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.”\\\

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.

March to Abolish the Death Penalty in the News

"Protesters voice concerns about death penalty," is Bobby Longoria's article in today's The Daily Texan.

Hundreds of signs adorned with crossed out nooses and photos of executed men were held by protestors on the steps of the state Capitol on Saturday as they called for the exoneration of executed Texas man Cameron Todd Willingham.

Anti-death penalty activists have gathered in Austin every October since 2000 to show support for the abolition of the death penalty. This year’s March to Abolish the Death Penalty marks the event’s return to Austin after two years in Houston.

The march was sponsored by more than 50 organizations and included appearances by three exonerated men and the families of current death row inmates.

“I’ve lost all my friends, I lost my family and I am angry,” said Curtis McCarthy, who spent 19 years on death row in Oklahoma before being exonerated in May 2007 by DNA evidence. “I know how the family of Willingham feels. I don’t know what to do about it ... I am here. I don’t know what else to do.”

Willingham was a resident of Corsicana who was convicted of capital murder of his three daughters who were killed in a fire at their home Dec. 23, 1991. Willingham was accused of setting the fire and spent more than 10 years in the trial process claiming he was innocent.

After unsuccessful appeals, Willingham was executed Feb. 17, 2004. The incident has been given increased attention after several independent reviews of the arson investigation claim it based its conclusions on faulty reasoning.

Demonstrators also voiced their opposition to Gov. Rick Perry’s comments and actions this month regarding Willingham’s execution.

At a press conference after a Texas Association of Realtors luncheon two weeks ago, Perry called Willingham “a monster” and said that multiple testimonies and the fact that the court upheld the jury’s verdict proved that Willingham was guilty. Perry told the media to not be misled by anti-death penalty “propaganda.”

The Texas Forensic Science Commission hired Baltimore fire expert Craig Beyler to investigate Willingham’s case.

“The investigators had poor understandings of fire science and failed to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators,” Beyler said in his August report. “A finding of arson could not be sustained.”

On Sept. 30, two days before the commission was set to meet and review Beyler’s report, Perry removed three members of the commission, including the chairman, who he replaced with Williamson County District Attorney John Bradley. Bradley canceled the Oct. 2 meeting, which has yet to be rescheduled.

“If we had any of the number of experts that have come forth now and given testimony in this case, Todd Willingham would have never been convicted. He would have never been executed. He probably never would have even been tried,” said Walter Reaves, Willingham’s lawyer during the appeals process.

Reaves said he is seeking post-mortem exoneration of Willingham as well as a formal apology. He said that reports by arson experts indicating that Willingham did not set the fire were not given a fair consideration during the appeals process.

“[Lawmakers] need to fix the procedural problems with police and prosecutorial misconduct in this state before we even think about executing people,” said Jeff Blackburn, chief counsel to The Innocence Project of Texas.

After an examination of Willingham’s case, the project believes he was unjustly put to death, Blackburn said.

Multiple families appeared at the event showing support for men currently on death row including Rodney Reed, who is accused of the 1996 rape and murder of Stacey Stites.

“I am out here every chance I get and I am going to keep on doing it even after my brother comes home because the death penalty is wrong,” said Roderick Reed, Rodney Reed’s brother. “I got involved because of my brother, but I am going to stay with it until the end to see it is abolished.”

Bruno Mortan/The Daily Texan
Jane Chamberlain holds her homemade
sign as exonerated prisoners talk about their
experiences on death row during an anti-death penalty
march held on Saturday afternoon.

Joshua Sander's of the Austin American-Statesman has an article in the front page of Sunday's Metro section titled, "Protesters march to call for an end to executions."

Anti-death penalty protesters gathered at the Capitol on Saturday in part to voice their disapproval of Gov. Rick Perry's remarks this month regarding Cameron Todd Willingham, the Corsicana man convicted of setting a fire that killed his three young children on Dec. 23, 1991.

The 10th annual March to Abolish the Death Penalty occurred in the midst of a renewed debate over capital punishment, largely spurred by Willingham's case. Most recently, former Texas Gov. Mark White said the state should reconsider its use of capital punishment "so we don't look up one day and determine that we, as the State of Texas, have executed someone who in fact was innocent."

White's comments came as Perry has been criticized for replacing four members of the Texas Forensics Commission and delaying consideration of a fire scientist's report questioning the 2004 execution of Willingham. Perry has described Willingham as a "monster" and said he is certain of his guilt.

One of the lawyers who represented Willingham in his appeals disagreed.

"Todd Willingham was a person who deserved to be treated fairly, and he didn't get that," said Walter Reaves, Willingham's appellate attorney. "No one could ever make the case that if we knew then what we know now that he would have been convicted, tried and executed."

Jeff Blackburn, founder of the Innocence Project of Texas, a nonprofit group that works to overturn wrongful convictions, said that the Willingham case "represents an opportunity for Texas to fix a broken criminal justice system."

Scott Cobb, president of the Texas Moratorium Network, a nonprofit organization that aims to mobilize support for a moratorium on state executions, said about 50 organizations were responsible for organizing Saturday's march.

