Sunday, June 13, 2010


"These are troubled and uncertain times for the Presiding Judge of Texas' highest criminal court, not to mention a heady public moment for the normally sleepy Commission on Judicial Conduct."

GRITS FOR BREAKFAST; 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.");


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:


"While my focus remains elsewhere for the moment, I can't help but anticipate next Friday's June 18 hearing at the State Commission on Judicial Conduct, which will hear oral arguments in Texas Court of Criminal Appeals Presiding Judge Sharon Keller's removal proceedings," the Grits For Breakfast Post begins under the heading, "David Dow warned, Sharon Keller on the dock"

"I've consistently kept the date clear and plan to show up early for the queue to get a good seat. Mary Alice Robbins at Texas Lawyer has an excellent preview of the case, and Jordan Smith of the Austin Chronicle has an early writeup,"
the post continues.

"Judge David Berchelmann in his findings of fact thought that appellate attorney David Dow's culpability subsumed Judge Keller's, while the Special Master says Berchelmann used the wrong standard of review, weighing comparative blame as though this were a civil dispute between Keller and Dow instead of evaluating Judge Keller's actions on their own merits. (Notably, the forensic psychologist in Richard's case was later found to have inflated IQ scores in death penalty cases on behalf of prosecutors, so if his appeal had been allowed there is a decent chance Richard had a legitimate claim.)

Relatedly, the Court of Criminal Appeals let David Dow - Judge Keller's declared nemesis in the Richards imbroglio - off with a warning for missing a court-imposed appeals deadline, albeit in a different case than the one causing Judge Keller all the trouble. AP reports he was "threatened with sanctions Wednesday if he files any more late appeals for death row inmates."

And on top of it all, there's still an outside chance criminal charges may be filed against Judge Keller over misstatements in her financial disclosures that earned the judge a record $100,000 fine from the Ethics Commission, though if he'd planned to do so Travis County Attorney David Escamilla has had the Ethics Commission ruling alleging misdemeanors for some time now. Those possible charges are unrelated to the allegations before the Commission on Judicial Conduct, except that the reporting lapses were discovered after Keller asked a court to pay for her lawyers while failing to disclose millions in income and assets.

These are troubled and uncertain times for the Presiding Judge of Texas' highest criminal court, not to mention a heady public moment for the normally sleepy Commission on Judicial Conduct."

The post can be found at: