A bizarre way to judge our judges



By RICK CASEY
Copyright 2009 Houston Chronicle
Feb. 21, 2009


One definition of bizarre is this: Texas putting on trial its top 
criminal judge for shutting the courthouse door on lawyers seeking a 
last-minute delay of their client’s execution.
We do, after all, account for about half the nation’s executions. If 
Court of Criminal Appeals Chief Judge Sharon Keller ran a campaign ad 
bragging on her action, it would win her more than a few votes.
Another definition of bizarre: the process that will decide whether 
Keller is removed from her powerful post heading the state’s highest 
court for criminal matters.
If you missed the story, the State Commission on Judicial Conduct 
Thursday issued a notice of “formal proceedings” that could lead to 
Keller’s removal.
A Rube Goldberg system

On Sept. 25, 2007, the U.S. Supreme Court agreed to hear arguments in 
a Kentucky case that lethal injection was unconstitutionally cruel. 
Murderer Michael Wayne Richard was set to be executed by lethal 
injection that evening in Texas. When Richard’s lawyers experienced 
computer problems and sought permission for a half-hour or so of 
extra time to file for a stay of execution based on the Supreme Court 
action, Keller instructed court staff to tell them the clerk’s office 
would close at 5 p.m.
Meanwhile, the judge assigned under the court’s policies to receive 
all communications regarding the case, Cheryl Johnson, stayed late 
expecting the defense’s request.
Richard was executed that night. When reports came out of Keller’s 
apparent failure to follow court policy, a group of lawyers filed a 
complaint with the state commission that started the Rube Goldberg 
judicial discipline process rolling.
Considerable work has already been done. The commission, which is 
made up of six judges from a municipal judge to an appellate judge, 
two lawyers and five members of the public, had its first of three 
closed-door hearings on the case last June, after a preliminary 
investigation by its staff. Keller herself appeared under oath.
“She has been very cooperative,” said Commission Executive Director 
Seana Willing.
The commission also held closed-door meetings on the matter in August 
and October. They heard from others involved in the matter, including 
some of Keller’s colleagues on the court.
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.

rick.casey@chron.com

http://www.chron.com/disp/story.mpl/metropolitan/6274626.html