The event attracted hundreds of people, who carried signs with photographs of inmates currently on death row and posters bearing slogans such as "Stop All Executions."

About a dozen protesters sat on the steps of the Capitol, holding white posters with lists of the hundreds of inmates who have been executed in Texas since 1982, when the state resumed executions.

Austinite Jeanette Popp, 60, came to the march with a different perspective.

On Oct. 24, 1988, Popp's 20-year-old daughter, Nancy DePriest, was found dead with her hands bound behind her back at the North Austin Pizza Hut where she worked. Two men were wrongfully convicted of her death and served 12 years in prison. They were freed in 2001, after DNA evidence implicated another man.

The confessed killer, Achim Josef Marino, said that he had shot DePriest as part of a satanic sacrifice. Eventually, Popp lobbied for Marino to be spared the death penalty, which he was.

Despite the time that has passed, Popp said, the conversation on capital punishment has not changed.

"It's the 21st anniversary of my daughter's murder, and we're still talking about murdering people with the murdering machine," she said.

jsanders@statesman.com; 445-3630

"Protesters march against the death penalty" is Tristan Hallman's article in the Houston Chronicle and San Antonio Express-News.

AUSTIN — A crowd of anti-death penalty protestors, fueled by the controversy over the 2004 execution of Cameron Todd Willingham and changes to the Texas Forensic Science Commission that is looking into the case, gathered at the steps of the Capitol on Saturday for the 10th annual March to Abolish the Death Penalty.

Dozens of protesters marched down South Congress Avenue and recited chants for an end to capital punishment and declared that Gov. Rick Perry was guilty of homicide. The goal, said Scott Cobb, president of the Texas Moratorium Network, was to make Perry admit to Willingham’s innocence and to end the death penalty, which several speakers called corrupt, racist and biased against the poor.

Willingham was convicted of the murder of his three young daughters by setting fire to his Corsicana home in 1991. Recent investigations have questioned the charge of arson.

“We’re certainly convinced now after a review by expert scientific investigators that there is no evidence of arson,” Cobb said.

Joining the protesters were exonerated ex-death row inmates Curtis McCarthy, Ron Keine and Shujaa Graham. Corey Session, brother of Timothy Cole, a man who died in a Texas prison in 1999, spoke as well. Cole’s posthumous exoneration has led to the creation of the Timothy Cole Advisory Panel on Wrongful Convictions, which held its first meeting Friday. Session said he believed Willingham would be exonerated if his case were heard by an advisory panel.

Willingham’s appellate attorney, Walter Reaves, and Willingham’s pen pal and frequent death row visitor, Elizabeth Gilbert, spoke at the event. Gilbert, who said she has three binders full of letters from Willingham, said that after looking into his case, she’s convinced of his innocence.

“Todd was a very caring person,” said Gilbert, who began corresponding with and visiting Willingham in 1999 after getting his information at an anti-death penalty demonstration in Philadelphia. “He was a considerate, polite, funny, smart person. He was a real human being.”

Eugenia Willingham, mother of Willingham, originally was scheduled speak but decided not to. She said she canceled at the last minute in part because she was tired and the drive from her home in Ardmore, Okla., was long. She also said she didn’t want to be a distraction from the focus on her son’s case.

However, Willingham said she also isn’t entirely against the death penalty.

“I feel there probably should be a death penalty,” she said. “But I feel like the system should be reformed in a way so that innocent people aren’t executed. I feel like there are too many people on death row that are innocent.”

Although there had been speculation that the case against Willingham was flawed, much of the national attention on Willingham came after Perry’s decision to not reappoint four state forensic panelists while they were investigating the case. Perry said they were replaced because their terms had expired.

Craig Beyler, a Maryland-based arson expert who had been hired by the Forensic Science Commission, has spoken out against Perry’s action and, in his report, questioned the finding of arson.

Perry responded to Beyler’s criticism by calling Willingham a “monster” and saying Beyler is politically motivated. Beyler has denied those claims.

Perry spokesman Allison Castle said Perry stands by his support for the death penalty. Castle noted that Willingham’s conviction was upheld by nine courts and the death penalty has been upheld as a punishment by the U.S. Supreme Court.

"Death penalty opponents rally at Capitol" is Jay Root's article for the Associated Press.

AUSTIN — Death penalty opponents, convinced an innocent man was executed in 2004, staged a rally Saturday at the Texas Capitol to call for a moratorium on capital punishment and to highlight the controversial case of Cameron Todd Willingham.

Willingham was convicted of capital murder for the 1991 deaths of his three children in a fire at their Corsicana home. Forensic scientists have called into question arson evidence used to convict Willingham, who maintained his innocence until his death by lethal injection.

Dozens of protesters marched from the Capitol down Congress Avenue, waving placards and chanting “Hey hey, ho ho, the death penalty has got to go.”

Organizers of the rally said they want to bring attention to the Willingham case and Gov. Rick Perry's shakeup of the commission that was investigating the science used to convict him.

