Grievance Filed Against Sharon Keller with State Bar of Texas

From the San Antonio Express-News:

A civil rights group is asking the state to revoke the law license of a judge who has been a lightning rod in debates over the death penalty.
The Austin-based Texas Civil Rights Project filed a grievance Wednesday with the State Bar of Texas against Justice Sharon Keller, the presiding judge of the Court of Criminal Appeals, saying she is unfit to retain her license to practice law. Records show Keller has been licensed since graduating from SMU's law school in 1978.
The group alleges she is untrustworthy and dishonest, citing:
A review by the Texas Ethics Commission that found she failed to disclose several sources of income, as required by law.
Her refusal in 2007 to keep the court open after 5 p.m. at the request of lawyers drafting an appeal on behalf of death row inmate Michael Richard, who was executed that evening.
Statements she made in a federal lawsuit filed by Richard's widow that purportedly contradict what she told the State Commission on Judicial Conduct.
Keller, who recently said she'd seek reelection in 2012, had no comment. Her lawyer, Chip Babcock, could not be reached for comment Wednesday.
The state Commission on Judicial Conduct, which publicly warned her after investigating her actions on the day Richards was executed, also had no comment.
In April, the Texas Ethics Commission fined Keller a record $100,000 for failing to report stock, honoraria and more than $2.4 million in real estate holdings on her 2007 and 2008 personal financial disclosure statements. Keller filed amended reports with the commission in 2009 after news reports revealed her missing holdings.
In a statement filed with the amended reports, Keller said her father made investments for her and her son without her knowledge.
In 2009, the judicial conduct commission filed misconduct charges against Keller and issued her a “public warning.” The disciplinary body said she brought discredit to the judiciary by closing the court to Richard's appeals in 2007 just hours before he was executed.
In October, a special panel of three Republican judges said the commission issued her the wrong discipline, but the panel did not set aside the commission's misconduct findings.
Richard's widow, Marsha Richard, sued Keller in federal court in Austin in 2007. Keller argued that she acted in her judicial capacity in refusing to keep the courthouse open for Michael Richard's appeal, which made her immune to a lawsuit. U.S. District Judge Lee Yeakel dismissed the case in 2008.
But in front of the judicial conduct commission, Keller claimed she had acted in an administrative capacity, not in a judicial role.
“As the documents included in the grievance demonstrate, Judge Keller's statements before the federal court and her statements to the (conduct) commission were in complete contradiction of each other,” said Jim Harrington, executive director of the Texas Civil Rights Project. “The important thing is she was under oath for both.”
Marsha Richard's lawyer, Randall Kallinen, said Keller wrongly used the two hats to her advantage, and her credibility suffered.
“Judges should not be allowed to argue two opposite positions in two different tribunals to their advantage because it erodes the people's confidence in the judiciary,” Kallinen said. “It contradicts the public's perception of fairness towards all parties regardless of the party's high status.”\\\

Sharon Keller's Court of Criminal Appeals Says Hearing on Death Penalty Constitutionality Must End

From the Austin American-Statesman:

A Houston defendant cannot challenge the state’s death penalty laws as unconstitutional before his capital murder trial begins, the state’s highest court ruled today.

John Edward Green Jr., charged with robbing and killing a Houston woman in 2008, had challenged the Texas death penalty law because “its application has created a substantial risk that innocent people have been, and will be, convicted and executed.”

District Judge Kevin Fine held a Dec. 6 hearing on Green’s motion, hearing from defense experts who testified about 138 exonerations of U.S. death row inmates since 1978, including 12 in Texas.

At the urging of prosecutors, the Texas Court of Criminal Appeals halted the hearing the following day and requested briefings to determine if proceedings should continue.
Today, the court ruled 6-2 that Fine exceeded his authority and ordered him to dismiss Green’s challenge. Texas law does not allow judges to hold pretrial hearings on the constitutionality of a law, said the opinion by Judge Cathy Cochran.

In addition, until the death penalty statute is applied against Green, he does not have legal standing to challenge the law, the court ruled.

“One does not put the cart before the horse: a defendant has no claim of wrongful conviction or wrongful sentencing before he has even gone to trial,” Cochran wrote.

“It bears noting that no provision of the current (death penalty statute) has been held unconstitutional by the Supreme Court or this Court, although that statute has been attacked many times,” Cochran added.

Judges Tom Price and Paul Womack dissented without submitting an opinion stating their reasons. Recently retired Judge Charlie Holcomb did not participate.

Fine made national news last spring when, in response to a motion from Green’s lawyers, he declared the Texas death penalty law unconstitutional. He later rescinded that ruling and ordered the December hearing, saying he should have heard evidence before reaching such a conclusion.

Disgraced Sharon Keller to Run for Re-election; Gloats that She "Won" Despite Fact That Case Thrown Out on Technicality

Sharon Keller says she plans to run for re-election in 2012.

From the Dallas Morning News Editorial Board:  "the technical victory doesn't erase the commission's written conclusion that Keller had cast "public discredit on the judiciary."

From Texas Lawyer:

Breaking her silence after three years, Texas Court of Criminal Appeals Presiding Judge Sharon Keller says she feels "vindicated" by a special court of review's decision to vacate the State Commission on Judicial Conduct's public warning and charges against her.

Although some reporters have written that the three-justice court of review's Oct. 11 decision in In Re: Honorable Sharon Keller was only a technical victory for Keller, she doesn't see it that way.

"I won," Keller says. "People can call it what they want."

Keller, a member of the CCA since 1995 and its presiding judge since 2000, also says she will seek re-election in 2012. "I have always planned on doing that," she says.

