Judge draws pub­lic re­buke

Keller, chas­tised for re­fus­ing ex­e­cu­tion ap­peal, keeps seat

Austin American-Statesman - - FRONT PAGE - By Chuck Lindell

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.

Michael Richard

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