“We urge the people and the governor to take a look at this case and examine the new evidence,” said Scott Cobb, president of the Texas Moratorium Network. “There is no scientific evidence of arson in this case, and if there was no arson, there was no crime ... We want Texas to admit that it's made a tragic mistake here.”

The governor has come under fire for replacing members of the Texas Forensic Science Commission just before they were to review a new report critical of the arson science used in the capital murder case. Perry has dismissed the criticism as anti-death penalty propaganda, and says the panel will move forward with the investigation. Speaking at a news conference this month, Perry called Willingham a “monster” who beat his wife and then killed his children.

One of the speakers at the event, Willingham friend Elizabeth Gilbert, said she was sickened by Perry's comments. Gilbert, a Houston teacher, befriended Willingham when he was behind bars and became his advocate, helping to spearhead a re-examination of his case.

“They are still continuing to throw mud at Todd to keep people's attention away from the fact that there wasn't an arson case,” she said.

Perry spokeswoman Allison Castle, noting that Willingham's conviction was upheld despite numerous appeals, said the governor believed he was guilty.

“Like most Texans, Gov. Perry supports the death penalty for those who commit the most heinous crimes,” she added.

Willingham's mother, Eugenia Willingham, had been scheduled to speak at the rally but was unable to attend. In a written statement released by event organizers, she told of letters she had received from death row inmates saying her son's execution has caused appeals courts to take a closer look at their cases.

“This won't bring Todd back, but I take comfort in knowing that others may be freed because of him,” she wrote.

UPI: "Texans rally against death penalty"

AUSTIN, Texas, Oct. 25 (UPI) -- Anti-execution activists say the state of Texas must end its death penalty practices.

The 10th annual March to Abolish the Death Penalty held Saturday in Austin drew hundreds of anti-death penalty activists, many spurred by the case of Cameron Todd Willingham, who was executed in 2004 after a scientific report cast doubt on his 1991 triple murder conviction, the Austin American-Statesman reported.

Texas Gov. Rick Perry has been criticized for allegedly failing to read a fire scientist's report questioning Willingham's then-pending execution for the deaths of his three daughters in a house fire. Perry has responded by describing Willingham as a "monster" and saying he is certain of his guilt.

Jeff Blackburn, founder of the Innocence Project of Texas, attended the march and told the American-Statesman the Willingham case "represents an opportunity for Texas to fix a broken criminal justice system."

The newspaper said some protesters carried posters bearing the names of hundreds of inmates executed in Texas since 1982.

Governor Perry Defends Execution of Willingham and San Antonio Express-News Responds

The Dallas Morning News is the first to get Governor Rick Perry to speak publicly about the wrongful execution of Todd Willingham. No surprise from Perry. He rejects the scientific analysis and thinks Willingham was guilty. It is time for the people of Texas to elect a new governor. Perry has several opponents in the Republican primary and if he survives the primary, he will face the winner of the Democratic primary in November 2010.

Sign the petition to Governor Rick Perry and the State of Texas to acknowledge that the fire in the Cameron Todd Willingham case was not arson, therefore no crime was committed and on February 17, 2004, Texas executed an innocent man.

From the DMN:

Governor Rick Perry today strenuously defended the execution of a Corsicana man whose conviction for killing his daughters in a house fire hinged on an arson finding that top experts call junk science.

“I’m familiar with the latter-day supposed experts on the arson side of it,” Perry said, making quotation marks with his fingers to underscore his skepticism.

Even without proof that the fire was arson, he added, the court records he reviewed before the execution of Cameron Todd Willingham in 2004 showed “clear and compelling, overwhelming evidence that he was in fact the murderer of his children.”

These were the governor’s first direct comments on a case that has drawn withering criticism from top fire experts.

Death penalty critics view the Willingham case as a study in shoddy – or at least outdated – science, and they consider it the first proven instance in 35 years of an executed man being proven innocent after death.

“Governor Perry refuses to face the fact that Texas executed an innocent man on his watch. Literally all of the evidence that was used to convict Willingham has been disproven – all of it,” said Barry Scheck, co-director of the Innocence Project, a nonprofit group affiliated with the Cardozo School of Law in New York that has championed the case. “He is clearly refusing to face reality.”

Three independent reviews over the last five years, involving seven of the nation’s top arson experts, found no evidence the fire was set intentionally. The most recent is a report commissioned by the Texas Forensic Science Commission.

The author, renowned arson expert Craig Beylor, blasts the investigators who handled the Willingham case, finding that they misread the evidence and based their conclusions on a “poor understanding of fire science.”

The commission says it is reviewing the Beyler report and other evidence and will issue a conclusion next year.

The fire took place two days before Christmas 1991, and claimed the lives of Willingham’s three daughters: 2-year-old Amber, and 1-year-old twins, Karmon and Kameron.

State fire investigators and Corsicana fire officials maintained that burn patterns, cracked windows and other signs pointed to arson.

Willingham, 24 at the time and an unemployed auto mechanic, had only superficial burns. He said he’d run outside after Amber alerted him to the fire, looking for the others, and couldn’t reenter because the blaze grew so quickly.

