No Excuses for Keller's Conduct, Attorneys Argue

Sharon Keller

Court of Criminal Appeals Presiding Judge Sharon Keller has taken no responsibility for her role in the execution-day mistakes that closed the court to a final appeal by death row inmate Michael Richard, according to a new report filed last week with the State Commission on Judicial Conduct, and her actions – or inaction – are cause for sanction.

The report, filed by attorneys who prosecuted the ethics case against Keller last summer, takes issue with findings of fact issued last month by the case's special master, Judge David Berchelmann, regarding Keller's involvement in the Richard case that ended in his being denied an opportunity to appeal his case and being executed Sept. 25, 2007. When asked by the court's then-general counsel whether the court would remain open to accept a late filing that night by Richard's lawyers with the Texas Defender Service, Keller infamously replied that the court closes at 5pm. Keller has said she meant the clerk's office closes at 5pm and that didn't bar Richard's attorneys from filing their appeal. Nonetheless, during her ethics trial, Keller testified that she would do nothing differently if confronted with the same situation again.

Berchelmann opined that Keller's position was ridiculous, but he still concluded that fault for what happened the day Richard was executed rested largely with TDS and that Richard's life likely would have been spared by the U.S. Supreme Court, which that week had agreed to consider whether lethal injection is a constitutional punishment.

But who is ultimately responsible for not getting a stay for Richard is completely irrelevant, case prosecutors argue in the objections to Berchelmann's findings. The question for the commission to consider is whether Keller's conduct was inappropriate – "willful or persistent," and whether her actions constitute "incompetence in her performance of an important duty" of her office. Berchel­mann "spent the vast majority of his Findings of Fact assessing the conduct of a non-party, the [TDS], nearly all of which conduct was not known to Judge Keller" on the day of Richard's execution, reads the filing. "Things unknown to Judge Keller [that day] cannot be any basis for exonerating her. A judge's conduct must be evaluated based upon what she did know, hear, think, say, do, decide and fail to do." Indeed, Keller knew execution-day procedures and was well aware that any communication about the case should have been directed to the duty judge, in this case Judge Cheryl Johnson, but Keller failed to follow those clearly established procedures.

The SCJC has the option of accepting Berchelmann's findings – and his conclusion that whatever humiliation Keller has suffered so far is punishment enough for her transgressions – or it can reject that finding and decide Keller should be reprimanded or even removed from the bench.