The Austin Chronicle

https://www.austinchronicle.com/news/2009-05-08/778235/

Contradictory Keller Conclusions

By Jordan Smith, May 8, 2009, News

Two former appeals court judges have offered lawmakers competing opinions on whether Court of Criminal Appeals Presiding Judge Sharon Keller should face impeachment. At issue is House Resolution 480, filed by Rep. Lon Burnam, D-Fort Worth, which calls on House lawmakers to investigate and impeach Keller and for the Senate to try her on the House charges that she impermissibly closed the courthouse doors at 5pm on Sept. 25, 2007, denying death row inmate Michael Richard the right to have his final appeal considered. Richard's appeal, based on the U.S. Supreme Court's decision that day to consider whether lethal injection is constitutional, went unheard, and he was executed that night.

Former Houston Appeals Court Judge Michol O'Connor told the House Judiciary & Civil Jurisprudence Committee that Keller's behavior in the Richard case was "outrageous" and that she had cut short Richard's life by eight months. "This is a further embarrassment to the Texas criminal justice system," she said. "It is serious." But former CCA Judge Frank Maloney said lawmakers should not begin impeachment proceedings against Keller. There has been an "assumption" that Keller did wrong, he said, but there is yet no proof. Thinking that she did wrong is "the most ridiculous assumption you could think of," he told lawmakers. Richard's attorneys could have approached any judge on the court to accept the appeal and stay the execution, he said, because state statute allows attorneys to file for a stay with any of the nine justices. There was "no excuse for those lawyers not contacting an individual judge," he said – seeming to disregard any concern that for the defense attorneys to contact an individual judge about Richard's appeal would constitute an impermissible ex parte communication, without first notifying the attorney for the state.

Nonetheless, Maloney's defense of Keller – that she should be allowed to go through her hearing in August, to defend charges of incompetence brought by the State Com­mis­sion on Judicial Conduct – seemed to resonate with most lawmakers on the committee, who appeared, at best, skeptical about Burnam's resolution. (They noted, for example, that Keller hadn't broken any state statute – an excuse that didn't sit well with several witnesses. "This is an offense against the Constitution; this is a denial of due process," said attorney Broadus Spivey.)

Committee chair Rep. Todd Hunter, R-Corpus Christi, left the resolution pending. Still, Burnam told lawmakers he will call on the full House to vote on the resolution, as a point of personal privilege, even if the measure doesn't make it out of committee. (For more on Keller's recent troubles with the law, see "Naked City.")

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