He had a criminal record for burglary and grand larceny. He had once beaten his pregnant wife, and a jailhouse snitch said he’d confessed.

At trial, prosecutors told jurors that Willingham had intentionally left his daughters to die in a burning home.

But myriad scientists say that conclusion of arson was based on outdated training that, at the time of trial 15 years ago, had already been replaced by science-based methods that would have pointed to bad wiring or a space heater.

Willingham protested his innocence to the end. Strapped to a gurney awaiting lethal injection on Feb. 17, 2004, he asserted that “I am an innocent man -- convicted of a crime I did not do.”

The Board of Pardons and Paroles, appointed by the governor, had rejected the appeal his lawyers had filed three days earlier. Hours before the execution, the lawyers appealed directly to Perry.

The appeal included a report from a widely respected fire expert, Gerald Hurst, that cast serious doubt on the arson finding.

Hurst, a Cambridge-educated chemist who was chief scientist for the nation's largest explosive manufacturer, says the signs used as proof that an accelerant had been poured were almost certainly the result of “flashover” – an intense heat burst that causes an entire room to erupt in flame.

The effects of flashover can mimic arson.

In 2004, the Chicago Tribune asked three fire experts to evaluate the case. Their testing confirmed Hurst's report. The case was recently featured in an extensive article in The New Yorker, launching a new round of questions.

Perry, in Washington for a campaign fundraiser today and a speech tomorrow to conservative activists, said during an hour-long session with reporters that he does not believe the state executed an innocent man.

“No,” he said. “We talked about this case at length. One of the most serious and somber things that a governor of Texas deals with is the execution of an individual.… We go through a substantial amount of oversight.”

In 2006, the Innocence Project, using state open records law, obtained records from Perry’s office regarding the last-minute appeal. The governor’s office provided no documents that acknowledged the contents of the appeal or its significance, Scheck’s office said – a “lack of action” that indicates the governor ignored critical analysis.

Perry, whose authority as governor is limited to delaying an execution for 30 days, said he reviewed the case extensively.

“I get a document that has all of the court process. It gives you all of his background, all of the court machinations on the legal side of it, and the recommendation of both my legal side and the courts. It’s pretty extensive amount of information,” he said. “I have not seen anything that would cause me to think that the decision that was made by the courts of the state of Texas was not correct.”

The San Antonio Express-News Editorial Board says that there is "not a shred of evidence" that supports the theory that the fire in the Todd Willingham case was arson, and "the overwhelming evidence is that investigators, prosecutors, court appointed defense attorneys, jury members, appellate judges, the Texas Board of Pardons and Paroles and, finally, Gov. Rick Perry failed and Texas executed an innocent man".

"A lethal failure of justice in Texas""

The one argument that gives even death penalty proponents pause is the prospect that the state might put an innocent person to death. Death penalty cases have multiple layers of appeals and reviews that are intended to avoid such an eventuality. Does that process work?

In recent years, the exoneration with DNA evidence of scores of death row inmates nationwide — including many from Texas — has raised serious questions about the way some death penalty defendants are represented and treated in the criminal justice system. Still, while there have been doubts raised about some cases in which executions have taken place, no one has been able to point to a case where an innocent person was clearly put to death.

That may be about to change. Journalist David Grann, writing in the Sept. 7 issue of the New Yorker magazine, makes a compelling argument that when the state of Texas gave Todd Willingham a lethal injection in 2004, it executed an innocent man.

Willingham was sentenced to death for the murder of his three children by arson. A review of the case by experts finds the determination of arson as the cause of the fire that consumed the Willingham home in Corsicana in 1991 was utterly faulty.

In 2005, Texas created a commission to investigate forensic errors in criminal cases. One of the first cases the Texas Forensic Science Commission reviewed was the Willingham case.

As Grann notes, a fire scientist hired by the commission issued a scathing report. He found that “investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of ... fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire.”

In a letter last month to the Corsicana Daily Sun, state District Judge John H. Jackson Sr., who sent Willingham to death row as a prosecutor, responded to the mounting evidence of a wrongful execution. “The trial testimony you reported in 1991,” he wrote, “contains overwhelming evidence of guilt completely independent of the undeniably flawed forensic report.”

In fact, beyond the forensic evidence that Jackson now acknowledges as being flawed, there's not a shred of evidence to support the allegation that Willingham or anyone else started the fire that killed his children. Fire experts believe it was caused by a space heater or faulty electrical wiring. In any case, there was certainly no evidence beyond a reasonable doubt to send Willingham to death row.

The overwhelming evidence is that investigators, prosecutors, court appointed defense attorneys, jury members, appellate judges, the Texas Board of Pardons and Paroles and, finally, Gov. Rick Perry failed and Texas executed an innocent man.

Society should retain the power to apply the ultimate penalty to its most heinous and dangerous criminals. But with that power comes the ultimate responsibility to ensure that the state does not put innocent people to death. The Todd Willingham case suggests that Texas has failed in that responsibility.

San Antonio Express-News: Keller is unsuited for top court job

The San Antonio Express-News, a newspaper that ran long articles covering each day of the trial of Judge Sharon Keller that took place in that city, says in an editorial today titled "Keller is unsuited for top court job" that "one step toward restoring confidence in the system is to hold Keller accountable for the events that took place in 2007 and remove her as presiding judge of the Court of Criminal Appeals."

Even in Texas, the execution of a convicted murderer is not a commonplace occurrence. When the state is prepared to administer the ultimate, irreversible sanction of justice, its officials must ensure that the judicial process has functioned with meticulous care. A human life is at stake.

Sharon Keller has demonstrated herself to be unfit to serve as the highest judge on Texas’ highest criminal appeals court. The state Commission on Judicial Conduct properly prosecuted Keller for judicial misconduct in the case of death row inmate Michael Richard.

On the day of Richard’s scheduled execution in 2007, the U.S. Supreme Court announced that it was going to consider a case that would determine whether execution by lethal injection amounted to unconstitutionally cruel and unusual punishment. Richard’s attorneys had contacted Keller, the presiding judge on the Texas Court of Criminal Appeals, indicating they were planning to file an appeal on that basis.

The Supreme Court case led to a seven-month moratorium on lethal injections. But not before Texas sent Richard to the death chamber. Despite the news from Washington, Keller refused to keep the court clerk’s office open past 5 p.m. to receive the appeal from Richard’s attorneys.

Keller’s defense is that Richard’s attorneys failed to knock on the right doors and weren’t persistent enough. But Richard’s attorneys don’t represent the power of the state and don’t have the same professional and ethical responsibilities as a judge on the Court of Criminal Appeals.

Keller’s actions are at issue, not those of Richard’s attorneys. The judge failed to follow standard procedure for after-hours appeals in death penalty cases. That’s why she faces five counts of official judicial misconduct. In the end, the Supreme Court ruled that lethal injections are constitutional. Richard, who had been on death row for two decades for the gruesome rape and murder of Marguerite Dixon, would have been executed anyway — without questions about the impartiality of Texas justice.

Keller’s irresponsible actions have brought disrepute on the Texas criminal justice system. Worse, they’ve unnecessarily shifted the focus away from the true victim in this case — Dixon.

One step toward restoring confidence in the system is to hold Keller accountable for the events that took place in 2007 and remove her as presiding judge of the Court of Criminal Appeals.

Weekend Editorials on Sharon Keller

The Austin American-Statesman's editorial says that Sharon Keller should not resign and should stand trial, because "at trial, the sordid events of Sept. 25 would be aired before Texas and the world. Keller's cold-blooded and process-centered approach to justice would be on vivid display. A trial would expose Keller's heartless missteps to a fascinated world."

The all-Republican Court of Criminal Appeals is this state's court of last resort in criminal cases, and its reputation for rubber-stamping convictions was well-established before Richard's appeal was rejected. Putting the most important criminal judge in Texas on trial for misconduct is an opportunity to expose the court's long record of callous and reckless disregard for defendants' rights.

...

Keller's defense is a distinction without a difference. And it perfectly illustrates her focus on process over justice. Keller did not tell the other judges that she refused to accept the appeal nor did she refer Richard's plea to Judge Johnson. Every one of those missteps and others would be intensely examined in a trial and should result in her removal from office.

This issue has never been about Richard's guilt or innocence, but about the lack of common decency in refusing his appeal because it would arrive after 5 p.m. Keller should answer for her actions in a public trial.

The San Antonio Express-News in its Sunday editorial called the the misconduct charges against Texas Court of Criminal Appeals President Judge Sharon Keller a "welcome development."

Keller's actions drew an immediate outcry. Even the most passionate death penalty advocates want the judicial system to operate fairly, and Keller denied Richard reasonable access to the court.

The Hearst Austin Bureau reported that the charges against Keller mark “the first case that could result in a public trial and possible removal of a statewide judge.”

Keller has 15 days to file a response, and the case could lead to trial before a special master, Hearst reported.

While Keller's actions in the Richard case violate our sense of justice, she deserves her day in court on the charges.

Regardless of the outcome, the State Commission on Judicial Conduct deserves kudos for having the courage to act in this situation. Public confidence in the system's ability to police itself should be bolstered by the commission's action.

The Houston Chronicle columnist Rick Casey explains the trial process and Sharon Keller's options. "If Keller doesn’t like what these judges decide she can appeal to the state Supreme Court — if her lawyers get their filings in on time."

Based on the evidence it heard during these “informal hearings,” the court could have gone so far as to publicly reprimand Keller. Instead, at least seven members voted in December to initiate a process that could lead to Keller’s removal. Willing cautioned that the vote doesn’t signal that the commission thinks Keller should be removed. It may be that they seek more information that may result from the more adversarial process to come.

It will begin with the appointment of a “special master” by Chief Justice Wallace Jefferson of the state Supreme Court. The master could be from a district court or an intermediate court.

That judge will conduct in public what will look very much like a civil trial, with John McKetta III, an Austin lawyer who will serve without pay as the lead “prosecutor” for the commission, and a lawyer for Keller putting on witnesses for examination and cross-examination.

