Texas Court of Criminal Appeals judge's actions called into question


Saturday, March 7, 2009

By STEVE McGONIGLE / The Dallas Morning News
smcgonigle@dallasnews.com

Just weeks before the presiding judge of the Texas Court of Criminal 
Appeals was charged with "willful and persistent conduct" that 
discredited the judiciary, she was involved in a second incident in 
which lawyers for a condemned man were initially blocked from filing 
a last-minute appeal.

Judge Sharon Keller, a former Dallas prosecutor, was called shortly 
after the court's general counsel and a clerk refused to formally 
accept legal filings requesting a halt to the execution of Larry 
Swearingen, a well-placed source told The Dallas Morning News. 
Keller's attorney confirmed she was alerted but said it was after the 
incident was resolved.
The January incident was reminiscent of the September 2007 case in 
which Michael Richard was executed after the court, allegedly on 
Keller's orders, refused to stay open past business hours to accept 
his attorneys' appeals.

Amid the nationwide controversy that erupted over Richard's 
execution, the state's highest criminal appeals court formalized its 
rules of procedure for executions. The written procedures said the 
duty judge should be notified of any filings and work closely with 
the general counsel "to reasonably accommodate" defense lawyers, 
especially if they notified the clerk's office that they were at risk 
of missing the deadline.

The Swearingen incident showed that problems remained.

Swearingen's lawyers arrived at the clerk's office at 5:01 p.m. on 
Friday, Jan. 23, after calling to say that copying problems were 
causing unexpected delays. Once inside, they were told their filings 
would not be entered into the court record until the office reopened 
Monday morning. That delay could have shortened the court's timeframe 
for evaluating the appeal and subjected defense counsel to sanctions 
for failing to meet a 48-hour deadline for filing petitions in 
execution cases.

Their pleadings were accepted only after another judge on the court, 
Cheryl Johnson, intervened and ordered the chief clerk to return to 
the courthouse, several people involved in the matter said.

Although there is some dispute over what role Keller may have played 
in the latest case, she has long been a lightning rod for opponents 
of the death penalty, who contend she routinely favors the state's 
position in capital cases. After the Richard execution, even some of 
her fellow judges were publicly outraged.

One of them, Johnson, had been the duty judge for Richard but had not 
been notified of the filing problems in that case. She intervened in 
the Swearingen case after his lawyers called her for help.

She later reported the incident to the state Commission on Judicial 
Conduct, the source said, on condition of anonymity. The commission 
interviewed the court's general counsel about Swearingen, the source 
added.

Judge Mike Keasler said he, too, heard the commission had interviewed 
the general counsel, although he was not sure why.

The executive director of the judicial conduct commission, Seana 
Willing, said she could not confirm or deny knowledge of the 
Swearingen incident. She said she also could not discuss whether a 
complaint had been filed or anyone had been questioned.

Johnson declined to discuss the matter.

"Given all that's pending right now, I really don't want to comment," 
she told The News. "Richard was not pending, and Swearingen is still 
pending. I'm going to leave it at that."

Unlike Richard, Swearingen was not executed. A federal appeals court 
stayed his execution the day before he was to die to give his lawyers 
more time to pursue their case.

Concerns about how Swearingen played out, including why the judge 
assigned to the case was not notified, have prompted court members 
again to try to clarify their procedures, Keasler said.

"We need to get things as clear and as understandable so that 
everybody knows about it as much as possible," he said.

Sian Schilhab, the court's general counsel, downplayed the Swearingen 
incident and characterized it as a misunderstanding caused by the 
defense team's confusion. The filing was ultimately accepted without 
harm to Swearingen or his attorneys, she said.

Schilhab, who became general counsel last August after her 
predecessor retired under pressure because of his role in the Richard 
case, refused to say whether she had called Keller or whether she had 
been questioned by the commission.

"I feel like that's internal court procedures and it's privileged 
information. I feel like I would be violating my own ethics if I said 
anything," she told The News.

The commission has spent more than a year investigating complaints 
against Keller for allegedly ordering the court's staff to reject a 
last-minute filing by attorneys for Richard, a convicted murderer 
from the Houston area.

On Feb. 19, the commission charged Keller with "willful and 
persistent conduct that casts public discredit on the judiciary." It 
ordered a public hearing, which could produce a recommendation that 
Keller be removed from office.

Keller, who has been on the Austin court since 1995 and presiding 
judge for the past eight years, has insisted she did nothing improper 
in the Richard case. Her attorney, Chip Babcock, has said she intends 
to fight the charges and will not resign.

Babcock confirmed that Keller was called about the filing dispute in 
the Swearingen case, but he said he believed the conversation 
occurred a day or two later and was "just informational."

"She was otherwise not involved at all in this incident," he said.

Babcock said he knew a staff member had been questioned by the 
judicial conduct commission, but he did not know who or why. He said 
he did not know whether Johnson had spoken to the commission about 
Swearingen.

While the extent of Keller's involvement in the Swearingen case is 
unclear, Schilhab acknowledged that the duty judge was not contacted. 
She said there was nothing to discuss with him.

Schilhab insisted that no judge was called before she and the clerk 
told Swearingen's attorneys that their appeal had arrived too late to 
be file stamped within the 48-hour deadline.

"They could have filed it Monday morning," Schilhab said. "They would 
have just had to file an extra little piece of paper with it. No big 
deal."

Swearingen was sentenced to die for the 1998 murder of a 19-year-old 
college student. His lawyers had filed several unsuccessful appeals 
to the Court of Criminal Appeals seeking to reverse his conviction 
and spare his life.

His latest appeal claims that newly discovered autopsy evidence 
proves the victim was murdered close to the time her body was found 
in the Sam Houston National Forest – long after Swearingen was jailed 
on unrelated traffic offenses.

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