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August 18, 2009

What can and should we take away from the "trial" of Texas Judge Sharon Keller?

I have not closely followed the controversy surrounding Texas Court of Criminal Appeals Judge Sharon Keller because I have never been confident that her actions on the day the Supreme Court granted cert in the Baze lethal injection case — or the vocal complaints about her actions that day — reflected anything more than the usual sturm und drang that surrounds the death penalty in Texas.  Nevertheless, the controversy rages on, as evidenced by this New York Times report on the start of Judge Keller's "trial" yesterday:

The highest-ranking criminal judge in Texas, the woman who presides over the most active execution chamber in the country, sat at a defense table on Monday to face charges of intentionally denying a condemned man access to the legal system.

The judge, Sharon Keller of the Texas Court of Criminal Appeals, took her seat before a gallery crowded with bloggers, lawyers and death penalty protesters.  Outside the courthouse, demonstrators called for her ouster. Inside, lawyers on both sides emphasized that capital punishment was not on trial. 

But to some, Judge Keller has come to embody the practice.  An intensely private former member of the Dallas County District Attorney’s Office, she won election to the court in 1994 and to the post of presiding judge in 2000. She has cultivated a reputation for rulings favorable to the prosecution in death penalty cases.

On Sept. 25, 2007, Judge Keller put in a 10-hour workday and went home around 4 p.m. to meet a repairman. That morning the United States Supreme Court had effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in a Kentucky case. Largely on the basis of the justices’ action, lawyers for a Texas death row inmate were putting together an appeal to stave off execution. An assigned duty judge was waiting at the courthouse for any last-minute appeal on the inmate’s behalf.

Around 4:45 p.m., the general counsel of Judge Keller’s court called her to relate a request to file paperwork after 5 p.m., the usual closing time for the court clerk’s office. Judge Keller replied that the clerk’s office closed at 5 p.m. A few hours later, the inmate was executed.

As the story behind the execution spread, defense lawyers, editorial boards and legislators called for Judge Keller’s removal. In February, the State Commission on Judicial Conduct filed formal charges. The case was assigned to a special master, Judge David Berchelmann Jr. of the district court here in Bexar County, for the civil fact-finding proceeding that opened Monday.

In written arguments, the commission contends that Judge Keller circumvented normal procedures, which provide for after-hours appeals in capital cases. Judge Keller responds that the lawyers for the inmate, Michael Richard, a convicted murderer who made no claim of innocence, should have filed their paperwork with the assigned duty judge rather than trying to go through the clerk’s office.

The trial, expected to last most of the week, promises to unfold as a finely wrought dance around the details of an afternoon’s timeline.....

A lawyer for Judge Keller, Charles L. Babcock, argued that the entire case amounted to a few innocent, misunderstood words spoken on the telephone. “Judge Keller is an honorable, competent, popularly elected judge who believes in and follows the rule of law,” Mr. Babcock said.

As suggested by the title of this post, I am not sure what to take away from the trial of Judge Keller.  I am sure, however, that Scott at Grits for Breakfast is likely to provide a sober and shrewd perspective on this case.  Consider, for example, this post at Grits, titled "Sharon Keller misconduct trial more about judicial activism than the death penalty."

August 18, 2009 at 05:55 AM | Permalink


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What material harm did Judge Keller cause? None.

Here is the collateral mortal sin harm she caused. She precluded many hours of lawyer appellate work, all pretextual, on behalf of a guilty murderer.

So she must be destroyed by the lawyer hierarchy. Because rent seeking is armed robbery, self-dealing, and the trial carries an inherent conflict of interest, it is her prosecutors and judges who need an hour's fair trial and then to be executed in the courthouse basement.

This blog and that of Grits are so biased for government lazy lawyer worker rent, they are not even serious, let alone correct. The Judicial Commission and these left wing blogs care only about one thing, the rent.

Posted by: Supremacy Claus | Aug 18, 2009 10:02:25 AM

SC, if Baze had been decided differently then there would be greater "collateral harm" for Richard. But Keller had no crystal ball and couldn't have known how that case would be decided. Judges who ignore the rules because of biases about the death penalty (on either side of the debate) discredit the court and the entire system.

And it's not just "left wing blogs" that think Keller was wrong. Judge Cheryl Johnson is a Republican, pro-death penalty judge who's approved dozens of executions while on the court. But she was also the designated "duty judge" on Richard's case, and she testified yesterday that Keller usurped her authority to decide whether to accept the appeal. Just because the defendant is unpopular (and condemned) doesn't relieve Keller of her responsibility to follow the rules of the court. This is simply not a left-right issue.

As for the "rent" garbage and your repeated suggestions about killing judges, maybe it's time to get back on your meds before the men in white suits come and haul you off (back?) to the rubber room.

Posted by: Gritsforbreakfast | Aug 18, 2009 10:34:46 AM

S Clause, you misunderstand something vital to the American foundation. Defense lawyers do not defend an individual defendant. They defend the Constitution. Try saying it: Con-sti-tu-tion. Defense lawyers are the thin white line against the black cloud of tyranny. Public defenders, I think, deserve the most respect. Of the three branches of government, the judicial branch deserves the most respect because the judicial branch understands why properly funded public defenders are necessary to a free and ordered society. Even so, no judge or Justice is always right because no one is always right. Maybe someone who makes a large profit off of it told you criminal defendants have more rights than victims. That someone lied to you while raking in the cash or the votes or cash and votes. Why not delve into that rent seeking? Why not follow that money?

