Monday, October 11, 2010


"The three-judge court said the State Commission on Judicial Conduct exceeded its authority in issuing the rebuke, which was not allowed by the Texas Constitution or state law.

The court also threw out Keller’s charges and ruled that the commission could not refile charges, which had accused Keller of violating her duty as a judge."



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:


""A special court of review has thrown out the public rebuke given to Presiding Judge Sharon Keller, who had been admonished for closing the Court of Criminal Appeals to an after-hours appeal from an inmate facing imminent execution," the Statesman story by reporter Chuck Lindell published earlier today under the heading, "Special court throws out Keller charges," begins.

"The three-judge court said the State Commission on Judicial Conduct exceeded its authority in issuing the rebuke, which was not allowed by the Texas Constitution or state law,"
the story continues.

"The court also threw out Keller’s charges and ruled that the commission could not refile charges, which had accused Keller of violating her duty as a judge.

The ruling delivered shortly before 5 p.m.

According to Chip Babcock, Keller’s lawyer, the commission cannot appeal the ruling.

More to come, in Tuesday’s paper and online tonight."


The story can be found at:



A special court of review Monday threw out an ethics rebuke given to Presiding Judge Sharon Keller for closing the Court of Criminal Appeals at 5 p.m. despite knowing that lawyers wanted to file an appeal for an inmate facing imminent execution in 2007.

Ruling not on the merits of the case but on the way it was handled, the three-judge panel also threw out the charges that accused Keller of violating her duty as a judge and prohibits the State Commission on Judicial Conduct from refiling the accusations.

The commission cannot appeal Monday’s ruling.

“This is the end of the road, and it’s been a long road,” said Chip Babcock, Keller’s lawyer. “Judge Keller was extremely gratified by the decision and relieved that this ordeal is finally over.”

Bringing the high-profile case to a swift and stunning end, the review court said the commission committed fatal errors that doomed its punishment of Keller, issued in the form of a July “public warning” that chastised the state’s highest criminal judge for violating court procedures and bringing discredit to the judiciary.

In essence, commissioners chose the wrong punishment, opting for a warning when state law and the Texas Constitution limited their options to a “censure,” a more serious penalty, the court ruled.

The judges said they did not address the merits of the charges against Keller but based their decision solely on the errors committed by the commission.

“Sharon Keller may have got off on a technicality, but a majority of the State Commission on Judicial Conduct found that she did not accord a person about to be executed with ... the right to be heard according to law,” said Scott Cobb , president of the Texas Moratorium Network , an anti-death penalty group.

Her actions violated “accepted principles of right and wrong,” Cobb said.

Keller’s handling of death row inmate Michael Richard’s case drew international condemnation and confirmed, for many death penalty opponents, the image of Texas as a bloodthirsty place with a kill first, ask questions later mentality.

Keller, however, steadfastly maintained that she did nothing wrong on Sept. 25, 2007 — execution day for Richard, a high school dropout convicted of raping and murdering a Hockley mother of seven grown children.

That morning, the U.S. Supreme Court surprised most legal observers by accepting a Kentucky case challenging lethal injection as cruel and unusual punishment.

Richard’s lawyers with the nonprofit Texas Defender Service began work on motions asking Keller’s court for a stay of execution until the Supreme Court ruled in the Kentucky case.

As the Texas court’s 5 p.m. closing time neared, Richard’s lawyers asked for more time to finish their motions. Keller refused, and Richard was later executed.

The Commission on Judicial Conduct, after investigating dozens of complaints, charged Keller in February 2009 with improperly thwarting Richard’s access to the courts.

The charge added that Keller violated court procedures by unilaterally acting on Richard’s request instead of referring it to Judge Cheryl Johnson, who was assigned to handle all Richard matters that night.

Keller argued that defense lawyers were to blame for the missed appeal because they failed to diligently work on his petitions and did not pursue every available avenue to file motions after 5 p.m.

Keller’s argument received a significant boost from District Judge David Berchelmann Jr ., who was assigned to recommend a course of action for the judicial conduct commission.

After a four-day hearing in August 2009, Berchelmann suggested that Keller should not be removed from office or reprimanded, concluding that although she made several questionable decisions on the night of Richard’s execution, his lawyers bore most of the blame for the missed appeal.

Last June, the commission met in private to consider Keller’s fate. Commissioners had three choices — dismiss the charges, censure Keller or recommend that she be removed from office.

Instead, they issued the public warning, raising confusion about the next step in the process, Keller’s appeal to a special review court of three appellate justices chosen at random by the Texas Supreme Court.

Censures are handled like a typical appeal, with the review court hearing oral arguments, reading briefs and reviewing the trial record. But legally, public warnings are appealed by holding a new trial.

Keller argued that a new trial was an unfair financial burden, a wasteful repetition of Berchelmann’s proceedings and a violation of her right to due process.

On Monday, the review court ruled that the type of proceedings used for Keller can only end in censure, not a public warning, and that the error was so fundamental that the only course was to dismiss all charges.

Censure, the court reasoned, requires “a finding of good cause” and seven votes from the 13-member commission, an independent state agency that investigates allegations of misconduct against Texas judges.

“Here, by failing to (authorize censure), the commission implicitly acknowledges that it did not find good cause for its actions or have the required votes to take those actions,” the judges wrote.

The review court also assessed “costs of the litigation” to the commission, which could make taxpayers liable for Keller’s legal fees.

State law, however, specifies that court costs and attorney fees cannot be awarded in judicial conduct proceedings.

Babcock, who said he is studying the discrepancy, estimated that his fees are “certainly in six figures,” adding that he’s “pretty sure” the final bill will be less than $1 million.

State rules do not let lawyers discount fees when representing judges.


The extended story can be found at:



The text can be found at the following link:


(Our thanks to the Texas Death Penalty Blog);


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;;