Sitting on the other side of the bench—-Hearing starts today for judge
accused of not keeping offices open late for a death row appeal
For almost 2 years now, protesters statewide and nationally have called
for the forced resignation of Sharon Keller, one of Texas' highest-echelon
judges, over charges of unethical conduct after she refused to accept a
last-minute appeal from a death row inmate.
Starting today, a rare hearing will begin in San Antonio that could help
settle the matter.
Keller the presiding judge of the Texas Court of Criminal Appeals, the
criminal equivalent to the state Supreme Court will sit before state
District Judge David Berchelmann Jr. at the Bexar County Courthouse as
special prosecutors for the State Commission on Judicial Conduct present
evidence against her.
The process which has never before involved a judge as high-ranking as
Keller could result in the charges being dismissed or could be the
beginning of a protracted legal battle to boot her from the bench.
The controversy, which has served as a launching point for criticism of
Texas' death penalty policies, began with a short telephone conversation
minutes before 5 p.m. on Sept. 25, 2007.
The execution of death row inmate Michael Richard was scheduled to begin
in less than 90 minutes, and his lawyers were racing to file an appeal
after the U.S. Supreme Court had announced that morning that it would
determine whether lethal injection constituted cruel and unusual
punishment. Richard's lawyers wanted a stay of execution until the Supreme
Court could decide the matter.
"They want to hold the court open," general counsel Edward Marty recalled
telling Keller over the phone, according to documents filed by State
Commission on Judicial Conduct prosecutors.
Keller refused, saying the clerk's office closed at 5 p.m.
Despite several attempts that night to persuade the clerk's office to
accept the appeal, Richard's attorneys said they were stonewalled. At 8:20
p.m., Richard was executed for the August 1986 rape and shooting death of
Marguerite Dixon, a Hockley nurse.
Keller, who had gone home early that afternoon to meet a repairman, had an
ethical duty to advise fellow Appeals Court Judge Cheryl Johnson of the
conversation, according to prosecutors for the Judicial Conduct
Commission. As was policy, Johnson was on call that night in the event a
last-minute appeal would be filed.
"Neither Judge Johnson nor the other judges who remained at the court
after 5 p.m. were aware that Mr. Richard's lawyers had called to ask
whether filings after 5 p.m. could be accepted," prosecutors alleged in
And because the U.S. Supreme Court had agreed that morning to review
lethal injection practices across the country, Keller's colleagues had
been expecting an appeal. The nation's highest court eventually rejected
the notion that the practice constituted cruel and unusual punishment, but
no inmate in Texas or elsewhere was executed during the six months of
But Keller never intended to obstruct Richard's attorneys from filing an
appeal, said her lawyer Charles "Chip" Babcock. If you believe this story
that's been spun, it kind of looks bad for Judge Keller," he said. But in
truth, he said, the one or two-minute phone conversation that she had with
Marty, the general counsel, was solely about office hours and not about an
"She picked up the phone and she answered a simple question," he said.
"There's just no way she violated any code of conduct."
Richard's attorneys could have filed the appeal by calling the on-duty
judge, he added, saying Keller can't be blamed for their dereliction of
Calls last week to Texas Defender Services, which handled Richard's
appeals, were referred to Houston attorney Neal Manne. Placing blame on
the respected nonprofit is a classic smokescreen tactic, said Manne . "I
understand why she wants to change the focus away from herself, but I
think it's a cheap shot," he said. "It's legally irrelevant. The focus is
and should be on what she did or didn't do."
Keller, who couldn't be reached for comment last week, is expected to
testify at this week's hearing. Others expected to testify include fellow
Court of Criminal Appeals judges, Texas Defender Services staff and the
court's former general counsel.
The hearing will mirror a civil trial with the exception of its
resolution. When concluded, Berchelmann will issue a report stating the
facts as he sees them to the 13-member State Commission on Judicial
Conduct. The panel will then decide at a public meeting one of three
options: Dismiss the case; issue a public censure; or recommend to the
Supreme Court that Keller be removed.
If Keller appeals, attorneys said the process from there could take years.
(source: San Antonio Express-News)
Books: "True Stories of False Confessions"
In True Stories of False Confessions, editors Rob Warden and Steven Drizin
present articles about some of the key accounts of false confessions in
the U.S. justice system written by more than forty authors, including Alex
Kotlowitz and John Grisham. The cases are grouped into categories such as
brainwashing, inference, fabrication, and mental fragility. This refutes
the perception that false confessions represent individual tragedies
rather than a systemic flaw in the justice system. The editors make
recommendations for policy changes that would reduce false confessions.
(R. Warren & S. Drizin, editors, "True Stories of False Confessions,"
Northwestern University Press, 2009).
(source: Death Penalty Information Center)