Her judicial conduct case played out against the backdrop of debate over the death penalty. Dubbed "Sharon Killer" by some anti-death penalty activists, Keller has experienced not only the commission's investigation and prosecution of its charges against her but also critical media coverage and protests at her home.

"It's been a three-year-long ordeal," Keller says.

Text of Opinion Issued by Special Review Panel in Sharon Keller "We close at 5" Case

Final Opinion in Sharon Keller "We close at 5" Case Issued by Special Review Panel October 11, 2010

Final Judgment in Sharon Keller Case Issued by Special Review Panel

October 11, 2010 statement by Scott Cobb, president of Texas Moratorium Network, which filed one of the judicial complaints against Sharon Keller in 2007:
"It is not surprising that an all-Republican review panel would let Sharon Keller off on a technicality instead of holding her responsible for her judicial misconduct. Sharon Keller may have got off on a technicality, but a majority of the State Commission on Judicial Conduct found that she did not accord a person about to be executed with access to open courts or the right to be heard according to law. Sharon Keller's actions were not in accordance with the accepted principles of right and wrong that govern the conduct of her profession as a judge. It is now up to the Texas Legislature to restore the harm done by Sharon Keller to the integrity of the Texas Court of Criminal Appeals by impeaching Keller for judicial misconduct. The voters of Texas will likely throw her out of office if she decides to run for re-election in 2012, but it would be better for the quality of justice in Texas if the Legislature impeaches and removes her from office".

Charging Documents Filed with Review Panel in Sharon Keller's Appeal

The Austin American Statesman reports on the latest news in the ongoing saga of Judge Sharon Keller, who is appealing her sanction of a "Public Warning" for judicial misconduct for her actions on the day of the execution of Michael Richard, when she said "we close at 5".  You can read the latest charging documents here, filed by the State Commission on Judicial Conduct with the three-judge review panel appointed by the Texas Supreme Court to hear Keller's appeal. All three judges on the review panel are Republicans, as is Keller.

From the Statesman:

The special counsel for the State Commission on Judicial Conduct this morning filed charges accusing Judge Sharon Keller of violating her duty as a judge during a botched 2007 death penalty appeal.

It’s the next step in Keller’s appeal challenging the commission’s public warning, issued in July. The warning said Keller acted improperly by choosing to close the Court of Criminal Appeals clerk’s office at 5 p.m. despite knowing that defense lawyers wanted to file an appeal in a pending execution.

The charges lay out, point by point, the commission’s version of what happened on Sept. 25, 2007, when lawyers for murderer Michael Richard requested extra time to file an appeal. The points were compiled from sworn testimony by Keller and others.

The charging document was filed with a three-judge special court of review, which now has 30 days — with a 30-day extension available — to schedule a hearing on the charges.

After the hearing, the review court has 60 days to render a decision about whether Keller was properly reprimanded by the commission, an independent agency that investigates allegations of wrongdoing by Texas judges.

Charging Document Against Judge Sharon Keller

Three Judge All-Republican Review Panel Appointed to Hear Appeal of Public Warning Given To Sharon Keller

Mary Alice Robbins of Texas Lawyer is reporting that Sharon Keller will have her appeal heard by a three judge panel. We looked up the party affiliation of the three judges and no surprise, all three judges are Republicans. Also no surprise, but Keller's lawyer says “They’re all fine judges.”

From Texas Lawyer:

Texas Supreme Court Chief Justice Wallace Jefferson has appointed three court of appeals justices to hear Court of Criminal Appeals Presiding Judge Sharon Keller’s appeal of the public warning issued to her by the State Commission on Judicial Conduct. Fort Worth’s 2nd Court of Appeals Chief Justice Terrie Livingston will preside over the special court of review, which also will include 1st Court of Appeals Justice Elsa Alcala of Houston and 9th Court of Appeals Justice Charles Kreger of Beaumont, according to Jefferson’s Aug. 18 letter to those three justices. Jefferson notes in the letter that, pursuant to Texas Government Code §33.034, he selected the justices’ names by lot and assigned them to hear Inquiry Concerning Judge No. 96. Charles “Chip” Babcock, Keller’s attorney, a Jackson Walker partner in Dallas and Houston, says of the appointees, “They’re all fine judges.” Babcock says the timing of the special court’s hearing in the Keller case depends on whether the panel will conduct the review de novo or in an appellate proceeding. “I assume at some point somebody will tell us which,” he says.

No ruling yet on Keller appeal

Austin American-Statesman's Chuck Lindell is reporting that The Texas Supreme Court, which announces its decisions every Friday, did not rule this morning on Judge Sharon Keller’s request to have her ethics rebuke thrown out.

The Supreme Court also did not rule on Keller’s request for an emergency stay extending Monday’s deadline to file a more traditional appeal challenging the July 16 “public warning” from the State Commission on Judicial Conduct. (That appeal is really a request asking Supreme Court Chief Justice Wallace Jefferson to appoint a three-judge panel that would determine if Keller’s rebuke was justified.)

In the matter pending before the Supreme Court, Keller claims she was improperly reprimanded by the 13-member commission, which said Keller failed to properly perform her duties in 2007 when she closed the Court of Criminal Appeals clerk’s office at 5 p.m. despite knowing that defense lawyers wanted to file an appeal in a pending execution.

Keller is asking the Supreme Court to throw out the rebuke and dismiss all charges against her because, she argues, the Texas Constitution forbids the commission from issuing such a warning.

The Supreme Court is currently on hiatus but begins its new term next week. The nine justices can still rule on Keller’s petitions later today or Monday by issuing special orders.

Keller’s petition is here.
The commission’s response is here.
And, just filed yesterday, is Keller’s replyf to the commission’s response.

