Monday, June 21, 2010


"During an exchange with judicial conduct commissioner Tom Cunningham, a Houston attorney, Babcock said he did not believe the commission had given Keller a fair hearing. To which Cunningham responded, "Isn't it ironic that's what Mr. Richard was asking?"



BACKGROUND: Justice Sharon Keller has attained notoriety for allegations that she allowed convicted murderer and rapist Michael Richard to be executed on September 25, 2007 - notwithstanding his attempt to file a stay of execution - because the court clerk's office closes at 5. Keller is of particular interest blog because of the opinion she wrote for the majority in the Roy Criner case. Wikipedia informs us that: "Sharon Faye Keller (born in Dallas, Texas, 1953) is the Presiding Judge of the Texas Court of Criminal Appeals, which is the highest court for all criminal matters in the State of Texas. Because of her position, she has been involved in many high-profile and controversial cases, and has thus received widespread news coverage......In 1998, Keller she wrote the majority opinion in a 5-3 (one judge abstaining) decision that denied a new trial to Roy Criner. Criner had been convicted of sexual assault in 1990, but newly-available DNA testing had shown that the semen found in the victim was not his......Judge Tom Price, who ran for the Chief Judge seat, in a primary election, said that Keller's Criner opinion had made the court a "national laughingstock." Judge Mansfield, who had sided with the majority in denying Criner a hearing, told the Chicago Tribune that, after watching the Frontline documentary, reviewing briefs and considering the case at some length, he voted "the wrong way" and would change his vote if he could. "Judges, like anyone else, can make mistakes ... I hope I get a chance to fix it." He stated that he hoped Criner's lawyers filed a new appeal as he felt Criner deserved a get a new trial......Following the (appeal court's) refusal to order a new trial, the cigarette butt found at the scene (and not adduced at trial) was subjected to DNA testing.The DNA on the cigarette was not a match for Criner, but it was a match for the semen found in Ogg. Ogg's DNA was also found on the cigarette, indicating that she shared a cigarette with the person who had sex with her (and who presumably killed her). These results convinced the district attorney, local sheriff and the trial judge that Criner was not guilty. The Texas Board of Pardons and Paroles recommended he be pardoned and, citing "credible new evidence [that] raises substantial doubt about [Criner's] guilt," then-Governor George W. Bush pardoned him in 2000.

The thorough, unabridged Wikipedia article on Keller can be found at:


"The attorney defending Texas Court of Criminal Appeals Presiding Judge Sharon Keller against misconduct charges that could result in her removal from office on Friday accused the State Commission on Judicial Conduct of doing a poor job of investigating complaints against Keller in connection with a death-row inmate's case,"
the post by mary Alice Robbins, published in Texas Lawyer earlier today, begins, under the heading, "Sharon Keller Case in Hands of Judicial Conduct Commission," and the sub-heading, "Commission's special counsel tells commission that Texas' top criminal court's presiding judge violated long-standing execution-day protocols."

""I think the commission has failed in every step of the way in this," Charles "Chip" Babcock, a partner in Jackson Walker in Dallas and Houston, said during an approximately five-hour hearing before the 13-member commission,"
the post continues.

"Babcock made his comments as the commission heard objections to the findings of a judge who served as special master in In Re: Sharon Keller. Judge David Berchelmann Jr., of San Antonio's 37th District Court, who heard testimony in the case during a four-day hearing in August 2009, recommended in findings submitted to the commission in January that Keller not be removed from the bench or reprimanded.

During Friday's hearing, Babcock urged the commission to follow Berchelmann's recommendations and dismiss the charges against Keller, whom he alleges has been the victim of a "pack of lies" that the Texas Defender Service told about what happened on Sept. 25, 2007, the day the state executed Michael Richard. But John J. "Mike" McKetta, the commission's special counsel in Keller, told commission members that Keller, as presiding judge of the state's top criminal court, is the "public face of the criminal justice system in the state of Texas."

McKetta, a shareholder in Austin's Graves Dougherty Hearon & Moody, said Keller violated the CCA's long-standing execution-day protocols when she did not refer communications about an imminent execution to CCA Judge Cheryl Johnson, who was assigned to handle that case. "She has violated a mandatory protocol, a duty of her office in one of the most time-sensitive and irreversible circumstances there can be, moments before a scheduled execution," McKetta said of Keller.

Babcock argued that the CCA did not have a written execution-day protocol that was mandatory on Richard's execution day. Instead, the court had an "oral tradition," he said. However, McKetta said Keller had testified that the oral procedures were the same as the written protocol the CCA adopted about two months after Richard's execution. Keller also testified that she knew the protocol was mandatory, McKetta said.

In February 2009, the judicial conduct commission opened formal proceedings against Keller in connection with events that occurred shortly before the state executed Richard for the 1986 rape and murder of Marguerite Dixon in her Hockley home. On the morning Richard was scheduled to die, the U.S. Supreme Court had granted a petition for writ of certiorari in a Kentucky case to consider whether the use of the chemicals in lethal injections administered in Kentucky constituted cruel and unusual punishment. TDS attorneys who represented Richard were trying to file a motion for stay of execution and an application for writ of prohibition raising the lethal injection issue. However, they did not file the documents with the CCA, because when asked whether the clerk's office would remain open to receive a late filing, Keller twice said "no."

At Friday's hearing, Babcock criticized the judicial conduct commission for basing its charges on "lies" that he alleged David Dow, the TDS litigation director and a professor at the University of Houston Law Center, told the news media regarding TDS' efforts to file documents on behalf of Richard on his execution day. Babcock alleged that TDS concocted a story that they had multiple computer crashes on that day as they were trying to get the documents to the CCA, that attorneys had called the court and pleaded with Keller to keep the clerk's office open but that she refused three times. The evidence shows TDS did not have computer problems that day, that no TDS attorney called the CCA and that Keller did not speak to anyone from TDS, he said.

Dow and Andrea Keilen, executive director of TDS, each did not return telephone calls seeking comment.

During an exchange with judicial conduct commissioner Tom Cunningham, a Houston attorney, Babcock said he did not believe the commission had given Keller a fair hearing. To which Cunningham responded, "Isn't it ironic that's what Mr. Richard was asking?" After hearing the arguments, the commission retired to begin deliberations. Seana Willing, the commission's executive director and the examiner in Keller, says the commission's options are to dismiss the charges, censure Keller or recommend to the Texas Supreme Court that she be removed from office."

The post can be found at: