State Commission Considers Keller's Fate

Keller's execution-day decisions under microscope again

Sharon Keller, at a June 18 hearing before the State Commission on Judicial Conduct
Sharon Keller, at a June 18 hearing before the State Commission on Judicial Conduct (Photo by Jana Birchum)

It would seem that Court of Criminal Appeals Presiding Judge Sharon Keller still doesn't believe she made any mistakes on Sept. 25, 2007, the day Michael Richard was executed. In fact, to hear her lawyer, Charles Babcock, tell it, it was Richard's attorneys with the Texas Defender Service who were more to blame for Richard's being executed without his last appeal being heard. The fact that Keller famously told the CCA's then-general counsel, Ed Marty, that she would not keep the court clerk's office open after 5pm to accept a late filing did not hinder the appeal, Babcock argued June 18 before the State Commission on Judicial Conduct. The commission will decide whether Keller deserves any sanction in connection with her decision to close the office and ignore execution-day procedures that would have had her refer all communications about Richard's case to the on-duty judge assigned to it.

Richard was set for execution on the day the U.S. Supreme Court announced that it would hear an appeal challenging the three-drug lethal injection method of execution as cruel and unusual punishment. That announcement ended up creating a de facto moratorium on executions; Richard's attorneys with TDS sought to raise the lethal-injection claim in order to get a stay of execution until that case could be decided. But his appeal was never heard, TDS later said, because Keller had refused to keep the office open late enough to receive the filing.

According to TDS, computer problems kept Richard's lawyers from being able to file the appeal on time. That story has proven to be a lie, said Babcock: TDS' litigation director, David Dow, created a story about a computer crash in order to cause public uproar that would hurt Keller. What happened Sept. 25, 2007, was "serious," Babcock told the 13-member commission, which includes judges and members of the public at large. "Not that Mr. Richard could've had three more months on death row" while the Supremes considered the lethal injection case, he said, "but it's serious what people are trying to do to my client." According to Babcock, Richard's attorneys should have known that they could go to any of the other eight judges on the court to get them to accept the late-filed appeal (the phone numbers of the judges are listed in the phone book, he noted), or they could have had Marty accept the appeal; in the past, Babcock said, TDS had gone to the previous general counsel to file late appeals.

Also important to note, Babcock said, is that Richard was a bad dude: He'd killed a young mother 21 years before his death and had plenty of chances to appeal. In the end, it seems that Babcock's argument to the commission was that no real harm had been done by the failure to consider the appeal – save for the damage that has been done to Keller's reputation. There has been an "almost unspeakable toll" on Keller, including damage to her reputation, her psyche, and her pocketbook, Babcock argued to the commission. And in the process, she has "exposed this case for the pack of lies that it is," he said, "created by people with a political agenda."

The only relevant question, said Mike McKetta, the counsel hired to represent the commission's ethics case against Keller, is whether Keller knew there were execution-day procedures that were mandatory and whether she complied with them. And the evidence, including Keller's own testimony during a four-day hearing last summer before a special master, Judge David Berchelmann, provides a clear answer to both questions: Yes, she knew the rules existed, and, no, she didn't follow them. McKetta said it is absolutely irrelevant who was being executed or who that person's lawyer was – besides, Keller testified that she did not know either of those things at the time she was asked about keeping the clerk's office open past 5pm.

Keller also testified that she knew the execution-day procedures, long established by the court, were mandatory. According to those rules, said McKetta, all communications regarding the day's execution are to be referred first to the assigned judge – in Richard's case, Judge Cheryl Johnson. Keller had a duty to tell General Counsel Marty to call Johnson first, said McKetta; instead, Keller "intercepted and disposed of a communication while the assigned judge was waiting" and expecting that something would be filed. "Keller failed to insist on compliance with something that she knew was mandatory," McKetta continued. "If her testimony had been, 'I didn't know it was mandatory' ... then perhaps it would be a different matter."

Still, Babcock insisted that the entire case against Keller is, essentially, a witch hunt. And, apparently, the commission is part of the problem: Babcock said that the commissioners had been taken in by the TDS' story and had failed to fully investigate the case against Keller before ordering last August's trial before Berchelmann. The commission's investigation was "tainted," he said. Commissioner Tom Cunningham asked Babcock if he was claiming that Keller had been kept from a full and fair hearing of her case. Yes, that was true, Babcock responded. "Isn't it ironic that's what Mr. Richard was asking for?" Cunningham asked.

In sum, McKetta said that Berchelmann's findings of fact in the Keller case were incomplete – for example, he failed to make any findings regarding whether she failed to comply with a mandatory court protocol, which he argued is really the key to the case. Meanwhile, Babcock urged commissioners to stick with Berchelmann's ruling, which found that although Keller's actions did not reflect positively on the court, she should not be further reprimanded for an incident that has likely already caused her great "public humiliation," as Berchelmann wrote earlier this year.

The commission will now have to decide exactly what to do about Keller. It can remove her from the bench – which seems quite unlikely to happen – or choose a lesser form of punishment, including a reprimand or censure. There is no deadline for the commission's decision.

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Sharon Keller, State Commission on Judicial Conduct, Michael Richard, death penalty, Michael McKetta, Charles Babcock, Texas Defender Service

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