The Public Has Been Offically Warned about Sharon Keller; Read Text of the Decision Available on the Blog

The State Commission on Judicial Conduct has officially found that Texas Court of Criminal Appeals Presiding Judge Sharon Keller has cast "public discredit on the judiciary or the administration of justice" and "did not accord Richard with access to open courts or the right to be heard according to law". They also found that Keller's conduct constitutes "willful or persistent conduct inconsistent with the proper performance of her duties as a judge".

In 2007, Texas Moratorium Network filed a judicial complaint against Keller after she said "we close at 5" on the day of the scheduled execution of Michael Richard. Today the State Commission on Judicial Conduct issued its decision and reprimanded Sharon Keller with a "Public Warning".

The people of Texas have been publically warned today that we have an ethically compromised judge on the Texas Court of Criminal Appeals who did not accord a person about to be executed with access to open courts or the right to be heard according to law, yet she has been allowed to keep her job. Sharon Keller's actions were not in accordance with the accepted principles of right and wrong that govern the conduct of her profession as a judge. This is the worst case scenario for Texas, because now we know that the problems in the Texas death penalty system reach to Texas' highest ranking criminal appeals court, and yet the judge who closed the doors to justice remains on the Texas Court of Criminal Appeals.

A public warning is useful, but it is not enough. Sharon Keller should be removed from office. The public warning tells us that if you seek justice in Texas, proceed with caution because Sharon Keller is the presiding judge of the Texas Court of Criminal Appeals.

The Texas Legislature can help restore integrity to the Texas Court of Criminal Appeals by impeaching and removing Keller from office. We now have the findings of fact from the State Commission on Judicial Conduct, so it is confirmed that Keller has brought discredit to the Texas judiciary by her misconduct hendering access to justice. It is up to the people of Texas now to take the findings of fact and act on them by seeking to remove Keller from office through their elected representatives using the impeachment process or at the ballot box in 2012 when she is up for re-election. Since Keller is not up for re-election for another two years, it is in the best interest of justice that the Legislature removes her from office.

Click here to read the full decision of the SCJC.

State Commission on Judicial Conduct Findings, Conclusions and Order of Public Warning in Case of Judge Sha...

Click here to read the full decision of the SCJC.

State Commission on Judicial Conduct Findings, Conclusions and Order of Public Warning in Case of Judge Sha...


In 2007, Texas Moratorium Network filed a judicial complaint against Judge Sharon Keller after she said "we close at 5" on the day of the scheduled execution of Michael Richard. Today the State Commission on Judicial Conduct issued its decision and gave Sharon Keller a "Public Warning".

In a post on the Texas Moratorium Network blog on October 3, 2007, we said "Texas Court of Criminal Appeals Presiding Judge Sharon Keller should resign or be impeached and removed from office for her conduct regarding the execution of Michael Richard. As long as Keller is in office, the people of Texas can not be sure that justice is being done with integrity".

Texas Moratorium Network filed a complaint against Keller (pdf) with the State Commission on Judicial Conduct that was signed by about 1900 people. We delivered a copy of the complaint to the Texas Court of Criminal Appeals (video). We held a protest in front of her house (video). We revised our complaint to the Commission by sending them a copy of the Execution Day Procedures, which we obtained from Keller through a Public Information Request. She had first sent that document to R.G. Ratcliffe of the Houston Chronicle, but we requested she send us a copy so we could send it to the Commission. We went to the Legislature to ask legislators to sign on to a complaint or to file their own. State Rep Dutton, Olivo, Farrar and Coleman all signed one of the complaints or filed their own. We went back to the Legislature in December 2008 to ask Lon Burmam to file an impeachment resolution.

Sharon Keller Compares State Commission on Judicial Conduct to Soviet Bloc Authorities

 "This course of events would not seem out of place in the old Soviet bloc, where show trials were not really trials, but were degredation ceremonies staged to depose officials who deviated from party doctrine," reads Sharon Keller's latest brief. "Things should be different in this country." (Page 16,PDF)


Part one of Keller's latest filing. Part two of Keller's latest filing.


Sharon Keller could be suspended from office if the Travis County Attorney files misdemeanor charges against Keller for her violation of state law in failing to report millions of dollars in property and income to the Texas Ethics Commission, which already assessed her a $100,000 civil fine. 


The TEC found that there is "credible evidence of violations of section 572.023 of the Government Code", so it is appropriate that criminal charges are filed in addition to the civil penalty assessed by the TEC.

The criminal offense for a violation of section 572.023 of the Government Code is a Class B misdemeanor.

Click here to ask the Travis County Attorney to file charges against Keller since the TEC has said that there is credibile evidence that she violated the law.


The Austin Chronicle has more on Sharon Keller's bombastic rants against the State Commission on Judicial Conduct:

But the bombast doesn't stop there – hells no! Keller goes on to charge that the real motivation behind her persecution is a fundamental disagreement that TDS has with Keller's views on the death penalty. The objections of the SCJC's lawyers "amount to nothing more than an attempt to re-write history simply because" the lawyers don't "like 'Judge Keller's attitude'" and disagree with "Judge Keller's 'viewpoint' about the death penalty," Keller's brief reads. "Judge Keller is not – or at least should not be – on trial because of her beliefs, but because the [lawyers] charged her with denying Mr. Richard access to the CCA on the evening of his execution." Indeed, though for many CCA watchers it might be difficult to separate Keller's feelings about the death penalty from the way she presents in court – need we bring up Keller's amazing performance in the Roy Criner case, on stage for all to see in the infamous Frontline interview? And that's just one example. (There are plenty of other examples out there – just a few can be found here.)

