"Chip Babcock, Keller's lawyer, argued that the commission exceeded its authority in issuing the rebuke in the form of a "public warning." Under Texas law and the state constitution, the commission could issue the harsher punishment of censure, but not a warning, he said.
"Your only choice is what we're asking — dismiss this. Do not force Judge Keller to go through a new trial," Babcock said during the hearing at the Texas Supreme Court near the Capitol.
But the three judges, chosen at random to sit on the review panel, steered Babcock into a discussion about ways to reclassify the rebuke to conform to state law or the constitution.
"Is it just a (correctable) error?" asked Justice Elsa Alcala of the 1st Court of Appeals in Houston."
REPORTER CHUCK LINDELL: THE AMERICAN STATESMAN;
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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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"A special court of review plans to decide by Oct. 8 whether to dismiss a judicial ethics panel's rebuke of Judge Sharon Keller or move forward with her appeal," the American-Statesman story by reporter Chuck Lindell published on Monday September 20, 2010 under the heading , "Panel to decide on Keller rebuke by Oct. 8: Judge's lawyer says appeals process is unfair to her. Sharon Keller; Judge asked panel to toss out rebuke from state commission," begins.
"Keller appeared before the special court's three-judge panel Monday to push for dismissal now, avoiding a three-day trial at the end of November over the rebuke from the State Commission on Judicial Conduct," the story continues.
"The commission, which investigates misconduct allegations against Texas judges, ruled in July that Keller violated her judicial duties by closing the Texas Court of Criminal Appeals at 5 p.m. despite knowing that lawyers wanted to file an appeal in an imminent execution in 2007.
Chip Babcock, Keller's lawyer, argued that the commission exceeded its authority in issuing the rebuke in the form of a "public warning." Under Texas law and the state constitution, the commission could issue the harsher punishment of censure, but not a warning, he said.
"Your only choice is what we're asking — dismiss this. Do not force Judge Keller to go through a new trial," Babcock said during the hearing at the Texas Supreme Court near the Capitol.
But the three judges, chosen at random to sit on the review panel, steered Babcock into a discussion about ways to reclassify the rebuke to conform to state law or the constitution.
"Is it just a (correctable) error?" asked Justice Elsa Alcala of the 1st Court of Appeals in Houston.
Justice Charles Kreger of the 9th Court of Appeals in Beaumont pointed out that the commission noted that its warning was a "condemnation" of Keller's conduct in the appeal of Michael Richard, who was executed for the 1986 rape and murder of a Hockley woman.
"Doesn't that sound like a denunciation ... that can be construed as a censure?" Kreger asked.
Babcock gained more traction with a different argument — that the process for appealing the public warning is absurd and unfair to Keller.
Had the commission done its job properly and issued a censure, Babcock said, the three-judge panel would hear brief oral arguments and review the record of a trial held last year in San Antonio. But a warning is appealed only by holding a completely new trial — a needlessly expensive and time-wasting process, he said.
Alcala said she was sympathetic to the argument.
"We hear all the same evidence?" Alcala said. "You have to pay the lawyers' expenses; the citizens pay another fact-finder. It doesn't sound fair, and it doesn't feel fair."
But Mike McKetta, an Austin lawyer representing the commission, said the Legislature set up the process "for good or bad," adding that Keller's right to appeal the warning is protected by the arrangement.
If the special court denies Keller's motion to dismiss, a hearing will be set for Nov. 29 through Dec. 1. The court's order would specify whether it will hold an all-new trial or review the record from previous proceedings."
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The story can be found at:
http://www.statesman.com/news/texas-politics/panel-to-decide-on-keller-rebuke-by-oct-927620.html
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KELLER'S APPEAL: A COMMENTARY: GRITS FOR BREAKFAST;
"Monday, September 20, 2010;
Keller appeal marked by byzantine legal debates;
This afternoon I attended Sharon Keller's appellate hearing mentioned earlier today on Grits, and I must say I don't envy the three justices charged with deciding the obscure, narrow legal issues before them. The legal arguments were so byzantine nobody seemed to completely grok how all the different rules and statutes worked together, and it seemed to me the simplest solution might be for the court to remand the case back to the State Commission on Judicial Conduct for the equivalent of re-sentencing.
