Friday, June 18, 2010


"The commission can drop the charges, issue a public reprimand or recommend that Keller be removed as the presiding judge of the Court of Criminal Appeals. That recommendation would be considered by a specially created panel of seven appellate court judges. Commissioners also could send questions back to the special master — District Judge David Berchelmann Jr. of San Antonio — but none of the commissioners’ questions indicated that will be needed."

REPORTER CHUCK LINDELL; THE STATESMAN; Wikipedia informs us that, "The Austin American-Statesman is the major daily newspaper for Austin, the capital city of Texas."


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 State Commission on Judicial Conduct hearing on Judge Sharon Keller ended a little after 2 p.m., and the 12 commissioners have begun deliberations," reporter Chuck Lindell's Statesman story, published earlier today under the heading, "Keller hearing ends; deliberations begin," begins.

"Because today ends their three-day meeting, most observers expect the commissioners to decide the case today but announce their decision with a written order sometime in the future,"
the story continues.

"The commission can drop the charges, issue a public reprimand or recommend that Keller be removed as the presiding judge of the Court of Criminal Appeals. That recommendation would be considered by a specially created panel of seven appellate court judges.

Commissioners also could send questions back to the special master — District Judge David Berchelmann Jr. of San Antonio — but none of the commissioners’ questions indicated that will be needed.

I’ll post a lot of the arguments later tonight or this weekend. Meanwhile, deadline for the print edition beckons. We’ll also post that story online later tonight."

The story can be found at:


GRITS FOR BREAKFAST REPORT ON TODAY'S HEARINGS: (GRITS FOR BREAKFAST; (Grits for Breakfast is described as "the private weblog and nom de plume of Scott Henson, a former journalist turned opposition researcher/political consultant, public policy researcher and blogger." Henson says, "Grits for Breakfast looks at the Texas criminal justice system, with a little politics and whatever else suits the author's fancy thrown in. All opinions are my own. The facts belong to everybody." Its motto is: "Welcome to Texas justice: You might beat the rap, but you won't beat the ride.");

Friday, June 18, 2010
Oral arguments in Sharon Keller removal proceedings this morning
I'm headed up to the State Commission on Judicial Conduct this morning to hear oral arguments in Texas Court of Criminal Appeals Presiding Judge Sharon Keller's removal proceedings. Go here for all the filings in the case. See also AP's preview that's in several papers around the state this morning.

UPDATE: Back from the event, which lasted a little more than five hours en toto. I was somewhat surprised there wasn't a bigger crowd there. The room was perhaps a little more than 2/3 full at its height and any protesters remained outside. Media coverage was also lighter than I'd expected. The usual suspects among reporters were there, but just four TV cameras and no noticeable national news presence. The Commission will likely take a vote today, but the results won't be released publicly until sometime in the future. Keller, for her part, wore an emotionless mask throughout the hearing.

Keller's attorney Chip Babcock spent the majority of his time (80% by one commissioner's estimate) criticizing the Texas Defender Service and particularly attorney David Dow for mendacity and seeking to railroad Judge Keller out of office. He also criticized the Texas Civil Rights Project for relying on inaccurate media reports in drafting its complaint to the SCJC. These charges had taken an "almost unspeakable toll" on Keller "personally, professionally, and financially," he said, adding that all the allegations against her are a "pack of lies." The entire proceeding, he opined, was a "calculated strategy by some people to take a popularly elected judge and drive her from the bench." He also emphasized that Special Master David Berchelmann found Keller had violated no "unwritten rule," distinguishing such (as did the fact finder) from an unwritten, longstanding protocol at the CCA that Judge Keller said in a deposition she knew about and was considered mandatory.

Examiner Mike McKetta, by contrast, portrayed following that "mandatory protocol" as a "judicial duty" whose violation breached judicial canons. He observed that Judge Berchelmann, the fact finder, failed to issue findings on most of the questions about which the examiner asked him to rule, so McKetta asked the Commission to make those findings in his stead. Cleverly, in a power point presentation he proved up the main elements of the alleged offenses almost entirely from Judge Keller's own testimony - her admissions about what she knew and when she knew it, etc. - arguing she engaged in "gross carelessness." He also emphasized the Judge's defiant insistence that she'd do again today what she did back in 2007. Keller, he said, "persists in the belief that mandatory rules are not applicable to her." TDS' role is irrelevant, McKetta argued, since Judge Keller at the time she made the decision in Richard's case didn't know who was the defendant or who represented him. In perhaps the strongest statement in his presentation, McKetta said this is "not the right person or attitude" for the Presiding Judge on the state's highest criminal court.

Both attorneys were on their A games, but Babcock suffered in a couple of key moments from what they call "bad facts," particularly when he claimed Keller didn't really mean she would do the same thing again, that she isn't a "recidivist," but Justice Jan Patterson read back to him Keller's exact words from the testimony transcript to show he'd mischaracterized the Q&A and the examiner's interpretation was accurate.

Even so, it's exceedingly difficult to handicap results based on reactions from commissioners. I honestly can't begin to guess how they'll rule. One of the public, non-attorney members observed that there seemed to be a "shocking amount of dysfunction in the court," and a couple of others posed harsh questions - particularly a judge on the panel who called Babcock on the carpet for over-the-top comparisons in recent briefs of commission proceedings against Keller to Soviet show trials. Two other commissioners, though, seemed eager to cast aspersions on TDS and David Dow, and one of Judge Berchelmann's colleagues from San Antonio wondered if Keller's behavior must be overtly malicious to be "willful." Even so, trying to interpret such questions to predict votes amounts to little more than tea leaf reading. I'd guess it won't be a unanimous vote, but I'm hard-pressed to say which way they'll go. And even if a majority of commissioners do hold against her, then the question becomes: What is the sanction?

The Grits For Breakfast post - containing a link to the Examiner's power point presentation - can be found at: