Judge draws public rebuke
Keller, chastised for refusing execution appeal, keeps seat
Condemning Judge Sharon Keller’s conduct but declining to push for her removal from office, a judicial ethics panel reprimanded the state’s top criminal judge Friday for her role in a botched execution-day appeal in 2007.
The State Commission on Judicial Conduct issued a “public warning” to Keller, saying she failed to properly perform her duties when she chose 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.
Keller’s decision violated court procedures and meant death row inmate Michael Richard was executed later that night without his final appeal being heard in court, the commission ruled.
“Judge Keller’s conduct … is clearly inconsistent with the proper performance of her duties as a judge” and brought discredit upon the legal system, the commission said.
Keller, who has denied wrongdoing, will appeal the reprimand.
“It is perhaps not surprising that the same commission that made the charges finds them
Continued from A1 now to be valid despite overwhelming evidence to the contrary,” said her lawyer, Chip Babcock. “Judge Keller looks forward to challenging this decision.”
Jim Harrington of the Texas Civil Rights Project, which filed a complaint against Keller with the judicial commission, criticized the reprimand as a slap on the wrist. Commissioners, he said, should have recommended that she be removed from office, kicking off a new inquiry by a specially created panel of seven appellate judges.
“I think the rebuke is rather weak,” Harrington said. “It was just so cavalier, the way she handled everything.”
In focusing solely on Keller’s actions the night Richard was executed, the commission disregarded the bulk of the judge’s defense, which blamed Richard’s lawyers for the missed appeal and portrayed Keller as the victim of a coordinated, strident attack by opponents of the death penalty.
The commission also ignored advice from District Judge David Berchelmann Jr., who recommended that charges against Keller be dropped, saying “the public humiliation she has surely suffered” is punishment enough.
Berchelmann, whom the Texas Supreme Court appointed to act as “special master” in the Keller case, released his findings in January after holding a four-day hearing last year.
Though Berchelmann chastised Keller for several questionable decisions the night Richard was executed, he concluded that most problems with Richard’s case were caused by his lawyers with the nonprofit Texas Defender Service.
Defense lawyers failed to diligently prepare his final appeals, did not pursue available options to file motions after 5 p.m. and engaged in a series of post-execution distortions and embellishments designed to fan public furor against Keller, Berchelmann said.
Babcock had urged the commission’s 12 voting members — one member did not participate in Keller’s case — to honor Berchelmann’s findings.
But commissioners, who did not reveal how they voted, found that Keller violated court procedures that required all inquiries to be referred to Judge Cheryl Johnson, who was assigned to handle any late appeals on Richard’s case.
By unilaterally disposing of the request for more time — and failing to mention it to fel- low judges afterward — Keller circumvented safeguards designed to ensure that any issue, “slight or great,” receives court attention “before the irreversible event of death,” commissioners found.
Keller’s legal troubles began Sept. 25, 2007 — execution day for Richard.
That morning, the U.S. Supreme Court agreed to hear a case challenging lethal injection as unconstitutionally cruel, causing Richard’s legal team to split its efforts in two directions.
One Texas Defender Service lawyer finished a Supreme Court appeal arguing that Richard could not be executed because he was mentally disabled, and another lawyer began drafting a motion asking the Texas Court of Criminal Appeals to halt Richard’s punishment until the Supreme Court ruled on the lethal injection claim.
But with only one of four planned appeals nearing completion and time running out, a paralegal phoned the court about 4:45 p.m. to ask for more time.
A short time later, the phone in Keller’s Austin home rang. On the other end was the court’s then-general counsel, Ed Marty, who said Richard’s legal team had requested more time to file an appeal.
No, Keller replied. “We close at 5.”
Keller’s refusal had the effect of closing the court to Richard’s lawyers and compromised their ability to seek a stay of execution from the U.S. Supreme Court, because it did not have a lower-court decision to review, commissioners found. No other inmates were executed until the court ruled on the lethal injection case seven months later.
News of Keller’s decision prompted worldwide condemnation and a flood of complaints to the State Judicial Conduct Commission, which is made up of six judges appointed by the Texas Supreme Court, five citizens named by Gov. Rick Perry and two lawyers appointed by the State Bar of Texas.
How Keller will appeal the reprimand was unclear Friday. An appeals process was mandated last legislative session, but the Texas Supreme Court has not yet created a process.
But the proceedings will add to Keller’s growing legal expenses:
In April, the Texas Ethics Commission fined her $100,000 — its largest-ever civil penalty against a politician — for failing to disclose at least $3.8 million in income and Dallas-area property on annual financial statements. The Dallas Morning News discovered the omissions after Keller complained that she risked a “financially ruinous legal bill” to fight the judicial conduct commission’s charges.
Keller has appealed the fine with a lawsuit in district court in Travis County.
Babcock would not disclose how much Keller has spent on his law firm, Jackson Walker, but legal experts say it could easily top $1 million. The Texas Ethics Commission does not allow law firms to give discounts when representing a sitting judge.
Whether Keller pays a political price won’t be known until 2012, when her current six-year term ends.
Sharon Keller plans to appeal ethics panel’s ruling.