No Excuses for Keller's Conduct, Attorneys Argue

New filings suggest judge is shirking responsibility for inmate's death

Sharon Keller
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.

A note to readers: Bold and uncensored, The Austin Chronicle has been Austin’s independent news source for almost 40 years, expressing the community’s political and environmental concerns and supporting its active cultural scene. Now more than ever, we need your support to continue supplying Austin with independent, free press. If real news is important to you, please consider making a donation of $5, $10 or whatever you can afford, to help keep our journalism on stands.

Support the Chronicle  

READ MORE
More Sharon Keller
The Case That Never Closes
The Case That Never Closes
SCJC seeks reconsideration of Keller ruling

Jordan Smith, Oct. 29, 2010

Keller Can Consider Herself Unwarned
Keller Can Consider Herself Unwarned
Curtain finally closes on Keller case

Jordan Smith, Oct. 15, 2010

More by Jordan Smith
'Chrome Underground' Goes Classic Car Hunting
'Chrome Underground' Goes Classic Car Hunting
Motoreum's Yusuf & Antonio talk about the biz and their reality TV debut

May 22, 2014

APD Brass Shifts Up, Down, Across
APD Brass Shifts Up, Down, Across
Musical chairs at Downtown HQ

May 9, 2014

KEYWORDS FOR THIS STORY

Sharon Keller, Michael Richard, death penalty, Court of Criminal Appeals, Texas Defender Service, TDS, CCA, courts, David Berchelmann, State Commission on Judicial Conduct

MORE IN THE ARCHIVES
NEWSLETTERS
One click gets you all the newsletters listed below

Breaking news, arts coverage, and daily events

Can't keep up with happenings around town? We can help.

Austin's queerest news and events

Updates for SXSW 2019

All questions answered (satisfaction not guaranteed)

Information is power. Support the free press, so we can support Austin.   Support the Chronicle