Considering that impartial attitude is one of the canons of judicial ethics, it's not surprising that Keller's opinions about capital punishment have made many attorneys scratch their chins in wonder at some of the opinions Keller has expressed over the years, while sitting on the state's highest criminal bench. (Full list of canons is here.)

Regardless, it seems quite unlikely that the SCJC will derail the Keller hearing process that is already in motion. Indeed, Keller is slated to have her day in court before the Commission nextFriday, June 18, beginning at 9a in the John H. Reagan State Office Building.

Texas Lawyer's Mary Alice Robbins reports:

The judicial conduct commission's executive director and examiner, Seana Willing, and the commission's special counsel John J. "Mike" McKetta, a shareholder in Austin's Graves Dougherty Hearon & Moody, argue in their objections that Berchelmann's findings are irrelevant and erroneous. They contend that Berchelmann improperly turned the hearing on Keller's conduct into something resembling a tort case or other similar proceeding in which comparative responsibility or fault is an issue.

The judicial conduct commission will consider both sides' objections in In Re Sharon Keller at a June 18 hearing in Austin.

In her response, Keller argues that the special master correctly found that she did not break any rule, law or canon of conduct. Keller also argues that "this proceeding continues to taint her name and drain her resources," despite the fact that the special master found she violated no laws or rules. She urges the commission to adopt the special master's findings of fact.

Keller argues in her response that the commission's examiner "plays fast and loose with the record" by arguing in her objections that one of Keller's duties was the performance of the CCA's mandatory execution-day protocol. On Sept. 25, 2007, the CCA had an "oral tradition" that communications from outside the court on execution days were expected to be directed to the judge assigned to the case, but there were no court rules governing execution procedures, Keller contends in the response. [See Keller's response: Part 1 and Part 2.]

In the examiner's objection, Willing and McKetta argue that Keller knew and had known for years the details of the execution-day procedures.

The state executed Richard on Sept. 25, 2007. Richard died by lethal injection after Texas Defender Service (TDS), which represented Richard, did not file a motion for stay and an application for writ of prohibition on his behalf in the CCA. On the morning of Richard's execution day, the U.S. Supreme Court had agreed to consider whether the combination of chemicals used in lethal injections constitute cruel and unusual punishment — an issue that Richard's attorneys were trying to address. However, Richard's attorneys did not file Richard's pleadings in the CCA prior to 5 p.m.

Austin Chronicle: Prosecuting Judge Sharon Keller

"Prosecuting Judge Sharon Keller" is the title Jordan Smith's article for the Austin Chronicle.

Court of Criminal Appeals Judge Sharon Keller says the fact that she is still having to defend herself against the false allegation that she closed the court to a death row inmate on the day of his execution is an example of the "fundamental injustices" in the case against her, her lawyer wrote in a brief filed with the State Commission on Judicial Conduct.

Keller, presiding judge of the state's highest criminal court, was tried on ethics charges last summer in connection with the execution of Michael Richard in September 2007 – including that she failed to do her job and that she'd brought discredit to the judiciary by blocking the Texas Defender Service's ability to file a final appeal for Richard on Sept. 25, 2007. The lawyers were having computer problems that afternoon and wanted permission to file the appeal late, a TDS employee told the court's then-general counsel, Ed Marty. When Marty called Keller to ask if the court would remain open to accept the late filing, Keller infamously replied that the court closes at 5pm. Keller has said that she meant the clerk's office closes at 5pm and that didn't bar Richard's lawyers from filing the appeal with one of the court's nine judges. Asked at her trial whether she would do anything different if confronted with the same situation again, Keller said no. Judge David Berchelmann, who was appointed special master to hear the case against Keller last summer, concluded that position was ridiculous; nonetheless, he cleared Keller of any fault in the situation and concluded that she needed no more punishment, "beyond the public humiliation" she had already suffered.
The attorneys prosecuting the case disagreed with Berchelmann's findings earlier this year, and the SCJC has since said that it would hear arguments from both sides during a hearing on June 18, before determining whether Keller should face any discipline.
In advance of that hearing, Keller's attorney last week filed a rebuttal to the prosecutors' objections to Berchelmann's findings, opining that the charges against Keller were mere "fiction" created by the TDS lawyers in order to deflect attention from the missteps they made on the day Richard was executed. Berchelmann has already concluded that Keller did not "break any rule, law, or canon of conduct" and, as such, continuing the proceedings "would needlessly violate Judge Keller's rights," reads the brief.
According to Keller, the accusation that she closed the courthouse doors were essentially fabricated by TDS lawyer David Dow and colleagues and carried forward by lawyers representing the SCJC at the hearing before Berchelmann last year. "This course of events would not seem out of place in the old Soviet bloc, where show trials were not really trials, but were degredation ceremonies staged to depose officials who deviated from party doctrine," reads Keller's latest brief. "Things should be different in this country."
(Keller's brief was posted online yesterday by Mary Alice Robbins of Texas Lawyer along with a really good summary article about the case. You can find that here.)
But the bombast doesn't stop there – hells no! Keller goes on to charge that the real motivation behind her persecution is a fundamental disagreement that TDS has with Keller's views on the death penalty. The objections of the SCJC's lawyers "amount to nothing more than an attempt to re-write history simply because" the lawyers don't "like 'Judge Keller's attitude'" and disagree with "Judge Keller's 'viewpoint' about the death penalty," Keller's brief reads. "Judge Keller is not – or at least should not be – on trial because of her beliefs, but because the [lawyers] charged her with denying Mr. Richard access to the CCA on the evening of his execution." Indeed, though for many CCA watchers it might be difficult to separate Keller's feelings about the death penalty from the way she presents in court – need we bring up Keller's amazing performance in the Roy Criner case, on stage for all to see in the infamous Frontline interview? And that's just one example. (There are plenty of other examples out there – just a few can be found here.)
Considering that impartial attitude is one of the canons of judicial ethics, it's not surprising that Keller's opinions about capital punishment have made many attorneys scratch their chins in wonder at some of the opinions Keller has expressed over the years, while sitting on the state's highest criminal bench. (Full list of canons is here.)
Regardless, it seems quite unlikely that the SCJC will derail the Keller hearing process that is already in motion. Indeed, Keller is slated to have her day in court before the Commission next Friday, June 18, beginning at 9a in the John H. Reagan State Office Building.

