Texas Court of Criminal Appeals judge deserves sanction


At best, the events of Sept. 25, 2007, at the Texas Court of Criminal 
Appeals were a series of miscommunications that unintentionally — but 
most certainly — thwarted usual procedures for last-minute appeals in 
a death penalty case involving an imminent execution.

At worst, there was deliberate indifference to protocol and to fair 
legal process.

At the very least, the episode cast aspersions on the Texas judiciary 
and Texas criminal justice.

The hearing on ethics charges against Court of Criminal Appeals 
Presiding Judge Sharon Keller, scheduled to start Monday in San 
Antonio, can be valuable if it provides a cleansing light on the 
court and its operations.

Though it’s the state’s highest tribunal for criminal appeals, the 
court generally escapes much public scrutiny.

It operates in the shadow of the Texas Supreme Court, which hears 
only civil cases.

Its judges run statewide for office, but they attract little 
attention and less money for their races: Those directly affected by 
their decisions most often are prisoners, their families or crime 
victims, few of whom have means to invest in judicial politics.

But the court has a knack for drawing unwanted attention to itself, 
usually for unwarranted actions in death penalty cases — like Michael 
Richard’s.

A synopsis of the case paints an unsympathetic picture. Richard was 
sentenced to death for sexually assaulting Marguerite Dixon and 
shooting her in the head after stealing TVs from her Hockley home in 
1986. He unsuccessfully appealed several times, including on a claim 
of mental retardation.

But due process is guaranteed to all criminal defendants, not just 
those who are sympathetic.

When the U.S. Supreme Court on Sept. 25, 2007, said it would review 
the constitutionality of lethal injection in a Kentucky case, 
Richard’s lawyers tried to stop his execution that night by 
challenging Texas’ three-drug cocktail.

They weren’t able to because e-mail problems held them up, and Keller 
didn’t let the clerk’s office stay open late.

Filings in the State Commission on Judicial Conduct’s case against 
Keller depict a scenario in which crucial information wasn’t shared 
with everyone who needed it. The court’s execution-day procedures 
weren’t written down (until two months later). Judge Cheryl Johnson 
was responsible for last-minute filings in Richard’s case, but the 
court’s general counsel called Keller at home about keeping the 
clerk’s office open. He didn’t tell Johnson about the call; Keller 
didn’t direct him to her. A deputy clerk told Richard’s lawyers not 
to bother filing late but didn’t tell Johnson about that. The lawyers 
didn’t contact her.

Incredibly, when the court talked about the events the next day, 
Keller didn’t tell her fellow judges about her conversation regarding 
the clerk’s office and a possible late filing.

The commission has accused Keller of "incompetence" in performing her 
duties and of "willful or persistent conduct that casts public 
discredit on the judiciary."

A sanction’s in order. And voters should keep it in mind if Keller 
runs again in 2012.

All that was needed was better communication and a little flexibility.

If Keller’s court didn’t want to stay Richard’s execution, it could 
have taken a late petition, said "no" and left the final word for the 
U.S. Supreme Court.

The justices stayed other executions but ultimately found the three-
drug method was constitutional.

Better leadership could have avoided this black eye.

http://www.star-telegram.com/news/editorial/story/1530511.html