"Keller argues in her response that the commission's examiner "plays fast and loose with the record" by arguing in her objections that one of Keller's duties was the performance of the CCA's mandatory execution-day protocol. On Sept. 25, 2007, the CCA had an "oral tradition" that communications from outside the court on execution days were expected to be directed to the judge assigned to the case, but there were no court rules governing execution procedures, Keller contends in the response. [See Keller's response: Part 1 and Part 2.]
In the examiner's objection, Willing and McKetta argue that Keller knew and had known for years the details of the execution-day procedures."
MARY ALICE ROBBINS: TEXAS LAWYER;
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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:
http://en.wikipedia.org/wiki/Sharon_Keller
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"The latest shot has been fired in an ongoing battle between Court of Criminal Appeals Presiding Judge Sharon Keller and the State Commission on Judicial Conduct examiner regarding events on the day Texas executed convicted murderer Michael Richard," the Texas Lawyer article by Mary Alice Robbins published on June 8, 2010, begins under the heading, "CCA Presiding Judge Sharon Keller Urges State Commission on Judicial Conduct to Dismiss Charges Against Her."
"In a response filed June 4, Keller urges the judicial conduct commission to dismiss immediately all the charges against her," the article continues.
"She argues the allegations are "based on a fiction" that she alleges David Dow, litigation director for the Texas Defender Service, which represented Richard, created to blame Keller for TDS' failure to file documents to stop Richard's execution.
Keller made her arguments in her June 4 response to the objections the judicial conduct commission examiner filed in February to the findings of the special master appointed to hear the allegations against Keller. [See the objections.]
San Antonio's 37th District Judge David Berchelmann Jr., the special master in In Re Sharon Keller, considered the allegations against Keller in an August 2009 hearing and concluded in January that Keller should not be removed from office or reprimanded for what happened in the Richard case. [See the special master's findings.]
The judicial conduct commission's executive director and examiner, Seana Willing, and the commission's special counsel John J. "Mike" McKetta, a shareholder in Austin's Graves Dougherty Hearon & Moody, argue in their objections that Berchelmann's findings are irrelevant and erroneous. They contend that Berchelmann improperly turned the hearing on Keller's conduct into something resembling a tort case or other similar proceeding in which comparative responsibility or fault is an issue.
The judicial conduct commission will consider both sides' objections in In Re Sharon Keller at a June 18 hearing in Austin.
In her response, Keller argues that the special master correctly found that she did not break any rule, law or canon of conduct. Keller also argues that "this proceeding continues to taint her name and drain her resources," despite the fact that the special master found she violated no laws or rules. She urges the commission to adopt the special master's findings of fact.
Keller argues in her response that the commission's examiner "plays fast and loose with the record" by arguing in her objections that one of Keller's duties was the performance of the CCA's mandatory execution-day protocol. On Sept. 25, 2007, the CCA had an "oral tradition" that communications from outside the court on execution days were expected to be directed to the judge assigned to the case, but there were no court rules governing execution procedures, Keller contends in the response. [See Keller's response: Part 1 and Part 2.]
In the examiner's objection, Willing and McKetta argue that Keller knew and had known for years the details of the execution-day procedures.
The state executed Richard on Sept. 25, 2007. Richard died by lethal injection after Texas Defender Service (TDS), which represented Richard, did not file a motion for stay and an application for writ of prohibition on his behalf in the CCA. On the morning of Richard's execution day, the U.S. Supreme Court had agreed to consider whether the combination of chemicals used in lethal injections constitute cruel and unusual punishment — an issue that Richard's attorneys were trying to address. However, Richard's attorneys did not file Richard's pleadings in the CCA prior to 5 p.m.
According to Berchelmann's findings, a TDS paralegal called the CCA clerk's office at 4:40 p.m. on Sept 25, 2007, to say that Richard's lawyers would not be ready to file his pleading by 5 p.m. The deputy clerk, Abel Acosta, said he needed to check with someone to find out if it would be possible for TDS to file something in the clerk's office after 5 p.m. Acosta called then-CCA general counsel Ed Marty, who called Keller at home. There is a dispute among the parties about what words Keller used; Berchelmann writes that the gist is that Keller told Marty that the TDS would not be able to formally file any documents after 5 p.m. Keller and Marty have asserted, Berchelmann writes, that Keller was referring to whether the clerk's office, not the court as a whole, could stay open past 5 p.m., to which she twice replied "no." The examiner contends that Keller, in essence, was saying that the court, as opposed to the clerk's office, would close at 5 p.m.
In February 2009, the judicial conduct commission initiated formal proceedings against Keller, alleging in five charges that she:
* failed to follow the CCA's execution day procedures, constituting willful or persistent conduct clearly inconsistent with the proper performance of her duties as presiding judge;
* failed to follow the CCA's execution day procedures, constituting willful or persistent conduct that casts public discredit on the judiciary or the administration of justice;
* did not accord Richard access to open courts or the right to be heard according to law, constituting willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge;
* did not accord Richard access to open courts or the right to be heard according to law, constituting willful or persistent conduct that casts public discredit on the judiciary or the administration of justice; and
* willfully and persistently failed to follow the CCA's execution-day procedures, which constitutes incompetence in the performance of duties of office. [See "Formal Proceedings Initiated Against Sharon Keller," Texas Lawyer, Feb. 23, 2009, page 1.]
Berchelmann found that TDS also was to blame for what happened in Richard's case. In his findings of fact, Berchelmann wrote that "TDS bears the bulk of fault for what occurred on Sept. 25, 2007."
Willing and McKetta III argue in their February objections that the special master "addressed the unrelated and irrelevant question" of whether Keller's conduct or the conduct of TDS caused the ultimate failure by TDS to obtain a stay of execution for Richard.
"The issue here is not TDS's conduct, but Judge Keller's conduct," Willing and McKetta wrote in their objections.
Keller argues that the examiner's case was based on "a fictional narrative manufactured by TDS's litigation director, David Dow" regarding computer problems that TDS claimed to have had on the day Richard was executed, Keller's alleged refusal three times to keep the court open, TDS' readiness to file its petition at 5:30 p.m., the petition's length and Keller allegedly consigning Richard to death.
Berchelmann also found that while Keller's conduct was "not exemplary for a public servant," she did not shut off Richard's access to the CCA.
Dow, a professor at the University of Houston Law Center, and Andrea Keilen, the TDS executive director, did not immediately return a telephone call to each of their offices for comment.
In a Jan. 20 written statement, TDS stated, "TDS made a reasonable inquiry through reasonable channels to ask the Court to accept a filing on the day of an execution on an issue that had no merit until that same morning. Judge Keller knew exactly what was being asked of her. She responded with an unequivocal 'no' and closed the courthouse doors."
Willing declines comment on Keller's response, which Willing says has not been served on her and that she has not read. McKetta did not immediately return a telephone call for comment.
Keller declines comment and refers questions to her attorney, Charles "Chip" Babcock, a partner in Jackson Walker in Dallas and Houston. Babcock says, "I think our view is once the special master made his findings of fact and conclusions that the case should not have proceeded any further than that."
But since the proceeding is continuing, "We're going to mount a vigorous defense for Judge Keller," Babcock says."
The article can be found at:
http://webcache.googleusercontent.com/search?q=cache:GCcKdLEkxEwJ:www.law.com/jsp/tx/PubArticleTX.jsp%3Fid%3D1202461571410+robbins+texas+lawyer+keller&cd=2&hl=en&ct=clnk&gl=ca&client=firefox-a
Harold Levy...hlevy15@gmail.com;