Sharon Keller Could Be Suspended from Office if Travis County Attorney David Escamilla Files Criminal Charges

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, may soon be suspended from office according to the Procedural Rules for Removal or Retirement of Judges, if Travis County Attorney David Escamilla files misdemeanor charges in connection with Keller's failure to report millions of dollars in income and property to the Texas Ethics Commission.

Keller could be suspended by the State Commission on Judicial Conduct upon the filing of misdemeanor charges if the charges relate to her "official duties". The annual personal financial disclosure and reporting requirements are part of most elected officials’ duties, which means a violation may very well be considered “official misconduct,” though some may argue it is not.

If she is suspended, the hearing and formal proceedings against Keller by the State Commission on Judicial Conduct in the separate matter of her actions on the day of the execution of Michael Richard would continue on schedule but she would be suspended from performing her duties as a judge.

Scott Henson of Grits for Breakfast reported that he talked to David Escamilla, Travis County Attorney. Escamilla's office is responsible for filing charges in misdemeanor cases in Travis County. Henson wrote:

I called Escamilla to ask about the status of the criminal complaint, which has now been sitting at his office for more than a year. Escamilla had not yet read the TEC opinion himself, declaring that he'd asked two of his prosecutors to review it and report back to him tomorrow with a recommendation how to proceed.

Escamilla and I spoke both on and off the record. On the record, he said he hadn't moved forward before now because he'd been been waiting for the Ethics Commission to complete its investigation. He said he would give "great weight" to the Ethics Commissions findings of fact and conclusions of law, which would have a "great influence" on whether his office elected to proceed with prosecution. Escamilla was particularly impressed that the TEC identified 13 different alleged Class B misdemeanor violations and said the remarkable volume of violations might also be a factor in whether to go forward.

Click here to sign a petition urging the State Commission on Judicial Conduct to recommend Sharon Keller be removed from office.

Sharon Keller Should Be Suspended from Office Pending the Outcome of the Formal Proceedings Against Her

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, should be suspended from office pending the outcome of the State Commission on Judicial Conduct proceedings against her. She faces a public hearing on June 18, but she should be suspended before the hearing. If she is suspended, the hearing and formal proceedings would continue on schedule but she would be suspended from performing her duties as judge.

Click here to sign a petition urging the State Commission on Judicial Conduct to recommend Sharon Keller be removed from office.

She has already been fined $100,000 dollars by the Texas Ethics Commission for 13 violations equivalent to misdemeanors. She may have committed more violations but the statute of limitations has run on some of her past behavior. She may soon face criminal charges, according to a post on Grits for Breakfast.

Rule 15(b) of the Procedural Rules for Removal or Retirement of Judges on the website of the State Commission on Judicial Conduct allows the Commission to request that the Supreme Court of Texas suspend a judge if  a sworn complaint is filed.

Keller could also be suspended under Rule 15(a) if Travis County Attorney David Escamilla files criminal charges against her.

Here is the relevant text of the Commission rules:

RULE 15. SUSPENSION OF A JUDGE
(a) Any judge may be suspended from office with or without pay by the Commission immediately upon being indicted by a state or federal grand jury for a felony offense or charged with a misdemeanor involving official misconduct. However, the suspended judge
has the right to a post-suspension hearing to demonstrate that continued service would not
jeopardize the interests of parties involved in court proceedings over which the judge would
preside nor impair public confidence in the judiciary. A written request for a post-suspension
hearing must be filed with the Commission within 30 days from receipt of the Order of
Suspension. Within 30 days from the receipt of a request, a hearing will be scheduled before
one or more members or the executive director of the Commission as designated by the
Chairman of the Commission. The person or persons designated will report findings and
make recommendations, and within 60 days from the close of the hearing, the Commission
shall notify the judge whether the suspension will be continued, terminated, or modified.

(b) Upon the filing with the Commission of a sworn complaint charging a person holding
such office with willful or persistent violation of rules promulgated by the Supreme Court of
Texas, incompetence in performing the duties of office, willful violation of the Code of
Judicial Conduct, or willful and persistent conduct that is clearly inconsistent with the proper
performance of his duties or casts public discredit upon the judiciary or the administration of
justice, the Commission, after giving the person notice and an opportunity to appear and be
heard before the Commission (under Rule 6), may recommend to the Supreme Court the
suspension of such person from office. 

It is time for the Commission to recommend that the Texas Supreme Court suspends Sharon Keller until the formal proceedings are complete and the Commission votes to either dismiss the case, issue a public censure, or recommend to the Supreme Court that Keller be permanently removed from office.

Now that she has been fined $100,000, we should expect to see a round of newspaper editorials coming soon saying she should be removed from the bench.

The Commission charged Keller in the Amended Notice of Formal Proceedings with 1) "willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge", 2) "willful or persistent conduct that casts public discredit on the judiciary or the administration of justice", 3) "incompetence in the performance of duties of office".