The special master will then issue a “finding of facts,” but will not decide Keller’s fate. Instead his or her findings will be returned to the commission, which will hear from both sides and possibly take new evidence in a public hearing, and then retire to decide whether to recommend Keller’s removal. That’s right: recommend.

A judge, it seems, must be judged by judges.

So Chief Justice Jefferson will pick by lot a seven-member “review tribunal” from a pool consisting of one member chosen by each of the state’s 14 intermediate courts of appeal. The first picked will be chairman.

The tribunal will hold yet another hearing and possibly take more new evidence, then decide whether to accept the commission’s recommendation or impose a tougher or more lenient sanction.

If Keller doesn’t like what these judges decide she can appeal to the state Supreme Court — if her lawyers get their filings in on time.

Death penalty system fatally flawed

Thats the title of Sam Milsap's column in the San Antonio Express-News.

According to a report released last week by the Texas Coalition to Abolish the Death Penalty — Texas Death Penalty Developments in 2008: The Year in Review — this year Texas juries condemned the fewest number of people to death in more than 30 years.

As of Dec. 10, a total of 10 people (nine men and one woman) had been sentenced to death in Texas in 2008.

Perhaps this reflects the public's growing uneasiness with the death penalty or prosecutors' recognition that the costs of the ultimate punishment — both human and financial — are too high. Or perhaps my fellow Texans have come to share my realization that a fallible system that puts people to death simply cannot be trusted.

Evidence of misplaced trust in the death penalty system was on stark display on Aug. 25, when a Collin County court dismissed all charges against death row inmate Michael Blair for the 1993 rape and murder of 7-year-old Ashley Estell.

After the results of new DNA testing failed to connect him to the crime, those involved in the case agreed that there was not enough evidence to uphold the conviction. Blair had spent 14 years on death row. Michael Blair was the fourth person exonerated from death row nationally in 2008 and the 130th overall since 1973, according to the Death Penalty Information Center.

DNA played a role in just 17 of these cases. Blair is the ninth person exonerated from death row in Texas.

Such willingness to admit a mistake has come too late for several inmates who claimed to be innocent of the crimes for which they were executed.

In an interesting turn of events, the Texas Forensic Science Commission agreed this past August to a request from the Innocence Project to investigate the possibility of misconduct in the arson case of Cameron Todd Willingham.

Willingham was convicted in 1991 of setting a fire that killed his three daughters; he was executed by the State of Texas in 2004. According to the Innocence Project, a panel of leading experts later determined that the fire was not arson and that forensic experts at the time of Willingham's trial should have known that the fire was an accident. The commission will investigate the faulty forensic analysis used to convict Willingham.

Similar analysis was used in 2004 to exonerate Ernest Ray Willis, who had spent 17 years on Texas' death row for a crime that did not occur. Should the results of this investigation rule out arson, it will further undermine the credibility and integrity of the Texas death penalty system — though clearly too late to benefit Mr. Willingham.

In another Texas case, that of Carlos De Luna, a documentary film released earlier this year continued to call into question his guilt. “At the Death House Door” is based on an in-depth inquiry by journalists with the Chicago Tribune. To date, no official investigation has taken place, although strong evidence points to another suspect in the crime (now deceased) for which De Luna was executed 19 years ago.

We cannot sanction a death penalty system that gets it right most of the time. An honest assessment of the problems associated with the death penalty is long overdue.

I urge Texas lawmakers to consider the cases of Cameron Todd Willingham, Carlos De Luna, Michael Blair, Ernest Ray Willis and others when they reconvene in January and to recognize the ultimate fallibility of a system that no longer deserves our trust... or our support.

When it comes to human life, a system that gets it right most of the time should not exist at all.

Express News: Inmate's supporters appeal to governor

San Antonio Express-News has published an article about our rally at the Alamo in support of Jeff Wood. Also most of the local news channels were present. I will post some of the video reports as they become available online.

Supporters of Texas inmate Jeffrey Wood, scheduled to die Aug. 21 for the 1996 murder of a Kerrville convenience store clerk, are hoping Gov. Rick Perry can see how similar Wood's case is to that of an inmate whose death sentence he commuted to life in prison last year.

“It was the exact same thing,” said Wood's wife, Kristin. “He has faith, especially that the truth will come out eventually.”

Jeffrey Wood and his former roommate Daniel Reneau were convicted of murdering Kris Keeran, a clerk at the Kerrville Gold Star Texaco.

According to court testimony, Reneau held up the store . on Jan. 2, 1996, and shot Keeran after he refused to participate in a plan to stage a robbery and split the proceeds. Wood drove the getaway car. In a taped interview with a Kerrville police detective, Wood called Keeran “a real good friend.”

Wood's defense team claimed he was unaware that a robbery, let alone murder, would occur.

Kerr County Assistant District Attorney Lucy Wilke, formerly Lucy Cavazos, won a conviction against Wood under the law of parties statute, which makes someone who participates in an act that leads to homicide as culpable as the actual killer.