Posted by: George | Aug 18, 2009 10:56:13 AM

This whole thing is silly. First of all, the lawyers for the killer created this problem by waiting until the last minute to file an appeal. The lethal injection issues were well-known to Dow et alia long before SCOTUS granted cert. in Baze. Second of all, if the clerk's office closes at 5, it closes at 5. Judges shouldn't willy-nilly bend the rules to aid litigants. And, of all litigants, why should convicted murderers get this kind of succor?

And as for Judge Keller not following the rules of court? I fail to see how saying that the clerk's office closes at five is not following the rules of court. Moreover, it's incumbent upon the litigant to point things out to the judge, not for the judge to figure out exactly what is being asked.

Posted by: federalist | Aug 18, 2009 11:10:19 AM

I have not advocated killing judges until after a fair trial for an hour, and conviction for insurrection against the constitution. They are mass murderers as well as insurrectionists. They allow millions of violent crimes, and tens of thousands of murders, with rates that are disparate by race. By their devaluation of the black crime victim, their mass murders have a racial maldistribution.

Procedural due process is to prevent the oppression of innocent defendants. It is not for lawyer make work. All execution methods of the past century are far kinder than the deaths 90% of us will undergo, prolonged, agonizing, humiliating. Once you have been diagnosed with your terminal illness, you will envy the brutal rapist/murderer's death. Spend a little time with a dying relative. See if you can stand what they are going through for weeks and months for even an hour.

Why would there be so much effort and trouble to prosecute a judge on a super tiny lawyer gotcha, when the outcome of her non-mistake was correct anyway? The left gets passionate when its salary generating procedures are bypassed. Her adherence to the rules, and her refusal to compensate for public defender legal malpractice (to miss the closing time of the clerk's office, after 15 years of litigation in this case) cost the lawyer profession possibly a $million. That is what is unforgivable.

Her prosecutor and her judicial commission should be stopped by a higher court, no matter what prior case law says. Then her persecutors should be prosecuted for a false prosecution with an improper motive, the rent.

I do not differentiate between right and left. Scalia will have loosed more criminals, and generated more lawyer work than Brennan thought possible. All lawyers are united in this. The rent trumps all ideology, all loyalties.

Posted by: Supremacy Claus | Aug 18, 2009 11:54:31 AM

I think that even if found not guilty of any unprofessional conduct, the message has been sent to all judges. You will bend over backwards when lawyers want to generate make work, or you will face tiny but ruinous lawyer gotchas. If she prevails, she needs to be compensated for her trauma and stress. That is the only way to stop the above message from being sent. End all judge immunities. The ownere of the Judicial Commission should apologize, pay her legal costs, and give her compensation, such as pay for the time she spent on this case.

Posted by: Supremacy Claus | Aug 18, 2009 11:59:58 AM

"[O]f all litigants, why should convicted murderers get this kind of succor? [i.e., access to the courthouse after 5 p.m.]"

Because, of all litigants, convicted murderers who are then executed cannot get the mistake corrected later on. Duh.

Posted by: federalist is a moron | Aug 18, 2009 3:35:30 PM

cute response, but it still doesn't explain why a convicted murderer should have an appeals court do the job for the attorneys . . . .

Posted by: federalist | Aug 18, 2009 6:19:11 PM

federalist writes, "I fail to see how saying that the clerk's office closes at five is not following the rules of court."

It's simple: The decision to turn away the filing was not Keller's to make. The court had rules about who should make that call and Keller did not follow them. Instead, she made the decision herself and now she's facing the consequences for that arrogance. You may think it's a trivial violation, but her Republican, pro-death penalty colleague on the court who was snubbed agrees that she violated court rules and that it was a significant breach. And contrary to SC's absurd belief, she makes no extra "rent" for saying so.

Posted by: Gritsforbreakfast | Aug 18, 2009 6:26:00 PM

Sorry grits, she just gave factual information with respect to the clerk's office closure. It's up to the attorneys to argue for what they want. Punishing a judge for an on the fly statement that the clerk's office closes at five is beyond nuts.

Posted by: federalist | Aug 18, 2009 9:50:44 PM

Grits: To clarify. Keller is not collecting rent. She is ending rent collection in the $millions for death penalty whores of both sides. So she must pay.

She is being made an example for allowing an execution by her adherence to the well known rules. Now, judges are deterred. They will personally come in from home with a set of janitorial keys to open shop at 3 AM so that lawyers can spare a rapist murderer, despite 15 years of litigation. By sparing that life, the judge with the janitorial keys extends the appellate lawyer jobs for another $million or $10 million. That is the big deal of this pretextual case. It is certainly not about the constitution. Can George pronounce it? It is easy. Lawyer R-E-N-T.

Posted by: Supremacy Claus | Aug 18, 2009 10:15:16 PM

Real time blogging of the trial. Judge Keller testifies tomorrow.

Posted by: Supremacy Claus | Aug 18, 2009 10:54:32 PM

Followed here.


Posted by: Supremacy Claus | Aug 18, 2009 10:55:18 PM

In some states there is a constitutional provision that the "courts are always open". Is there such a provision in Texas? And it is the Clerk's office or the judge to whom one files stays of execution. The judge's claim that the ligtigant has to go find the duty judge is lame and so goes some blame. When it is one certain person's turn to enter the pearly gates and St. Peter's stand-in is there, she will say: Its after 5 o'clock! Or would that not be fair?

Posted by: mpb | Aug 19, 2009 10:35:50 PM

Hey, she stood up for what she believed in, I commend her for that, meaning, she is teaching crazy working career people that we all have a family to go home too and we can’t kill ourselves for work…she will get her respect back in due time. I have faith.

Posted by: henryyoung | Aug 20, 2009 7:27:52 PM

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