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.”

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