In a letter sent in July to the Texas Board of Pardons and Paroles, Wilke wrote, “Mr. Wood was the mastermind of this senseless murder. It was Wood who showed his teenage brother the surveillance video tape depicting the murder, while laughing, and then ordered his brother to destroy the tape.”

On Saturday, about 20 people gathered in front of the Alamo to rally for Wood's life, begging Perry for help.

Last August, Perry commuted a death sentence to life in prison for inmate Kenneth Foster Jr., also convicted under the law of parties statute.

“Jeff's case is so much like Kenneth's case; it is like a mirror image,” Lawrence Foster, grandfather of Kenneth Foster Jr., wrote in a statement read at the rally. “I remember thinking last summer that Texas had already executed the killer and yet they wanted Kenneth. It is the same for Jeff.”

The cases are so similar that Norway native Kristin Wood, 29, has found comfort and support from the Foster camp, including from Foster's wife, Tasha, a 24-year-old Netherlands citizen.

Wood's relatives staged the rally with the Texas Moratorium Network, which wants a two-year moratorium on all death penalty cases. A second rally for Wood is planned for Aug. 16 in Austin.

Meanwhile, younger relatives have joined a group called Kids Against the Death Penalty.

“I'm here because Jeff Wood is innocent and on death row for a murder that he didn't commit,” said Gavin Been, 11, Wood's nephew.

According to the Texas Moratorium Network, attorney Jared Tyler with the Texas Defender Service is preparing a clemency package to submit on Wood's behalf.

The victim's father, Charles Keeran, also would like to see Wood live.

“The death penalty, to me, is the easy way out,” he said. “If you had to be down there and get up every morning, as hot and humid as it is, knowing that you are going to spend the rest of your life locked up under those conditions, that's punishment. That's what I think my son would want for him.”

Star-Telegram and Express-News

"No Needle" is title of another Fort Worth Star-Telegram editorial against execution of Kenneth Foster.

Although his statement could have been phrased a tad more gently, Gov. Rick Perry was on target when he informed the European Union that Texans aren't too concerned about what Europeans think when it comes to his state's use of the death penalty.

Calls from South African Archbishop Desmond Tutu and former President Jimmy Carter to spare the life of Death Row inmate Kenneth Foster Jr. are likely to receive similar dismissals.

But Perry and the state Board of Pardons and Paroles should be listening to what Texans say when it comes to today's scheduled execution by lethal injection of Foster, who did not fire the gun that ended Michael LaHood's life that Aug. 15, 1996, night in San Antonio.

Thirteen members of the Texas House petitioned Perry and the board to commute Foster's sentence to life without parole.

Those voices -- those of legislators who, in the words of their Aug. 23 letter, "are responsible for making the laws of the State of Texas" and "also assume responsibility for protecting our system of justice from mistakes" -- argued that the execution of Foster "is just wrong."

No one who has read the case file can argue that Foster is a complete innocent. He was driving the car that carried the triggerman, Mauriceo Brown, who was executed in 2006 for killing LaHood. Foster was present earlier in the evening when Brown and two other men committed two robberies.

Prosecutors in this case used the state's "law of parties" statutes to hold Foster criminally responsible for the actions of another. Under Section 7.02(b) of the state penal code, if two or more "conspirators" agree to commit a crime and in the process commit another, each conspirator is guilty of the crime committed if the crime was "one that should have been anticipated."

Foster deserves to spend a long, long time -- if not the rest of his life -- behind bars for what he did do that night. But he does not deserve to die -- not today, not at the hands of a state executioner.

Rebeca Chapa has published a column in San Antonio Express-News titled: Lone Star State's broken system metes out irreversible 'justice'

By this evening, unless something dramatic happens at the governor's office, Kenneth Foster will be dead by the state's hand. He will be the 403rd person executed in Texas since 1982.

No big deal, right? We do it all the time. In fact, we've already executed two people just this week, so what's one more criminal?

But here's the rub: Foster didn't kill anybody. He drove the vehicle and was certainly there that night, but he did not take a life. That alone should keep him off death row.

Foster was involved in the 1996 robbery and murder of Michael LaHood Jr. He and three others tailed LaHood and his girlfriend to a home in the U.S. 281-Bitters Road area. The 2 a.m. robbery turned deadly when Mauriceo Brown got out of the car and shot LaHood, the son of a prominent local attorney, at close range in the face.

Brown was executed last year. The two others, Julius Steen and DeWayne Dillard, are serving prison sentences for other crimes that are not related to the LaHood case.

Foster and Brown were convicted together based on the Texas law of parties, which also applies to capital cases. In essence, the jury found Foster guilty because he should have known that Brown was going to shoot LaHood.

But sworn testimony, including from two of his co-defendants, indicates that there was no conspiracy, something the jury would had to have concluded to apply the death sentence to Foster.

No one argues that Foster is an angel. And certainly no one argues that he is innocent of a crime. But executing him is going too far.

"If Kenneth Foster's execution is permitted to go forward, it will mean that the death penalty in Texas predates Old Testament law, which limits one life for a life," Keith Hampton of Austin, Foster's attorney, said Wednesday.

"If you are not deserving for clemency because you killed, and you can't be spared when you didn't, not only is there officially no clemency in Texas, but we've expanded death to bounds not seen since before Moses," Hampton said.

Of course, this comes as no surprise. We do everything big in Texas.

This year, two developments at the Legislature served to further cement that reputation.

On the one hand, we expanded the list of capital crimes to include repeated child molestation. Although child molesters certainly rank among the more heinous among us, even some child advocates oppose the death penalty. Child abuse is often committed within the family circle, which could deter members from reporting abuse if they believe their "loved one" could get the needle.

It also, they say, could prompt predators to kill their victims to avoid identification and subsequent punishment.

On the other hand, legislators decided for the third time against creating an innocence commission designed to review documented cases of wrongful conviction. At least 28 cases of wrongful conviction have turned up since 2001, when a law began allowing inmates to petition for DNA testing.

So ... we want to kill more people, but we don't want to confront information that might indicate we got the wrong guy. (The innocence commission wouldn't have even considered the cases of executed felons, and it still didn't pass!)

In another pathetic case, an El Paso man is sitting on death row despite widespread belief among many close to the case that his confession was coerced as a result of police misconduct. The prosecutor in the case told the Chicago Tribune in 2000 that he would have suppressed the confession if he had known about the misconduct.

Without that confession, Cesar Fierro would not be on death row.

There are hundreds of men, and 10 women, awaiting the final punishment in Texas. And yet we still have violent, horrible crime. Something's not working.

Isn't it time we put an end to yee-haw justice?

Hundreds march for Kenneth Foster

Hundreds of Texans marched down the Congress Avenue and later at the Governor's Manssion last Saturday calling on Gov. Rick Perry to stop execution of Kenneth Foster. As Scott Cobb of TMN mentioned, "The rally for Kenneth Foster last Saturday was probably the best, most well-attended, high energy protest of a pending execution in Texas since the Gary Graham protests back in 2000." The event received coverage on Democracy Now, KXAN, News 8 Austin and The Daily Texan. I will have some video clips from the rally by tomorrow.

Also last Sunday San Antonio Express-News published an OpEd by Prof. Roger C. Barnes of the Incarnate Word University.

Further, for 15 straight years, murder rates have run higher in death penalty states than in states without it. This system doesn't function as promised.

And there is growing evidence that people are starting to catch on.

First, a national Gallup Poll now reports that overall support for the death penalty has slipped from 80 percent in 1994 to 67 percent in 2006.

And, when given a choice between life without parole and the death penalty for murder, 48 percent now favor life without parole, compared to 47 percent for those who favor death.

Second, some newspapers are reversing their longstanding support for the death penalty. The Chicago Tribune, Dallas Morning News and Birmingham News are calling for the abolition of the death penalty.

Many others such as the Express-News, the Houston Chronicle, and the Fort Worth Star-Telegram have called for a moratorium on the death penalty.

Third, the willingness of capital juries to hand down death sentences appears to be on the decline. In 1996 there were 317 death sentences given nationwide. By 2005, death verdicts had declined to 128.

Fourth, while 12 states do not have the death penalty, an additional 12 states with the death penalty now find their executions on hold.

Legal challenges to the methods of execution, official moratoriums, or a ruling by the state high court have suspended executions in those states.

Maryland vs. Texas

Kudos to Gov. O'Malley of Maryland and shame on Rep. Aaron Pena and the Texas House Committee on Criminal Jurisprudence

While Texas republicans debated expanding the death penalty to repeat child molesters, the Maryland governor, Martin O'Malley testified in support of the Death penalty Abolition bill. According to the Washington Post:

The issue, one of the most divisive facing the General Assembly this year, drew pleas from people on both side of the issue during separate hearings conducted by House and Senate panels. But far more people turned out to support repeal, with nearly 30 people signing up to testify in favor of the bill in the Senate.

Governor O'Malley also had a column on today's Washington post:

Human dignity is the concept that leads brave individuals to sacrifice their lives for the lives of strangers. Human dignity is the universal truth that is the basis of ethics. Human dignity is the fundamental belief on which the laws of this state and this republic are founded. And absent a deterrent value, the damage done to the concept of human dignity by our conscious communal use of the death penalty is greater than the benefit of even a justly drawn retribution.

The proposed "Jessica's Law" sponsored b y Rep. Debbie Riddle, R-Tomball passed out of the Texas House Committee on Criminal Jurisprudence today and will be considered on the Texas House floor very soon. According to Rep. Aaron Pena, "The House bill does not include the Senate's minimum 25-year mandatory sentence for first-time offenders."

Also San Antonio Express-News had another editorial that called for the review of the Death Penalty system rather than expanding it:

But the death penalty isn't the right way to go. Even some child advocacy groups oppose the death penalty as an option in cases of child sexual abuse. Because abuse is so often committed by someone within the family circle, the practice could deter family members from reporting abuse and could prompt predators to kill their victims to avoid punishment, they argue.

Picture: Gov. Martin O'Malley asks for the repeal of the death penalty Wednesday as he gives testimony before the Senate Judicial Proceedings Committee. (Sun photo by Kim Hairston)