Friday, July 23, 2010


"The censure of Keller is not the last chapter we'd like to see in this open-courts drama. State lawmakers can and should pass their own resolution condemning Keller's actions as unbecoming of the state's highest-ranking criminal appeals judge."

EDITORIAL: THE DALLAS MORNING NEWS. (Wikipedia informs us that, "The Dallas Morning News is the major daily newspaper serving the Dallas, Texas (USA) area, with a circulation of 263,810 subscribers, the Audit Bureau of Circulations reported in October 2009.")


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 official warning to Texas Court of Criminal Appeals Presiding Judge Sharon Keller last week was critical to restoring respect for the state's legal system," the Dallas Morning News editorial published on July 19, 2010 begins, under the heading, "Keller rebuke was necessary."

"In deciding to rebuke Keller, the State Commission on Judicial Conduct went beyond recommendations from a special master who heard evidence in the case,"
the story continues.

""Public humiliation" was enough, the master had said in January, despite a finding that Keller's actions thwarting an 11th-hour death-penalty appeal were "not exemplary of a public servant."

It's a relief that the Commission on Judicial Conduct concluded that humiliation indeed was not enough. Keller's infamous words "We close at 5" – her response to a request for an after-hours filing – required the official condemnation meted out by the commission last week.

The commission could have voted to remove Keller from office, which would have been an extreme step, considering that bumbling and confusion by court personnel and the defense team also played roles in cutting off the appeal.

Another option open to the commission – dismissing the complaint against Keller – would have sent a disastrous signal about the openness of Texas courts, and it's fortunate the panel recognized that. The appearance of callousness in a life-or-death matter could not go unaddressed.

The censure of Keller is not the last chapter we'd like to see in this open-courts drama. State lawmakers can and should pass their own resolution condemning Keller's actions as unbecoming of the state's highest-ranking criminal appeals judge.

The matter involves an appeal being prepared on behalf of convicted killer Michael Richard hours before his scheduled execution Sept. 25, 2007. His lawyers were scrambling to get the filing together in light of a late-breaking Supreme Court ruling and didn't make the court's usual closing time of 5 p.m. The execution went forward about an hour later.

The court has last-minute procedures in death cases, but Keller failed to follow them or to make sure that court personnel followed them. The result, the commission found, cut off Richard's "access to open courts" in violation of the Texas Constitution and brought "discredit on the judiciary."

If Keller is interested in rehabilitating her image, she's going about it in a strange way. The judge's lawyer says she wants to appeal the commission's official warning. Last year, she testified in her case that if she had it to do all over again, she wouldn't change a thing.

Maybe that's good politics in a tough-on-crime state. Maybe Keller wants to hew to the campaign statement she once made about being "pro-prosecutor."

But it would do everyone else a favor if Keller backed out of defensive mode and took her medicine. She should also heed the advice of the judicial commission to "reflect on the importance" of canons of conduct that stress "open communication, congeniality and collegiality" among judges."

The editorial can be found at:

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;