Thursday, July 23, 2009

Texas Monthly: "The Judgement of Sharon Keller"

Texas Monthly has a long article by Michael Hall in its August edition titled "The Judgement of Sharon Keller" about the presiding judge of the Texas Court of Criminal Appeals. Keller said "we close at 5" when asked by attorneys for Michael Richard in 2007 to allow them to file a late appeal for Michael Richard on the day of his scheduled execution. Keller's trial is scheduled to start August 17 in San Antonio on charges of misconduct and incompetence arising from complaints filed with the State Commission on Judicial Conduct by several groups, including Texas Moratorium Network which filed a complaint signed by about 1900 people. (For more background information visit

According to the Texas Monthly article:
The main charge was that Keller’s “failure to follow the CCA’s execution-day procedures” violated the Texas constitution (which states that a judge must not exhibit “willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary”) and the Code of Judicial Conduct (“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”).
“It’s going to be a donnybrook,” says Cathy Cochran in the TM article. Cochran is also a judge on Keller’s court. The article says that "Judge will testify against judge", implying that Cochran will likely testify against Keller.

The article says that when she ran for election in 1994, Keller
described herself as “pro-prosecutor,” explaining to a reporter, “I guess what pro-prosecutor means is seeing legal issues from the perspective of the state instead of the perspective of the defense.”
The article says that Keller believes in following rules and the law (although she violated the rules of her own court in her handling of the Michael Richard appeal).
In 2000 Keller ran for presiding judge. Her opponent, fellow judge Tom Price, asked, “How far to the right is this court going to be? Even Republicans want fair trials.” (Price would later say that the Criner case had made the court a “national laughingstock.”) Keller was asked in a preelection interview if she was bound to follow the law, even if it meant an unjust result. “Absolutely,” she replied. “Who is going to determine what justice is? Me? I think justice is achieved by following the law.” According to some who have worked with her, she was also answering to a higher power. “She’s extremely religious,” says a colleague. “She believes strongly that God is on her side.”
The article contains a long description of the events on the day that Keller said 'We close at 5". Click here to jump to the section of the article covering the timeline of events, many of which appear to be taken from the formal charges of the Commission on Judicial Conduct.

So what does Hall think will happen at the trial?
SOON THE JUDGE will have her own day in court, before special master Berchelmann. Her defense will rest on several things, first and most important her interpretation of the infamous phone call. She has said she thought Marty was asking specifically about the clerk’s office, which, like all state offices, closes at five and never stays open late. “It is clear that Judge Keller did not have a duty to do anything other than what she did,” her response to the CJC says, “which was to answer a question about whether the clerk’s office closes at 5:00 p.m.” In other words, Keller followed the rules—as she had always done. But Marty told the CJC that he said either “They want the court to stay open late” or “They want to hold the court open.” If Berchelmann determines that he said (and that Keller understood him to say) “court,” the special master might rule that Keller had a duty to do more than she did.
Hall thinks that Keller will blame the attorneys for Richard, especially for not contacting another judge on the CCA, but at least one other judge on the CCA does not seem to buy that excuse. Hall says he
asked Cochran if she had ever been phoned by a defense lawyer seeking to file a pleading. “Never,” she said. “I would consider it an ex parte communication. I don’t want to be put in that position. If the clerk’s office is closed, the general counsel is the normal person you go to.”
Keller is also likely to try to make General Counsel Ed Marty the fall guy.
Why did he even call Keller at home? Why not go straight to the duty judge?
In Hall's article Judge Cochran comes out looking like the CCA judge with the best ethical judgement. Hall
asked Cochran about the distinction Keller’s defense makes between “clerk’s office” and “court.” “The bottom line is, we accept anything and everything before an execution takes place,” she says. “We will do whatever it takes.” Did she have any doubt about whether she would have made it happen? “No. I can’t imagine the concept of not accepting a death penalty filing even though it’s after the clerk’s office closes. That’s what courts are for. The Supreme Court doesn’t close on death days. It would have been so easy to say, ‘Mr. Marty, tell ’em to fax it.’

“Sometimes you just do the right thing. The right thing is not to close the courthouse when someone is about to be executed.”
On the other hand Lawrence Meyers, another judge on the CCA and one who is up for re-election in 2010, defends Keller saying "Judge Keller had no more duty than anyone else." and
“I don’t know what I would have done,” says Meyers. “We’re not supposed to counsel these people on what to do. We’re under the presumption that they are highly specialized attorneys. From a technical standpoint I don’t think she did anything wrong. She didn’t do anything not prescribed by the code.”
To read the entire article by Hall, click here to go to Texas Monthly or pick up a copy of the August issue on newsstands.

h/t to TMN

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