Those are the exact reasons given in Rule 15b for suspending a judge. The Commission should immediately begin the process to recommend that the Texas Supreme Court suspends Keller. The proceedings against her including the June 18 public hearing will continue, but in the meantime she should not exercise the powers of her office as a judge on the Court of Criminal Appeals.

The other option that could have achieved Keller's suspension was for the Texas House to vote to impeach her, as Rep Lon Burnam tried to do when he filed a resolution to start that process. If she had been impeached by the House, she would have been automatically suspended pending the outcome of her Senate trial.

Post written by Scott Cobb

Sharon Keller Fined $100,000 for Failing to Report Income and Property

Time to start the final countdown for Sharon Keller's time on the bench. Will she resign or be removed by the State Commission on Judicial Conduct, which will have a hearing on her case on June 18 in response to the complaints filed against her that she has brought discredit to the Texas judiciary by closing the doors of justice to a late appeal by a man set for execution, including one filed by Texas Moratorium Network that was signed by about 1900 people.

Today, she was fined $100,000 in a complaint separate from the ones filed with the State Commission on Judicial Conduct. The fine today comes from the Texas Ethics Commission and has to do with her failure to report income and property holdings.





From the Austin American-Statesman:

Sharon Keller, presiding judge of the state’s highest criminal court, has been fined $100,000 by the Texas Ethics Commission for failing to fully report her income and property holdings on annual personal financial statements.

It was the largest civil penalty imposed by the commission, according to Tim Sorrells, deputy general counsel for the agency.

The statements for 2006 and 2007 failed to list eight properties, valued at around $2.8 million; between 100 and 499 shares of stock; income from rents, interest and dividends totaling $183,000 over the two years; 20 certificates of deposit; and one money market fund, according to a commission order.

Keller also failed to list her participation on five board or executive positions and almost $10,000 in honorariums, the commission said.

Keller’s failure to fully list her properties, largely in the Dallas area, were revealed in articles by the Dallas Morning News and prompted the left-of-center watchdog group Texans for Public Justice to file a complaint with the ethics commission in March 2009.

A month later, Keller filed corrected versions of her financial statements, saying she inadvertently omitted certain holdings.

The commission gave Keller, top judge on the Texas Court of Criminal Appeals, until Aug. 10 to pay the $100,000 penalty.

Public Hearing Scheduled in Sharon Keller Case for June 18 in Austin

A public hearing before the State Commission on Judicial Conduct on the matter of Sharon Keller is set for June 18, 2010 at 9 AM Room 140 of the John H. Reagan State Office Building in Austin, Texas at 105 W. 15th Street. June 18 is a Friday. 

Here is the notice of the hearing before the Commission:

http://www.scjc.state.tx.us/pdf/skeller/NoticeOfObjectionsHearing.pdf

Texas Moratorium Network filed a judicial complaint against Keller in 2007 and that was co-signed by about 1900 people.  



On Sept. 25, 2007, Michael Richard’s lawyers called the court clerk’s office to say they were running late in delivering the papers for his appeal. The Supreme Court had unexpectedly issued an order in another death penalty case that they believed provided grounds for putting off his execution. When the request to keep the office open reached Judge Keller, she insisted it would close promptly at 5 p.m. The appeal was not filed with her court, and Mr. Richard was executed hours later.

Judge Keller is now facing five counts of judicial misconduct and a possible recommendation that the state judicial system remove her from the bench.

Prosecution Files Objections to Findings of Special Master in Sharon Keller Case: Says Keller Deserves Punishment

The Austin American-Statesman is reporting that the prosecution, representing the State Commission on Judicial Conduct, has filed a document objecting to the findings issued by the Special Master Judge David Berchelmann.

Texas Moratorium Network filed a complain against Sharon Keller in 2007 that was signed by about 1900 people. For more information on the case visit www.SharonKiller.com.

From the Statesman:

Seeking to revive their case against Judge Sharon Keller, prosecutors argued Wednesday that Keller deserves to be reprimanded or removed from office for refusing to accept a late execution-day appeal in 2007.

In documents filed Wednesday with the State Commission on Judicial Conduct, which will weigh Keller’s fate, prosecutors objected to a special master’s conclusion that Keller was not to blame for failures that resulted in death row inmate Michael Richard being executed without his final appeal being heard in court.

Dismissing the findings by Special Master David Berchelmann Jr. as irrelevant and misguided, prosecutors said Keller’s conduct in Richard’s case “was clearly inconsistent with the proper performance of her duties … and cast public discredit on the judiciary.”

Keller’s lawyer, Chip Babcock, also filed objections to Berchelmann’s findings, issued last month after he heard four days of testimony in August.

Though emphatically in Keller’s favor, Berchelmann’s findings also criticized Keller for questionable judgment when she refused to keep the court clerk’s office open past 5 p.m. Richard’s lawyers had requested extra time to file an appeal based on a U.S. Supreme Court decision that morning.

Babcock urged the commission to disregard Berchelmann’s criticism as irrelevant, noting that Keller was charged with violating the code of judicial ethics and the Texas Constitution — not with exhibiting poor judgment or making questionable decisions.

“The special master explicitly found, based on a thorough and careful review of the evidence, that Judge Keller ‘did not violate any written or unwritten rules or laws,’” Babcock wrote. “The special master’s findings of fact plainly absolve Judge Keller of all of the charges leveled against her … (and) can only be read as an exoneration of her conduct.”

Babcock said he plans to file a formal response to prosecutors’ objections in the near future, and both sides will get a chance to argue their objections before the commission during an as-yet unscheduled meeting.

