Judge 'Killer' Keller to Face Trial

Bad karma over refusal to hear appeal of death row inmate

Sharon Keller
Sharon Keller

Nearly a year and a half after a group of lawyers complained about her conduct to the State Commission on Judicial Conduct, the commission on Feb. 18 charged Court of Criminal Appeals Presiding Judge Sharon "Killer" Keller – as she is known in anti-death-penalty circles – with a "willful and persistent failure" to follow the court's execution-day procedures, violating the Texas Consti­tu­tion and the Texas Code of Judicial Conduct. Her actions, the charging document reads, cast "public discredit" on the state judiciary.

On Sept. 25, 2007, Keller refused to accept the last-minute appeal of Texas death row inmate Michael Richard, whose lawyers were seeking a stay of his looming execution. The stay was to be based on that morning's U.S. Supreme Court decision to hear an appeal filed by two Kentucky death row inmates challenging the constitutionality of lethal injection. Richard was scheduled to be executed at 6pm that evening, which put his lawyers on an accelerated timeline to draft and file the appeal – a situation that grew worse when computer problems delayed getting the paperwork to the court. Richard's lawyer, David Dow of the Texas Innocence Network, called the court clerk to say the appeal would be slightly delayed – he needed about 20 more minutes, he said. Keller refused to extend the deadline, declaring bluntly that the court closed at 5pm. Richard was executed that night.

On Oct. 4, 2007, Keller told the San Antonio Express-News that she had "no second thoughts" about her decision to close the court – and that Richard's attorneys should have been more prompt: "You're asking me whether something different would have happened if we had stayed open ... and I think the question ought to be why didn't they file something on time?" she said.

Michael Richard
Michael Richard

Of course, "something different" likely would have been the result if Keller hadn't been so eager to shut the court's doors – Richard had a good shot at a stay of execution from the Supreme Court, considering the significance of continuing to execute inmates while the method of execution remained in question. In fact, not 24 hours after Richard was executed, the high court granted a stay for Texas inmate Carlton Turner Jr., after the CCA denied his appeal. (Because the CCA had refused Richard's appeal but did not deny it, procedurally the Supremes were not in a position to do much except allow his execution to proceed. Ultimately, the Supremes' decision to accept the Kentucky case prompted a seven-month moratorium nationwide while the case was pending.)

In the wake of Keller's callous action, a group of nearly two dozen prominent attorneys signed a complaint filed with the Commission on Judicial Conduct by Texas Civil Rights Project Director Jim Harrington, calling for Keller's reprimand – or her ouster. That call was answered last week, when the commission charged Keller with incompetence and willfully ignoring her duties. According to the charge, it was Judge Cheryl Johnson, not Keller, who was assigned to handle the Richard case – meaning that all communication regarding his final appeals should have first gone through her. But, the charge asserts, Keller failed to tell the court clerk to notify Johnson about the delayed appeal.

In fact, Keller left work early on Sept. 25, 2007, to meet a repairman at her house and thus wasn't even at the court when she was called to decide whether to accept the late appeal. (According to Keller, she was asked if the clerk's office should stay open late, not whether the court should be available to handle the appeal. The court's general counsel, Edward Marty, told the commission he specifically told Keller the question was whether the court would remain open to accept the late filing.)

Moreover, according to the charge, Keller failed to tell any of her colleagues what she'd done, even when her fellow judges the next day were wondering aloud why Richard's attorneys wouldn't have filed a final appeal – they realized the significance of the U.S. Supreme Court's decision that day and expected Richard to ask for a stay based on that case. Instead, when Judge Cathy Coch­ran posed a hypothetical about what would happen if an appeal came in late, Keller replied: "The clerk's office closes at 5pm. It's not a policy; it's a fact." Still, the charge asserts that Keller also knew that it was "common in the past" for the court to receive late pleadings on execution days after the clerk's office had closed.

Keller will now face a public hearing on the charges, which could end with her ouster, a reprimand, or her exoneration. That last possibility is the one Keller's lawyer Chip Bab­cock is betting on: "Judge Keller very much denies these allegations," he told the Austin American-Statesman. "But as importantly, there are a number of facts which are omitted [in the charge] that would win the case for her if known."

Harrington says he's pleased the commission has finally taken action and hopes the decision is "the beginning of [Keller's] removal from office," he said. "If ever a travesty of justice" had a face, "she personified it in this injustice."

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Sharon Keller, Michael Richard, Texas Civil Rights Project, State Commission on Judicial Conduct, death penalty, Court of Criminal Appeals

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