Judge faces ethics trial
By Chuck Lindell
AMERICAN-STATESMAN STAFF
Friday, February 20, 2009
The state judicial ethics commission on Thursday charged Sharon
Keller, the presiding judge of the state's highest criminal court,
with violating her duty and bringing discredit upon the judiciary
when she refused to allow a death row prisoner to file an after-hours
appeal in 2007.
The inmate, Michael Richard, was executed that night.
Keller will face a public trial to answer the charges and could be
removed from office, reprimanded or exonerated.
"Judge Keller's willful and persistent failure to follow (her
court's) execution-day procedures on Sept. 25, 2007, constitutes
incompetence in the performance of duties of office," according to a
charging document from the State Commission on Judicial Conduct.
The document listed five charges accusing Keller of violating the
Texas Code of Judicial Conduct, which requires judges to act in a
manner that promotes public confidence in the judiciary and to ensure
that every person is provided access to court.
Keller referred questions to her lawyer, Chip Babcock of Houston.
"Judge Keller very much denies these allegations," Babcock said. "But
as importantly, there are a number of facts which are omitted (in the
charges) that would win the case for her if known."
Keller's trouble began when she advised the clerk's office of the
Court of Criminal Appeals to close at 5 p.m. on the day Richard was
to be executed in Huntsville.
Richard's lawyers, who were experiencing computer problems, had asked
the court to stay open for an appeal based on that morning's decision
by the U.S. Supreme Court to examine whether lethal injection was a
cruel and unusual punishment.
The Supreme Court review halted all executions for seven months —
except for Richard's. Denied the proper forum to raise the appeal, he
was executed at 8:20 p.m. that night.
One week later, the American-Statesman reported that Keller decided
to close the courthouse without consulting the other eight judges on
the appeals court, even though several stayed past 5 p.m. in
anticipation of a late appeal. Keller also failed to inform the judge
designated to handle any Richard appeal, Cheryl Johnson, of her
decision.
The report ignited global outcry and several complaints to the
judicial ethics commission — including one signed by 25 prominent
lawyers — claiming that Keller violated her legal obligations.
A commission investigation and three informal hearings followed,
culminating in a closed-door decision to file charges against Keller
in December.
Austin lawyers Mike McKetta and Michelle Alcala, with the Graves
Dougherty Hearon & Moody law firm, were hired as special counsel to
draft the charging document and to oppose Keller at trial.
The as-yet-unscheduled trial will be conducted before a special
master, a sitting judge from outside Travis County who will be
appointed by the Texas Supreme Court.
Keller will be allowed to present evidence, raise objections and call
and cross-examine witnesses in a forum that will resemble many civil
court trials, said Seana Willing, executive director of the
Commission on Judicial Conduct.
"The judge can put on her case, and we can put on our case," Willing
said.
Once that trial is completed, the special master will prepare
findings for the Commission on Judicial Conduct. The 13-member
commission, which has two vacancies, will issue its decision in a
public hearing, Willing said.
A removal recommendation would be reviewed by a specially formed
panel of seven appellate judges, who can dismiss the case, issue a
censure or issue a removal order. Censure or removal can be appealed
to the Texas Supreme Court.
Keller, a Republican, became the first woman to serve on the Court of
Criminal Appeals in 1994. She was elected presiding judge in 2000,
and her current term ends in 2012.
clindell@statesman.com; 912-2569
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