After that meeting, the 13-member commission will meet in private to decide whether to drop the charges, reprimand Keller or recommend her removal from office. That decision could take weeks, perhaps months, and a removal recommendation would kick off a new inquiry by a specially created seven-member panel of appellate court judges.

In Wednesday’s filings, prosecutors attacked Berchelmann’s two main conclusions:

• That Keller violated no rule or law when she declined to accept the appeal after 5 p.m.
• That lawyers with the Texas Defender Service, or TDS, were to blame for the missed appeal by failing to diligently prepare Richard’s court briefs and declining to pursue available options to file them with the Court of Criminal Appeals after 5 p.m.

Prosecutors argued that Berchelmann improperly portioned out blame as if he were presiding over a negligence lawsuit instead of charges of judicial misconduct.

“The issue here is not TDS’s conduct, but Judge Keller’s conduct,” prosecutors said. “Judge Keller’s conduct on Sept. 25, 2007 should be examined based on what she knew, heard, thought, said, did, decided and failed to do — and not on things that she did not know.”

Read more in print or on line tomorrow.

Dallas Morning News: "Judge Keller shouldn't get a pass"

Last week, the San Antonio Express-News called for Judge Sharon Keller's removal from office. Now, the Dallas Morning News has become the second newspaper to call for a harsher punishment than was recommended by the special master Judge David Berchelmann, Jr.

On this we agree with a special master's finding on Texas Court of Criminal Appeals Presiding Judge Sharon Keller: She could have and should have done more to make clear her court's willingness to receive last-minute pleas before a September 2007 execution.

On this we disagree with the special master: that public humiliation Keller has endured since the celebrated fiasco is punishment enough.

Yet that's what state District Judge David A. Berchelmann Jr. is recommending to the State Commission on Judicial Conduct – essentially to let bygones be bygones, despite a royal screw-up.

Instead, when it acts on the Berchelmann report, the commission should focus on the communication breakdowns within the court and the key finding that Keller's conduct "was not exemplary of a public servant."

That degree of failure in a death penalty case merits an official reprimand by the commission, and we hope that's the way the last chapter is written in this judicial comedy of errors.

Let's set the scene from that evening of Sept. 25, 2007, as documented in a trial before Berchelmann last year: The life of convicted murderer Michael Richard was at stake, and appellate attorneys were working on an appeal that probably would not be ready until after regular business hours.

Yet confusion reigned among frontline staffers in the state's highest criminal court over the significance of "closing time" and whether court personnel could or would accept that appeal after 5 p.m.

Representatives of the attorneys got the message "We close at 5," even though a duty judge could have handled the matter. The lawyer for the Court of Appeals reached Keller at home for a clarification, but her involvement may very well have added to the fog.

Said the special master's report: "Judge Keller certainly did not exhibit a model of open communication."

Texans deserve better out of the top criminal appeals judge, especially in light of the state's nation-leading record on capital punishment, including more than 200 executions since Keller became presiding judge in 2001. It's a grisly business and one that demands everyone be alert until the executioner's needle goes in the arm of the condemned.

Berchelmann didn't let the appellate attorneys off the hook, suggesting they should have been smart enough or experienced enough to find a last-minute workaround in light of their tardy filing. The report contends they bear "the bulk of fault," as if that calculation helps us grapple with the matter at hand – Keller's leadership on the court.

Since the Richard case, her court has written down – for the first time – procedures to be followed in the hours before an execution nears. That in itself appears to be an admission that the court fell short in the Richard affair.

The judicial commission could find that Keller's shortcomings are so egregious to justify her removal from office, but that's not the way the proceedings seem to be headed. In any case, voters will have the chance to decide the question in two years

Sign the petition to remove Judge Sharon Keller from office.


You can view the signatures by clicking here.

In addition to signing the petition, contact the State Commission on Judicial Conduct by phone or email and tell them not to let Sharon Keller off the hook. The Republican judge at her trial has recommended that she not be further punished, but the state commission can still punish her for saying "we close at 5" and refusing to accept a late appeal on the day of a person's execution.

Send an email to: seana.willing@scjc.state.tx.us.

In polite, professional language, tell Executive Director Ms Willing that Sharon Keller has brought discredit on the Texas judiciary and if they let Keller off the hook, the discredit will only get worse. Restore Integrity, Remove Keller, at least punish her with a formal reprimand.

http://www.scjc.state.tx.us/

Your communication to the State Commission will serve as support that Keller has discredited the Texas judiciary.

You can call, but they only answer the phone during business hours.

State Commission on Judicial Conduct • P. O. Box 12265 • Austin, TX 78711 Telephone: (512) 463-5533 • Toll Free: (877) 228-5750 • Fax: (512) 463-0511 • TDD: (800)-RELAY-TX

San Antonio Express-News: "Remove Sharon Keller from appeals court post"

San Antonio Express-News is the first paper to publish an opinion about case of Judge Sharon Keller after the special master and republican Judge David Berchelmann, Jr issued his findings.

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.

Special Master has issued his Findings of Fact in the case of Judge Sharon Keller

The Special Master has issued his Findings of Fact in the case of Judge Sharon Keller. The special master is Republican Judge David Berchelmann, Jr. Keller is also a Republican.

The document can be located on the website of the State Commission on Judicial Conduct at http://www.scjc.state.tx.us/caseinfo.asp

The Commission will announce the date, time and location of the public hearing before the Commission at a later date.

Texas Moratorium Network filed a complaint against Keller with the Texas Commission on Judicial Conduct in November 2007 that was signed by about 1900 people.

