According to attorney Chip Babcock, the controversy surrounding Texas’ highest criminal court Judge Sharon Keller is all manufactured by lawyers for the Texas Defender Service who have dragged her name through the mud after they failed to do their jobs correctly in defense of executed inmate Michael Richard.
Keller was tried on charges brought by the State Commission on Judicial Conduct that she had failed to do her job and had brought discredit to the judiciary by blocking Richard’s ability to file a final appeal on Sept. 25, 2007. TDS was having computer problems, they said, and called the court to ask permission to file late. The court’s then-general counsel, Ed Marty, called Keller to ask if the clerk’s office could remain open. No, she said, the office closes at 5pm.
During Keller’s four-day misconduct trial, Babcock said that TDS lawyers, including litigation director David Dow, lied when they said they had computer problems, when they told the press the briefs they needed to file were nearly 100 pages, and when they told reporters that they only needed an additional 20 minutes to file. According to Babcock, they really needed an hour. But most importantly, Babcock said during closing statements on Aug. 20, Keller never closed the door of the court to anyone: Dow and TDS should’ve known that they could go directly to any one of the court’s nine judges to file the appeal – they did not need the clerk’s office to remain open. “Judge Keller didn’t close the court to anyone,” Babcock said, as reported by the Austin American-Statesman. “Mr. Richard’s lawyer never knocked on the right doors, and they gave up.”
That isn’t exactly relevant, argues Mike McKetta, who is working for the CJC and acting as the prosecutor in Keller’s case. What is relevant is that Keller failed to follow the execution-day procedures set up by the court: Instead of perfunctorily shutting the clerk’s door to any filing after 5pm, Keller should have referred questions about the late filing to Judge Cheryl Johnson, who was the judge assigned to the case. Instead, Johnson didn’t find out what had happened until several days after Richard was executed.
State District Judge David Berchelmann, who was appointed by the Texas Supreme Court to preside over the trial, will now file findings of fact with the 13-member CJC, which will then be tasked with deciding Keller’s fate. They can dismiss charges, reprimand Keller, or remove her from office. If they go that route, Keller will have the opportunity to appeal the decision to a special court and, ultimately, to the state Supremes. There’s no time limit for Berchelmann to file his findings.
This article appears in August 28 • 2009.