Thursday, June 17, 2010


"After the hearing ends, commissioners may meet in private to consider their options — dismiss the charges, reprimand Keller or recommend she be removed from office. They can also return the case to Berchelmann for additional fact finding."

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 Statesman guide to the nitty gritty of judicial impropriety investigations was published under the heading, "Case against Judge Keller reaches new phase this week: Allegations about how she handled killer's last appeal reach conduct panel, with more steps to come."

"The case against Judge Sharon Keller, accused of improperly closing the state's highest criminal court to a death row appeal, resumes Friday with a hearing before the State Commission on Judicial Conduct,"
the guide begins.

"The Austin hearing is part four of a five-part process used to investigate judges accused of impropriety in office, and it will be Keller's last chance to rebut charges that could jeopardize her career as a judge:

• Step 1 began in February 2009, when the commission filed charges accusing Keller of violating her duty as a judge by refusing to keep the Court of Criminal Appeals open past 5 p.m. so lawyers for a death row inmate could file an execution-day appeal.

• Step 2 was a four-day August 2009 trial in San Antonio, with prosecutors and defense lawyers conducting pretrial discovery, calling witnesses and making arguments to a special master appointed by the Texas Supreme Court.

• Step 3 came in January, when that special master — District Court Judge David Berchelmann Jr. — issued his findings.

• Step 4 will be Friday's hearing, allowing prosecution and defense lawyers to raise objections to Berchelmann's findings.

• Step 5 will come at an as yet unspecified date, when the commission releases its decision on Keller's fate.

This is a rarely used process (the commission conducts most judicial investigations in private), so let's step back and provide some answers:

What happens Friday?

Prosecutors, known as examiners, will tell the commission that Keller deserves to be reprimanded or removed from office for refusing to accept a late appeal for inmate Michael Richard in 2007. Richard was executed later that night.

Keller's lawyer, Chip Babcock, will argue that charges should be dropped because the judge did nothing wrong.

Each side will have one hour, with examiners going first. Commissioners can ask questions after each presentation.

Twelve of the agency's 13 commissioners will participate. Dallas Justice of the Peace Steven Seider, recused himself.

What did the special master conclude?

Berchelmann advised the commission to drop its charges against Keller because:

• She did not violate any court rule or state law by refusing to keep the court open past 5 p.m.

• She was not to blame for failures in Richard's case. Instead, Berchelmann said, Richard's lawyers with the nonprofit Texas Defender Service caused "the majority of problems" by failing to diligently prepare his final appeal or pursue other available options to file it after 5 p.m.

What do the prosecutors object to?

In documents filed with the commission, prosecutors argued that Berchelmann improperly portioned out blame as if he were presiding over a negligence lawsuit instead of judicial misconduct charges.

"Judge Keller's conduct on Sept. 25, 2007, should be examined based on what she knew, heard, thought, said, did, decided and failed to do," wrote Mike McKetta, an Austin lawyer acting as lead examiner.

McKetta also argued that Keller violated the court's execution-day procedures — which were unwritten at the time but known to every judge — when Richard's legal team telephoned the court for permission to file briefs past 5 p.m. Instead of unilaterally denying the request, Keller was required to refer all such calls to Judge Cheryl Johnson, who was assigned to handle any last-minute action in Richard's case, McKetta said.

What are Keller's objections?

While he was hardest on Richard's lawyers, Berchelmann said Keller displayed poor judgment in enforcing a strict 5 p.m. closing time on the night of an execution and for failing to refer the request for more time to Johnson, the duty judge.

Babcock urged the commission to disregard Berchelmann's criticisms as irrelevant. "The special master explicitly found, based on a thorough and careful review of the evidence, that Judge Keller 'did not violate any written or unwritten rules or laws,'\u2009" Babcock wrote in his objections. "The special master's findings of fact plainly absolve Judge Keller of all of the charges leveled against her."

What will commissioners do?

After the hearing ends, commissioners may meet in private to consider their options — dismiss the charges, reprimand Keller or recommend she be removed from office. They can also return the case to Berchelmann for additional fact finding.

Commissioners have no time limit for their decision. It is unlikely they will announce a decision that day.

If charges are dropped, the case against Keller would end. A reprimand could be appealed under a law passed in the most recent legislative session, but that process has yet to be created by the Texas Supreme Court.

What if the commission votes to remove Keller?

A new process begins — sort of a Step 6. A "review tribunal" of seven state appellate court judges would be chosen in a random drawing. The tribunal would review the record from Berchelmann's trial, accept briefs and schedule oral arguments.

The tribunal could decide, by a majority vote, to dismiss the charges, issue a reprimand or order the judge removed from office. A removal order also can include a lifetime ban on serving as a judge in Texas.

What is the commission?

The Commission on Judicial Conduct is an independent state agency that investigates and disciplines Texas judges for misconduct in office.

Its 13 commissioners — six judges appointed by the Texas Supreme Court, five citizens named by the governor and two lawyers chosen by the State Bar of Texas — serve six-year terms.

A full-time staff of 14, including three investigators, is led by Executive Director Seana Willing, a lawyer who also is acting as an examiner prosecuting Keller.

Any changes at the commission?

Yes. Four commissioners were not on board in June 2008, when Keller testified before the agency in private, or when commissioners voted to in December 2008 to file formal charges against the judge.

The new arrivals are public member Patti Johnson of Canyon Lake; College Station Municipal Court Judge Edward Spillane III; Smith County Court Judge Joel Baker; and Seider, the Dallas justice of the peace who recused himself from the Keller case.

What started Keller's legal trouble?

On Sept. 25, 2007 — the night Richard was to be executed — his lawyers called the Court of Criminal Appeals about 4:40 p.m. to ask the court to remain open past 5 p.m.

Then-general counsel Ed Marty, the court's internal lawyer, called Keller at her home to relay the request. Keller and Marty dispute what was said but agree the judge twice refused the request.

Why did Richard's lawyers request more time?

The Texas Defender Service says late-afternoon e-mail problems hampered work on Richard's briefs and delayed Houston lawyers David Dow and Alma Lagarda from sending documents to the organization's Austin office.

Why the last-minute appeal, 20 years after Richard's conviction?

On the morning of Richard's scheduled execution, the U.S. Supreme Court accepted a case that challenged lethal injection as cruel and unusual punishment. Figuring (correctly) that executions would halt until the court ruled, Richard's lawyers began drafting petitions to delay his punishment.

What was Richard's crime?

In August 1986 — two months after he was paroled for burglary and auto theft — Richard raped and shot Marguerite Dixon. He stole two televisions and a van from Dixon's Hockley home and later confessed.

Public hearing

The State Commission on Judicial Conduct's hearing on Judge Sharon Keller will be at 9 a.m. Friday in Room 140 of the Reagan State Office Building, 105 W. 15th St."

The guide can be found at: