Keller trial wraps up with harsh criticism



Decision will come later on whether judge violated court rules 
regarding 2007 execution appeal.

By Chuck Lindell

AMERICAN-STATESMAN STAFF

Friday, August 21, 2009

SAN ANTONIO — Dismissing most of Judge Sharon Keller's defenses as 
legally irrelevant, prosecutor Mike McKetta said the state's highest 
criminal judge failed to perform her job competently in one of the 
most crucial areas of the law: the death penalty.

"What kind of telephone call can you get on execution day that could 
be more urgent than this one: 'We are trying to file'?" McKetta asked 
Thursday as Keller's four-day misconduct trial came to an end.

And yet, he said, "we know she said no. ... We know she said no a 
second time. We know she said, 'We close at 5 p.m.' She knew a filing 
was anticipated, and what did she do? 'No. No.' "

Defense lawyer Chip Babcock, in his closing arguments, blamed the 
charges against Keller on a well-orchestrated attack by death penalty 
opponents and lies repeated by lawyers for death row inmate Michael 
Richard, whose missed appeal and execution in 2007 formed the basis 
of the case against Keller.

"To even suggest that this fine woman, this fine judge willfully 
violated the law is frankly an outrage," Babcock said.

"She and her family — and the family of Mrs. Dixon, frankly — are 
being put through this ordeal because some very vocal people don't 
like the way Judge Keller rules," he said.

Marguerite Dixon was raped and killed by Richard in 1986. Two of her 
daughters, Marijo and Paula Dixon of Austin, were in the courtroom 
Thursday.

Keller's trial ended without a resolution.Under rules governing cases 
of alleged misconduct against judges, District Judge David 
Berchelmann Jr. will compile "findings of fact" for the State 
Commission on Judicial Conduct.

The 13-member commission will rely on the findings to decide among 
three options: drop the charges, censure Keller or suggest that she 
be removed from office. A removal recommendation would be ruled on by 
a specially created panel of seven appellate court judges.

In his closing arguments Thursday, McKetta urged Berchelmann to focus 
on conduct — "what Judge Keller knew, said, thought, decided, did and 
failed to do."

Keller, he said, failed to follow the court's execution-day 
procedures, which required "all communications" about a pending 
execution be referred to Judge Cheryl Johnson, who was assigned to 
handle any late appeal from Richard.

Knowing she was not the assigned judge, Keller still chose to address 
and dispose of a request from Richard's legal team for more time, 
McKetta said.

"She circumvented procedures" that are an important safeguard against 
the misapplication of capital punishment, he added.

"The death penalty can be accepted in a civilization only when people 
can have confidence that it be so carefully administered that it 
precludes premature or erroneous executions," McKetta said. 
"Executions cannot be undone."

Babcock said the charges against Keller assume that "we live in a 
black and white world. I think our society, and what happened here, 
is a little more nuanced than that."

By saying the court clerk's office closes at 5 p.m. — a time set by 
state law — Keller did not stop lawyers with the Texas Defender 
Service from filing any appeals, Babcock said.

Those lawyers failed to remember, or did not know, that appellate 
rules allow the court's general counsel or any of its nine judges to 
accept pleadings, he said.

"Judge Keller didn't close the court to anyone. Mr. Richard's lawyer 
never knocked on the right doors, and they gave up," Babcock said.

On the day of Richard's execution, the U.S. Supreme Court said about 
9 a.m. that it would examine the legality of lethal injections. Even 
so, Babcock said, TDS lawyers didn't begin writing briefs until 
shortly after noon. By then, 40 percent of the time until 5 p.m. had 
evaporated, he said.

TDS also assigned the task of drafting four briefs to a first-year 
lawyer, Alma Lagarda, and offered her no supervision until TDS 
litigation director David Dow arrived in the Houston office about 
2:45 p.m., Babcock said.

Babcock's harshest criticism was reserved for "lies" told by TDS 
lawyers that, he said, produced a flurry of negative publicity and 
scathing media accounts.

Prosecutors used those news stories to allege that Keller brought 
discredit on the judiciary.

There were no computer problems that delayed the creation of 
Richard's legal briefs, Babcock said.

The often-told claim that the court would not stay open for only 20 
minutes is refuted by the Texas Defender Service's own admission that 
the briefs weren't completed until almost 6 p.m., he added.

"This is a tactic of TDS — to attack the Court of Criminal Appeals," 
Babcock said. TDS lawyers rebutted many of Babcock's claims, 
sometimes angrily, in testimony this week.

McKetta urged Berchelmann to look past many of Babcock's claims, 
noting that they had nothing to do with the charges against Keller's 
conduct.

Keller, he noted, made her decision to close the court without 
knowing that TDS had claimed computer delays, had made legal choices 
that would be questioned later or would criticize her about the 
Richard case in the months to follow.

"She blames TDS solely and in its entirety — that the only reason for 
criticism around the world was TDS, TDS, TDS, instead of 
acknowledging that her noncompliance with the execution-day 
procedures must have accountability," McKetta said.

Berchelmann has no time limit to make the findings beyond a state 
rule that says he must act promptly.

clindell@statesman.com; 912-2569

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