The key finding in State District Judge David Berchelmann's report on Texas Court of Criminal Appeals Judge Sharon Keller is that she “did not violate any written or unwritten rules or laws.” And in a very narrow technical sense, this finding is correct.
Keller, the presiding judge on the state's highest criminal appeals court, faces five charges of judicial misconduct for her actions involving the last-minute appeal for death row inmate Michael Wayne Richard. On Sept. 25, 2007, the date scheduled for Richard's execution, the U.S. Supreme Court announced it would hear a case to determine the constitutionality of lethal injection.
Richard's attorneys contacted Keller indicating they planned to rush an appeal based on the high court's action. Yet despite that information and the news from Washington, Keller twice said she would not keep the court clerk's office open past 5 p.m. to accept the appeal.
At the time, the Texas Court of Criminal Appeals did not have written procedures to handle appeals on execution days. And it was on this slender reed that Berchelmann bases his advice to the Commission on Judicial Conduct that Keller should not lose her job.
But the Texas court did have, as Berchelmann acknowledges, an oral tradition that all communications from lawyers on execution day were to be made to an assigned judge. On that day, the assigned judge was Cheryl Johnson. At the very least, Keller had a responsibility to inform Johnson about the expected appeal or refer Richard's attorneys to Johnson. She did not.
According to Berchelmann, Keller exhibited poor judgment and wasn't a “model of open communication.” But, he wrote, her inaction did not “rise to the level of willful or purposeful incompetence.” We disagree.
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.