Attorneys File motion Asking Court of Criminal Appeals Judge Sharon Keller be recused from any participation in Stay Request of Danielle Simpson

From the Palestine Texas Herald Press:

Late Tuesday afternoon, Simpson's attorneys David R. Dow and Katherine C. Black filed a postconviction writ of habeas corpus; a motion for a stay of execution; and a motion asking Court of Criminal Appeals Judge Sharon Keller be recused from any participation in the case.

Dow and Black are attorneys for the Texas Defender Service and their motion on Simpson's behalf alleges the judge "has made disparaging statements about TDS" in the past, which they say compromises "her ability to rule impartially in a case involving a party represented by the TDS."

From the Houston Chronicle:

A condemned prisoner who volunteered for execution but in recent weeks changed his mind hoped a court would spare him from a trip to the Texas death chamber Wednesday evening.

Danielle Simpson, 30, was set to die for the abduction-slaying of an 84-year-old east Texas woman who was weighted down with a cinder block and thrown into a river.
Simpson this year won approval from a federal court that he was competent to decide to drop his appeals. Then he reversed himself and allowed lawyers to try to save him from lethal injection.

He'd be the 22nd Texas prisoner to die this year.

Simpson told The Associated Press earlier this month from death row he was innocent, it wasn't his choice to volunteer for execution and Texas prisons were "pitiful."

He was condemned for the murder of Geraldine Davidson, a former school teacher and church organist abducted nearly 10 years ago during a burglary of her home in Palestine, about 100 miles southeast of Dallas.

Attorneys representing him argued to the federal courts Simpson is mentally impaired, incapable of deciding whether to drop his appeals and offered his repeated reversals as proof.

They also wanted permission to appeal a lower court's determination that Simpson is not mentally impaired and challenged the elimination of two black people from consideration to serve on Simpson's trial jury. Simpson is black. There were no blacks on the jury that convicted him and decided he should be put to death.
Simpson earlier sent a federal court a handwritten motion in which he said he was "tired of being in a institution that's unjust, degrading, and corrupted" and was ready to die.

A federal judge found Simpson had "a mental disease, disorder or defect" but was able to understand his legal position and competent to choose to die.

Don't let Texas execute someone without the Governor receiving phone calls or emails protesting the execution. In the past, we have done public information requests and discovered that for some executions, very few people call to protest, so it is important to call every time. They keep a tally. Call the Governor and leave a voice message at 512 463 1782 or email him through his website at http://governor.state.tx.us/contact.

Members of various groups, including Texas Moratorium Network, Students Against the Death Penalty, Campaign to the End the Death Penalty, Kids Against the Death Penalty and the Texas Death Penalty Abolition Movement participate in vigils and protests on the day of each execution in Texas. The protests are held in various cities, including Huntsville and Austin. The protest in Austin is at 5:30 pm on the sidewalk in front of the Texas Capitol facing Congress Avenue at 11th Street.

After Todd Willingham and Sharon Keller Debacles, Where are the Candidates Challenging Members of the CCA?

Where are the Democratic candidates challenging the incumbents on the Texas Court of Criminal Appeals who are running for re-election in 2010? The CCA allowed an innocent person to be executed - Todd Willingham. It is the court that one of its own current members says became a national laughingstock years before Sharon Keller said "we close at 5". Keller, its presiding judge, is charged with incompetence and misconduct and could be removed from office.

The three incumbents on the CCA up for re-election in 2010 are: Lawrence Meyers, Michael Keasler and Cheryl Johnson.

Meyers made a laughable, dishonest claim that the CCA has a reputation for fairness in his re-election annoucement. “I am seeking re-election to the Court to continue to be an objective voice and ensure that we maintain our reputation for delivering fair and just opinions,” said Meyers in announcing his candidacy for re-election. Tell that to Todd Willingham, whose last appeal based on actual innocence was denied on the day he was executed, "We have reviewed the subsequent application for habeas relief and find that it does not meet the requirements for consideration under Texas Code of Criminal Procedure, Article 11.071, § 5 as a claim of newly discovered evidence of actual innocence."

The Dallas Morning News blog said "try not laugh" at Meyers' claim that the CCA has a reputation for fairness. Meyers deserves an opponent.

Michael Keasler is one of the most, far-right, conservative members of the CCA and also deserves an opponent. Grits for Breakfast has said, "There is no liberal wing on the Texas Court of Criminal Appeals. There's a conservative wing, to which Judge Johnson belongs, and a more or less totalitarian wing, in which Keasler and Meyers reside along with Presiding Judge Sharon Keller."

Cheryl Johnson does not deserve an opponent. Johnson was the duty judge on call the day Keller said "we close at 5" when lawyers for a man set for execution wanted to submit an appeal after 5 pm. Keller violated the Execution-Day Procedures of her own court when she failed to inform Johnson about any communications from Richard's lawyers. She testified for the prosecution in the trial against Sharon Keller, saying that she would have not said "we close at 5" like Keller did, but that she would have allowed lawyers for Michael Richard to submit their appeal instead of slamming the doors of justice closed. Johnson should probably be given a profile in courage award.

Currently there are no Democrats serving on the Court of Criminal Appeals, but we hope the Democrats find 2 strong candidates to run in 2010. It does not serve justice to have every member of any court to be all from the same political party. The Texas Court of Criminal Appeals has been all-Republican for more than a decade. It has become the "worst court in the state" (according to Texas Monthly), if not the entire U.S.

Democrats would have a chance to grab two seats on the CCA, if they find some quality candidates. Usually statewide judicial races are won by the same party that wins the governor's race, but this could be the year that the Democrats could win a seat on the CCA no matter what the outcome of the gubernatorial race is because of the extremely poor reputation of the CCA.