. I feel like I would be violating my own ethics if I said anything," she told The News.

The commission has spent more than a year investigating complaints against Keller for allegedly ordering the court's staff to reject a last-minute filing by attorneys for Richard, a convicted murderer from the Houston area.

On Feb. 19, the commission charged Keller with "willful and persistent conduct that casts public discredit on the judiciary." It ordered a public hearing, which could produce a recommendation that Keller be removed from office.

Keller, who has been on the Austin court since 1995 and presiding judge for the past eight years, has insisted she did nothing improper in the Richard case. Her attorney, Chip Babcock, has said she intends to fight the charges and will not resign.

Babcock confirmed that Keller was called about the filing dispute in the Swearingen case, but he said he believed the conversation occurred a day or two later and was "just informational."

"She was otherwise not involved at all in this incident," he said.

Babcock said he knew a staff member had been questioned by the judicial conduct commission, but he did not know who or why. He said he did not know whether Johnson had spoken to the commission about Swearingen.

While the extent of Keller's involvement in the Swearingen case is unclear, Schilhab acknowledged that the duty judge was not contacted. She said there was nothing to discuss with him.

Schilhab insisted that no judge was called before she and the clerk told Swearingen's attorneys that their appeal had arrived too late to be file stamped within the 48-hour deadline.

"They could have filed it Monday morning," Schilhab said. "They would have just had to file an extra little piece of paper with it. No big deal."

Swearingen was sentenced to die for the 1998 murder of a 19-year-old college student. His lawyers had filed several unsuccessful appeals to the Court of Criminal Appeals seeking to reverse his conviction and spare his life.

His latest appeal claims that newly discovered autopsy evidence proves the victim was murdered close to the time her body was found in the Sam Houston National Forest – long after Swearingen was jailed on unrelated traffic offenses.

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