The Austin Chronicle

Keller Can Consider Herself Unwarned

By Jordan Smith, October 15, 2010, News

As they say, you can beat the rap, but you can't beat the ride. So it's gone for Sharon Keller, presiding judge of the Court of Criminal Appeals – aka "We-Close-at-5" Keller – who for three years has been in the justice system spotlight for her role in closing the court to a death row inmate's last appeal.

Although a majority of the State Commission on Judicial Conduct concluded that Keller violated the law in closing the courthouse door to Michael Richard on Sept. 25, 2007 (the night of his execution), the official sanction rebuking Keller for her actions has now been tossed out, and the SCJC is blocked from filing new charges against her. That is the final word on the matter, according to the ruling of an appointed three-judge court of special review assigned to hear Keller's appeal of the commission's action.

Keller was given a "public warning" for the role she played in blocking Richard's access to the court for a final appeal; regardless of the underlying merits of the case, the three-judge panel ruled that the warning was not among the punishments available to the SCJC and is therefore disallowed by the Texas Constitution: "We conclude that ... it is impermissible to assess sanctions following a formal proceeding by the Commission and, therefore, the sanction is erroneous as a matter of law," the judges wrote. "Accordingly, we vacate the Commission's Order and dismiss the charging document."

At issue here is whether the SCJC opted for a formal review process that then limited the type of punishment that could be meted out. The commission issued a "formal proceeding" against Keller, sending the case to a special master to hear the evidence against her. Judge David Berchelmann, appointed by the Texas Supreme Court to hear the case, ruled in January that Keller was only partly to blame for Richard's appeal not being heard before he died. He placed the bigger blame on Richard's lawyers at the Texas Defender Service and concluded that Keller's conduct, while hardly exemplary, "does not warrant removal from office, or even further reprimand beyond the public humiliation she has surely suffered," Berchelmann wrote. Keller and SCJC Executive Director Seana Willing objected to the findings, and arguments from both sides were heard by the full commission this summer. In the end, the commissioners opted to hand Keller the public warning.

But that warning was not within their power, the three-judge panel ruled this week. After initiating a formal proceeding against a judge, as was done in Keller's case, the commissioners have only three options: dismiss the case, censure the judge, or recommend that the judge be removed from office. A public warning, the judges noted, was an option to the commission but only under a separate, less formal investigative process. Had the SCJC investigated and then acted alone, it would have had a broader range of possible punishments from which to choose, the judges noted. "We hold that a sanction is available only after informal proceedings, that a sanction may not be imposed after formal proceedings, and that the Commission erred as a matter of law by issuing a sanction following the formal proceeding in this case."

Further, the judges reason that because the commission did not vote to "authorize a censure or to recommend the removal or retirement of Judge Keller," the commission is "implicitly" acknowledging that it "did not find good cause for its actions" or have the required seven votes (of 13 members) to impose either of those disciplines. As such, the judges reason, the commission actually had no other option than to dismiss the charges against Keller, which it has ordered. That ruling, of course, says nothing about whether Keller's actions that day in 2007 were illegal or wrong. "In that we have reached our decision to dismiss by determining that the procedure employed by the Com­mis­sion was erroneous, we express no opinion concerning the merits of the accusations against Judge Keller," they wrote.

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