Wednesday, July 21, 2010


"It could have been worse.

During the closed-door session in which the 13-member commission debated what sanction it should give Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, one non-lawyer member of the commission opined that Keller should be commended for saving the state money by blocking the appeal."



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:


"In what might be called a historic slap on the wrist, the Texas Commission of Judicial Conduct last week issued a strongly-worded “condemnation” of the actions of the state’s top criminal appeals judge for effectively shutting the courthouse door to a last-minute appeal of a condemned man — then warned her not to do it again,"
Rick Casey's July 20, 2010 Houston Chronicle story begins, under the heading, "With Keller, anatomy 
of a historic wrist slap."

"It could have been worse,"
the story continues.

"During the closed-door session in which the 13-member commission debated what sanction it should give Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, one non-lawyer member of the commission opined that Keller should be commended for saving the state money by blocking the appeal.

The controversy stems from Keller’s actions on Sept. 25, 2007. That morning the U.S. Supreme Court, in a Kentucky case, agreed to take an appeal arguing that the cocktail of drugs used to administer the death penalty by injection caused such pain that it is unconstitutionally “cruel and unusual punishment.”

Since Texas uses the same cocktail, members of the Court of Criminal Appeals expected a filing from lawyers for Michael Wayne Richard, a murderer who was scheduled to die that evening. A staff lawyer for the court drafted an order rejecting the expected appeal, and one judge on the court drafted a dissent.
Closed for the night

Judge Cheryl Johnson was assigned, under court procedures, to receive all communications from Richard’s attorneys. She and some of the other judges waited after hours expecting an appeal, and she later testified she would have accepted any filing up to the time of the execution.

But when an employee of the lawyers called the clerk’s office to see if they could file after the 5 p.m. closing because of “computer problems,” a court staffer asked Keller for direction. Rather than refer the matter to Johnson as policy required, she told the staffer to convey to Richard’s lawyers that the clerk’s office closed at 5 p.m. She herself neither informed Johnson of the call nor instructed the staff to do so.

The U.S. Supreme Court turned down Richard’s appeal because he had not first filed with the state court. Two days later, another Texas death row inmate would have his execution stayed by the Supreme Court after he was rejected by the Court of Criminal Appeals. (The Supreme Court would later uphold the use of the “cocktail.”)
Second-lowest sanction

In issuing a “public warning,” the second-lowest public sanction available, the commission rejected the recommendations of District Judge David Berchelmann of San Antonio. After a four-day “trial” during which both sides put on testimony, Berchelmann wrote a lengthy opinion in which he said the Texas Defenders Service, which represented Richard, had performed very poorly and provided no evidence of computer problems. He said Keller had suffered enough public humiliation.

Strangely, he also wrote that he didn’t believe her testimony that under similar circumstances, she would do the same thing in the future.

A majority of the panel agreed that Keller needed to be sanctioned for ignoring the procedures she admitted to knowing. Because of the poor performance of Richard’s lawyers and evidence of other problems at the Court of Criminal Appeals itself, none of the commissioners argued to remove Keller from office.
Planning an appeal

Some did urge a “public reprimand,” a step up from the “warning.” But a reprimand results in a judge being ineligible to sit as a visiting judge after retiring from the bench.

One member asked why they would prohibit Keller from sitting later if they did not did not think she needed to be removed now. That argument carried the day for the lower sanction.

Keller’s attorney said she plans to appeal the “warning.” This would require an entirely new trial before three judges chosen by lot from the state’s mid-level courts of appeal. Their decision would be final.

Keller is a proud woman, but her pride could cost her, and not just in legal fees.

She is up for re-election in 2012, and an appeal could keep this seamy story in the public eye well into campaign season."

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

Harold Levy: Publisher; The Charles Smith Blog;