"Misconduct Trial Begins Today for Texas Judge Who Refused Late Capital Appeal" by Debra Cassens Weiss is in today's ABA Journal.
Paul Weber writes the AP preview article, "Texas judge ended day as death row appeal waited," via Google News.The presiding judge of the highest criminal appeals court in Texas is expected to testify on her own behalf in a hearing that begins today. At issue is whether Judge Sharon Keller committed misconduct by refusing a late-filed capital appeal.
Lawyers for death-row inmate Michael Richard had been scrambling to file an appeal on Sept. 25, 2007, because of a decision earlier in the day by the U.S. Supreme Court to accept a case challenging the constitutionality of a three-drug lethal injection cocktail. Keller told a court employee who called her at home about the request for a late appeal that the court closes at 5 p.m. Richard was executed later that evening.
Prosecutors for the State Commission on Judicial Conduct contend Keller had a duty to inform a judge on call about the lawyers' request, the Houston Chronicle reports. But Keller’s lawyer contends it was up to the inmate’s lawyers to call the on-duty judge.
As lawyers frantically tried to file the last-minute appeal that could have halted the execution of a death row inmate, the Texas judge who oversaw the only court who could hear it was preparing to shut the doors for the day.
"We close at 5," Judge Sharon Keller told a court staffer Sept. 25, 2007.
The appeal was never heard, and four hours later, convicted killer Michael Wayne Richard was executed. Now it's Keller who will be before a judge, facing charges that could end her career in a special trial that begins Monday in San Antonio. Denying the rights of a condemned man is among five judicial misconduct charges that Keller, the presiding judge of the Texas Court of Criminal Appeals, is up against.
Nicknamed "Sharon Killer" among critics for a tough-on-crime reputation crafted over the years, Keller is the highest-ranking judge in Texas to be put on trial by the state Commission on Judicial Conduct. The judge overseeing the trial will submit a report to the commission, which could dismiss the charges, issue a censure or suggest Keller be removed from the bench.
The Austin American-Statesman's Chuck Lindell, who broke the original story, writes a excellent FAQ report for the Sunday edition. Here's an extended excerpt:
With her career as a judge on the line, Sharon Keller will step into a San Antonio courtroom Monday to answer charges that she improperly closed her court to an appeal by death row inmate Michael Richard on the night of his 2007 execution.
As presiding judge of the state's highest criminal court, Keller is the highest-ranking member of the Texas judiciary to ever face such a public inquiry — a rarely used disciplinary measure by the State Commission on Judicial Conduct, an independent agency that investigates complaints against judges.
Only four judges — one district judge and three justices of the peace — have gone through the process in the past six years. All were removed from office.
What will the trial be like?
Proceedings are expected to last three to four days and will resemble a civil trial, with lawyers calling and questioning witnesses, submitting exhibits and providing opening statements and closing arguments.
Who is the judge?
District Court Judge David Berchelmann Jr. will act as "special master," overseeing the trial from his courtroom in downtown San Antonio. He was chosen for the job by the Texas Supreme Court.
Berchelmann was the first Republican to serve on the Court of Criminal Appeals when he was appointed in 1989, and left in 1992. Keller joined the court in 1995.
Who are the lawyers?
The prosecutor, known as the "examiner," will be Mike McKetta, one of Austin's top trial lawyers. Like all outside lawyers hired by the State Commission on Judicial Conduct, Mc-
Ketta will be paid $1 and chalk it up to pro bono work — free legal aid done in the public interest.
Keller will be represented by Chip Babcock of Houston, also a top Texas lawyer, though his specialty is First Amendment law. Under state law, Babcock cannot reduce his rates while working for a sitting judge.
Will Keller testify?
Yes.
Who else is expected to testify?
Cheryl Johnson, who sits with Keller on the Court of Criminal Appeals.
• Texas Defender Service lawyers David Dow and Alma Lagarda, who worked on Richard's briefs in Houston, and Greg Wiercioch, a Californian who worked on Richard's case from the Texas Defender Service's office in Austin.
• Abel Acosta, the court's deputy clerk who took the 4:40 p.m. phone call requesting more time, and Rindy Fox, the Texas Defender Service paralegal who made that call.
• Jordan Steiker, a University of Texas law professor and co-director of the law school's Capital Punishment Center, has been designated as a prosecution expert.
• Roy Greenwood, a retired Austin lawyer, is listed as a defense expert.
• Ed Marty, the court's retired general counsel, was deposed in Alabama, where he now lives. He will testify via videotaped deposition, as will out-of-towners Wiercioch and Lagarda.
• Eric Shirk, a computer forensic expert, will testify for the defense.
• Rick Wetzel, former general counsel for the Court of Criminal Appeals, also may be called.
When can we expect a ruling?
The special master will not render a verdict. Instead, Berchelmann will send his findings of fact to the Commission on Judicial Conduct. A state rule requires him to act "promptly."
The 13-member commission will hold a hearing, which will be open to the public, allowing Babcock and McKetta to discuss objections or proposed modifications to Berchelmann's findings.
The commission will deliberate in private and, at a later date, adopt one of three options: dismiss the charges, issue a public censure or recommend that Keller be removed from office. Removal must be supported by seven of the 13 members.
For today's Statesman, Lindell writes, "Death penalty debate peripheral to Keller trial.
In a case that has inflamed passions on both sides of the death penalty debate, Judge Sharon Keller goes on trial today on civil charges that she improperly closed the state's highest criminal court to an execution-day appeal in 2007 because the inmate's lawyers were running late.
The moral debate over the death penalty, however, will play no role in Keller's trial, said her lawyer, Chip Babcock — and prosecutors agree.
"This isn't about whether you are for or against the death penalty. It's really about process," said Seana Willing, executive director of the State Commission on Judicial Conduct, which investigates allegations of wrongdoing by Texas judges.
"I think even the most ardent supporter of the death penalty would agree that you want to make sure ... the process is followed and there aren't mistakes along the way," said Willing, who will act as co-examiner, or prosecutor, during Keller's trial.
Still, opponents of capital punishment relish the idea of Keller, a self-described pro-prosecution judge, sitting at the defense table to fight the potentially career-ending charges.
These opponents say Keller's decision to enforce the court's 5 p.m. closing time epitomizes a flawed death penalty system that values ruthless efficiency over careful administration of the ultimate punishment.
The San Antonio Express_ News reports, "Embattled judge faces own trial," by Craig Kapitan.
For almost two years, critics have called for the resignation of Sharon Keller, one of Texas' highest-ranking judges, over charges of unethical conduct after she refused to accept a last-minute appeal from a death row inmate.
Starting today, a rare hearing will begin in San Antonio that could help settle the matter.
Keller — the presiding judge of the Texas Court of Criminal Appeals, the criminal equivalent to the State Supreme Court — will sit before state District Judge David Berchelmann Jr. at the Bexar County Courthouse as special prosecutors for the State Commission on Judicial Conduct present evidence against her.
The process — which has never involved a judge as high-ranking as Keller — could result in the judicial misconduct charges being dismissed, or could be the beginning of a protracted legal battle to boot her from the bench.
Keller is no stranger to controversy.
In 1998, she wrote an opinion denying a new trial to a mentally disabled man who'd been convicted of rape and murder even though DNA tests appeared to clear him.
The latest firestorm, a frequent launching point for criticism of Texas' death penalty policies, began with a short telephone conversation minutes before 5 p.m. on Sept. 25, 2007.
Earlier coverage begins here. You can also view the State Commission on Judicial Conduct's original complaint.
I've pointed out, above, Chuck Lindell's original report breaking the news of Keller's order to close the Court. Some of the critical early reporting is noted in these posts:
- More on the CCA's Refusal to Consider Richard Stay Request
- Editorial Outrage at CCA Closed Door
- More on the CCA Closed Door
- Ethics Complaint Filed Against CCA Presiding Judge
- More on the Ethics Complaint Against Judge Keller
- Continued Criticism of Presiding Judge Sharon Keller
- More on the September 25 Timeline and the Execution of Michael Richard
"Sunlight is said to be the best of disenfectants," is what future Supreme Court Justice Louis Brandeis said in his 1914 book, Other People's Money and How the Bankers Use It. It's still true, thanks to journalists who peer into some of our society's darkened corners to give us a sense of the inner workings.
Texas Monthly's "The Judgment of Sharon Keller," is noted here. Keller also faces an ethics complaint over inaccurate financial disclosure reports she filed, noted in the post, "Texans for Public Justice Files Complaint Against Keller."
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