The hearing was lightly attended - just 21 people in the audience that I counted, including myself and three reporters (at least who I could identify). Quite a few of the others in attendance were employees of the attorneys working the case or the SCJC, plus a handful of anti-death penalty activists who'd been protesting with placards outside before the hearing began.
The justices shut down fairly quickly Keller's attorney Chip Babcock's efforts to reassess the merits of the case (he accused attorney David Dow of "lying" several times and declared at one point, "This is all a media creation based on a series of lies"). Instead the discussion mostly focused on whether the State Commission on Judicial Conduct improperly imposed an excessively lenient sentence on Judge Keller - giving her a "public warning" instead of subjecting her to "censure," which would have forbade her from sitting as a visiting judge after leaving office.
At the hearing before the Commission on Judicial Conduct earlier this year, it was Keller's attorney whose arguments suffered from "bad facts." Today it was the SCJC's attorney Mike McKetta who was more on the defensive, trying to explain why the Commission failed to follow its own written procedures distributed to judges about how such cases are handled and why SCJC Executive Director Seanna Willing had made public statements that seemed to support Keller's arguments about the proper range of punishments. See these prior Grits posts for more on that controversy:
* Texas Supreme Court to review 'lawless' leniency for Keller by Judicial Conduct Commission
* Special treatment for Keller may create 'bad law' around judicial misconduct
* More backstory on Keller public warning
* Three options in Keller case for Judicial Conduct Commission
The debate was confusing and confused even for the principals and the three jurists, mainly because the portions of the Government Code and the Supreme Court rules governing the process clearly never countenanced this situation. In some instances they plainly contradicted one another or used the same terms in different ways, particularly the word "sanction." (I stopped in at the Senate Criminal Justice Committee offices after the hearing to suggest they review the record from the proceedings and consider updating the Government Code to account for the inconsistencies identified this afternoon.)
McKetta made a somewhat persuasive argument that the broader array of punishment choices were justified. The portion of the Constitution Keller cited, he pointed out, listed censure or a recommendation for removal as the only possible outcomes, though everyone acknowledged that "dismissal" was also an option, which in fact was the outcome the Judge was pushing for. McKetta cited other examples where the Texas Constitution used the word "or" in that way - not to say definitively either-or but in a more de-limited fashion. But in this writer's non-lawyerly view, Keller's arguments were more persuasive that the leniency given her by the Commission in light of the damning findings of fact was probably improper.
Which brings us to the question: What now? Keller's attorney argued that the justices should simply dismiss all charges and that the Commission's ruling was "void" because they'd overstepped their authority. But two of the three justices expressed reservations on that score. Justice Elsa Alcala pointedly asked Babcock what they should do if they found the Commission's decision was "erroneous" but not "void." He insisted only the latter result was acceptable, and I found myself wishing they'd asked the same question of Mr. McKetta. I asked him myself after the hearing, but he refused to comment, adding, "You're asking the right question, though."
It's hard to guess the next move. The judges could outright dismiss the charges as "void," affirm the Commission's strange, "lawless" leniency and move forward with the appeal, or potentially (an outcome that wasn't discussed but which wouldn't surprise me) kick the case back down to the Commission with an order to pick a punishment from the three, constitutionally approved options.
To their credit, it didn't appear from the questioning that the justices involved came to the table with any preconceived notions about the outcome, which one certainly couldn't say for Special Master David Berchelmann who presided over the original fact finding in Keller's case. But these would be hard questions for anyone to answer. As I said, I don't envy them their task and I certainly didn't leave the room feeling as though there was an obviously "correct" decision I could easily identify. Quien sabe? We'll know soon enough, I suppose."
The commentary can be found at:
http://gritsforbreakfast.blogspot.com/2010/09/this-afternoon-i-attended-sharon.html
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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:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
