Tuesday, April 28, 2009

Legislative testimony by TCRP board member and TCRP director regarding the proposed impeachment of Judge Sharon Keller:

A Letter to the House Committee on Judiciary & Civil Jurisprudence
Texas Legislature

Re: HR 480 (impeaching Judge Sharon Keller)

Honorable Chair and Committee Members:

As Director of a statewide civil rights nonprofit organization, I respectfully
urge passage of HR-480 so that the House of Representatives may begin the
process of considering the impeachment of Judge Sharon Keller for abuse of her
office, one of the most important judicial positions in the state.


Attached to this testimony are the Notice of Formal Proceedings (No. 96),
Inquiry Concerning a Judge, before the State Commission on Judicial Conduct
and the Ethics Experts' Declaration, filed in that same matter. I need not
repeat the allegations and statements in those documents, but I do accept,
ratify, and incorporate them as part of my testimony.

I agree in all respects with the twenty-four ethics experts, who recently
advised the Commission of Judicial Conduct that Judge Keller is "guilty of
'incompetence in performing the duties of office, willful violation of the
Code of Judicial Conduct, [and] willful [and] persisted conduct that is
clearly inconsistent with the performance of [her] duties.' In addition, her
egregious misconduct 'casts public discredit upon the judiciary [and upon the]
administration of justice.' [footnote omitted]" The same in my view supports
impeachment of Judge Keller or, more to the point, are more than sufficient
for this committee to recommend to the House that it appoint an impeachment
committee on this matter.

These charges, if true and I believe them to be so, are more than enough to
support impeachment, but there is another reason, even stronger than the
others -- Judge Keller essentially deprived Michael Richard of his life for at
least eight months, that is, she caused his life to be ended early without due
process. The victim of Judge Keller's action was Doreen Anderson, Mr.
Richard's daughter, who had a close relationship with her father.

How does one quantify the eight months or more that Ms. Anderson lost with her
father? He may have been convicted of a crime, but she was not.


"The power of impeachment shall be vested in the House of Representatives."
Tex. Const. art. XV, § 1. At the time Texas adopted its constitution in 1876,
impeachment was well-established in English and American parliamentary law.
Ferguson v. Maddox, 263 S.W. 888, 892 (Tex. 1924).

Impeachment is designed to reach officials in high places who are guilty of
"official delinquencies or maladministration." The offense does not need to be
a statutory or common law offense. Impeachment offenses are generally
considered high crimes and misdemeanors, which at the time the constitution
was adopted meant grave official wrongs. Id..

Because of the nature of impeachment, the offenses cannot be defined, but it
is a general principle upon which the offenses rest can be stated. Id. The
U.S. Constitution defines impeachment offenses as "treason, bribery, or other
high crimes and misdemeanors" U.S. Const. art. 2, § 4.

Many states mirror this language in their own constitutions, while others add
"misdemeanors in office," "maladministration," "oppression in office" and
other similar offenses. Ferguson, 263 S.W. at 892. The Texas Constitution
adopted the existing and well-known principle of impeachment, as understood at
the time. Id.

Impeachment is the only remedy and accountability mechanism under the Texas
Constitution. Judicial immunity shields judges against state and federal
litigation. We tried in the case of Judge Keller, and our federal suit was
dismissed for that reason.

Even though the Commission on Judicial Conduct is considering an action
against Judge Keller, it may or may not take appropriate action. However, the
only constitutional remedy is impeachment by the representatives of the people.

The framers of the 1876 Texas Constitution and the voters who ratified it
created a strong judiciary. The 1876 Constitution deliberately fashioned a
weak legislature and a weak governor because of past abuses of power. The
judiciary was the one branch of government that kept power, and very extensive
power. The drafters of the constitution felt that only judges could protect
the people against the government and monied interests taking away their
rights. For that reason, the populist tradition of electing judges was framed
into our current constitution. The authors of the constitution and voters
wanted to elect their judges to keep direct control over them so they would
not become beholden again to the big financial interests of the state and
political caprice -- as they had been in prior times when appointed by the

Impeachment thus is the people's way of undoing the election of a judge who
has betrayed their trust and acted with "official delinquency," that is,
abused their office to the extent of violating the mandate to administer
fairly and impartially the constitutions of the nation and of the state.

The charges against Judge Keller are sufficiently grave that the House of
Representatives has to duty to formally consider them, and then act on them.
We believe the ultimate conclusion of this process would be impeachment by the
House, trial by the Senate, and removal from office.

Whether Judge Keller is ultimately convicted or vindicated is for a later
date, but the House must at least be faithful to its obligation to formally
consider and act on the substantial charges brought against her.

Thank you kindly for your attention.

James C. Harrington
Texas Civil Rights Project
- - - - -


I am an attorney in private practice in Austin in the law firm of Herring &
Irwin, L.L.P. My principal practice area is the law of lawyering--which
focuses on issues of legal ethics, legal malpractice, and professional
responsibility for Texas lawyers. In 1990, I wrote my first book, Texas Legal
Malpractice & Lawyer Discipline, which I now update annually. Thus, I've been
writing about and teaching legal ethics for some 20 years. I also served two
terms on the Texas Supreme Court's Advisory Committee and served as Chair of
the Texas Supreme Court's Statewide Task Force on Sanctions and also the State
Bar's Committee for the Prevention of Legal Malpractice and Grievances. I have
served as an expert witness on legal ethics issues for the State Bar of Texas,
for the Chief Disciplinary Counsel, for the Office of the Texas Attorney
General, and for various private lawyers and litigants. I've attached a copy
of my resume to this testimony. I offer this testimony on my own behalf and
not on behalf of any other person or organization.

I appreciate this Committee's consideration of H.R. No. 480, concerning the
possible impeachment of Judge Sharon Keller, and I respectfully offer my
testimony in support of the Resolution. In my opinion, the conduct of Judge
Keller, as reported in the media and as charged in the "Notice of Formal
Proceedings" (hereinafter "Notice") in Inquiry No. 96 before the State
Commission on Judicial Conduct, clearly meets the constitutional standards for
impeachment under Article XV of the Texas Constitution, as well as the
standards for removal of a judge or justice from office, as provided in
Section 1-a(6)A of Article V of the Texas Constitution.

Before I outline the specific allegations that in my view meet those
constitutional standards for impeachment and removal, I want to emphasize
three general points that I believe make this Resolution a particularly
important matter for legislative action.

First, if the published allegations are correct, Judge Keller was personally
responsible for killing a man on a day when he should not have died. That is
the most severe possible consequence imaginable for judicial misconduct.1 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. By comparison, the charges against the last judge
impeached by this Texas House, Judge O.P. Carrillo, alleged misconduct that
included stealing groceries; using public funds to pay ranch hands and other
private employees; using public equipment on his ranch; filing a false
financial statement; having conflicts of interest; and conspiring to
improperly influence a grand jury.2 The Texas Senate acquitted Judge Carrillo
on the impeachment article alleging stealing groceries, but convicted him on
an article alleging conspiracy to collect government rental monies on
non-existent equipment--and dismissed the other articles without a decision.3
In short, the Texas Legislature convicted Judge Carrillo and removed him from
office for false rentals. He did not wrongfully cause anyone's death, which is
exactly what Judge Keller allegedly did.

Second, based on Judge Keller's Answer filed in the Commission on Judicial
Conduct proceedings, and based upon the published remarks of her lawyer, it
appears that she is claiming that the lawyers for Mr. Richard wanted some
extraordinary relief in the form of keeping the court clerk's office after
5:00 p.m., and then those lawyers capriciously or negligently chose not to
follow other available remedies that permitted an after-hours filing. If that
is her position, I submit that her position is simply not credible. The
lawyers who handled Michael Richard's case were with the Texas Defender
Service (TDS), which was founded in 1995 and is the most skilled, respected,
and experienced organization in Texas providing representation to persons on
death row. Their Board includes law school professors from Texas and across
the country who are expert in death penalty law and representation, including
for example the Co-Director of the Capital Punishment Center at the University
of Texas School of Law, and the Co-Director of the Death Penalty Clinic at
Boalt School of Law. Professor Dow, who worked on the Richard case, heads the
Innocence Project at the University of Houston. He is a superb advocate, and
he knows how these cases work as well as anyone in Texas. In short, in this
field of law practice, they are the best and most knowledgeable lawyers
available. Their commitment to justice is awe-inspiring and legendary.

Third, I think it is very important that Judge Keller's alleged misconduct
took place in the context of a death penalty case. The death penalty is the
ultimate criminal punishment. From 2002 to 2006, 40 percent of the executions
in the United States took place in Texas; in 2007, over 60 percent were in
Texas; in 2008, over 50 percent. Whether you are for or against the death
penalty in Texas is irrelevant to the merits of the present matter. But those
who support the death penalty want that penalty administered fairly and
legally. More than any other single act in the history of Texas, Judge
Keller's conduct in this case has held the death penalty and the Texas
criminal justice system up to international scorn and ridicule. If you google
"Sharon Keller," you get over 42,000 hits--and you find an almost unlimited
number of denunciations of Judge Keller and our system of justice in Texas. We
need to restore respect for Texas justice. The Legislature can do that now,
promptly, and as the elected representatives of the people of Texas, you can
speak with the authoritative voice that this case requires.4

Turning to the grounds for impeachment, I note that Section 2 of H.R. No. 480
identifies as possible grounds for impeachment the following:

. . . gross neglect of duty and conducting her official duties with willful
disregard for human life in connection with her actions on the evening of
September 25, 2007, including her apparent irresponsible refusal to abide by
the prior practice of the Texas Court of Criminal Appeals in order to receive
the appeal of Michael Richard, which conduct may have resulted in Mr.
Richard's deprivation of life without due process of law as guaranteed by the
Fifth Amendment to the Constitution of the United States and Section 19,
Article I, Texas Constitution, by means of a potentially unlawful execution by
lethal injection, and in the embarrassment of the State of Texas in a manner
that casts severe doubt on the impartiality of the Texas Court of Criminal
Appeals and the entire criminal justice system of this state.

In one sense, the charge is broad: "gross neglect of duty . . . including . .
. ." However, in fact the charge appears to be quite narrow, focusing on her
actions during, at most, a few hours on a single day--"in connection with her
actions occurring on the evening of September 25, 2007." The charge fits well
within the broad constitutionally permissible framework for impeachment in
Texas, as enunciated at length by the Texas Supreme Court in Ferguson v.
Maddox, 263 S.W. 888 (Tex. 1924):

While impeachable offenses are not defined in the Constitution, they are very
clearly designated or pointed out by the term 'impeachment,' which at once
connotes the offenses to be considered and the procedure for the trial
thereof. . . . 'Impeachment,' at the time of the adoption of the Constitution,
was an established and well-understood procedure in English and American
parliamentary law, and it had been resorted to from time to time in the former
country for perhaps 500 years. It was designed, primarily, to reach those in
high places guilty to official delinquencies or maladministration. It was
settled that the wrongs justifying impeachment need not be statutory offenses
or common-law offenses, or even offenses against any positive law. Generally
speaking, they were designated as high crimes and misdemeanors, which, in
effect meant nothing more than grave official wrongs.

In the nature of things, these offenses cannot be defined, except in the most
general way. A definition can, at best, do little more than state the
principle upon which the offense rests. Consequently, no attempt was usually
made to define impeachable offenses, and the futility as well as the unwisdom
of attempting to do so has been commented upon. . . .

When the Constitution of Texas was adopted, it was done in the light of, and
with a full knowledge and understanding of, the principles of impeachment as
theretofore established in English and American parliamentary procedure. The
Constitution in this matter of impeachment created nothing new. By it,
something existing and well understood was simply adopted. The power granted
to the House to 'impeach,' and the Senate to try 'impeachment,' carries with
it, by inevitable implication, the power to the one to prefer and to the other
to try charges for such official delinquencies, wrongs, or malfeasances as
justified impeachment according to the principles established by the common
law and the practice of the English Parliament and the parliamentary bodies in
America. The grant of the general power of 'impeachment' properly and
sufficiently indicates the causes for its exercise.

It is said this construction of the Constitution confers arbitrary and
unrestrained power on the Senate. Not so at all. There is no such thing under
our government as arbitrary power. As has often been said, it is a government
of laws, and not a government of men. We most emphatically repudiate the idea
that any officer may be arbitrarily impeached. In the exercise of its exalted
jurisdiction, the Senate must proceed according to law. It must ascertain the
law by an examination of the Constitution, legal treatises, the common law and
parliamentary precedents, and therefrom determine the nature, elements, and
characteristics of impeachable offenses, and, in the light of reason, apply
the principles so worked out to the facts of the case before it. This is not
arbitrary power. It is the exercise of judicial authority under the
Constitution. . . .

Id. at 892. As the Texas Supreme Court emphasized, the impeachment remedy
provided by the Texas Constitution is necessary for "the protection of the
people from official delinquencies or malfeasances." Id. Clearly, all citizens
should be entitled to protection from wrongful execution without due process
of law, and all citizens should be entitled to a fair chance to present their
cases in court. If Judge Keller did what she is accused of having done, it is
difficult to imagine a greater judicial threat to the integrity of the
criminal justice system and to the rights and the very lives of Texans whose
fates are entrusted to that system.

In addition to the broad parameters for impeachment explained in Ferguson and
the specific categories of charges outlined in the Resolution, the standards
for removal of judges and justices set forth in Section 1-a(6) of the Texas
Constitution also are relevant. In pertinent part, that provision states:

Any Justice or Judge of the courts established by this Constitution or created
by the Legislature as provided in Section 1, Article V, of this Constitution,
may, subject to the other provisions hereof, be removed from office for
willful or persistent violation of rules promulgated by the Supreme Court of
Texas, incompetence in performing the duties of the office, willful violation
of the Code of Judicial Conduct, or willful or persistent conduct that is
clearly inconsistent with the proper performance of his duties or casts public
discredit upon the judiciary or administration of justice.

Certainly the Resolution's references to Judge Keller's alleged "gross neglect
of duty" and conducting her official duties "with willful disregard for human
life" are consistent with the standards in Section 1-a(6).

As stated in the Preamble to the Texas Code of Judicial Conduct (hereinafter
"the Code"), the Code is intended to "state basic standards which should
govern the conduct of all judges and to provide guidance to assist judges in
establishing and maintaining high standards of judicial and personal conduct."
One of the most fundamental and important precepts in the Code is Canon 2A,
which provides as follows:

A judge shall comply with the law and should act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary.

If, as the Commission's Notice has alleged, and as published reports indicate,
Judge Keller willfully and persistently failed to follow the Court's
Execution-day Procedures, she has violated this core principle of judicial
conduct. The national and international condemnation heaped upon the Texas
criminal justice system as a result of Judge Keller's actions indicates that
she has not acted in a manner "that promotes public confidence in the
integrity and impartiality of the judiciary." That conduct also fits well
within the language of the Resolution, "gross neglect of duty and conducting
her official duties with willful disregard for human life in connection with
her actions on the evening of September 25, 2007." If Judge Keller effectively
foreclosed access to court, she also apparently violated Canon 2A, and engaged
in "gross neglect of duty," in violating Section 13 of Article 1 of the Texas
Constitution, which provides that "[a]ll courts shall be open, and every
person . . . shall have remedy by due course of law." Furthermore, the same
conduct would have violated Canon 3B(8) of the Code, which provides that "[a]
judge shall accord to every person who has a legal interest in a proceeding,
or that person's lawyer, the right to be heard according to law."

For these reasons, I respectfully request that this Committee vote in favor of
H.R. No. 480. I appreciate your patience in considering my views.
- - - - -
Note: Chuck Herring is a member of the TCRP Board of Directors.

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