Report: Texas Judge Shouldn't Lose Job Over Death-Row Inmate Controversy
An embattled Texas judge who closed her court before a death-row inmate
could file his final appeal should not lose her job or receive any further
punishment beyond the "public humiliation" she has faced, a judge
presiding over her ethics trial said in a report released Wednesday.
Judge Sharon Keller still faces 5 judicial misconduct charges for refusing
to keep her court open past 5 p.m., and the state commission that will
ultimately decide Keller's fate is not bound by the recommendations in
But the report makes it clear that Keller is not to blame for a
twice-convicted killer being executed Sept. 25, 2007.
"Although Judge Keller's conduct on that day was not exemplary, she did
not engage in conduct so egregious that she should be removed from
office," wrote state district Judge David Berchelmann, who oversaw
Keller's ethics trial.
Berchelmann went on to recommend that Keller was also undeserving of
"further reprimand beyond the public humiliation she has surely suffered."
Mocked as "Sharon Killer" by her detractors, Keller has remained the
presiding judge of the Texas Court of Criminal Appeals since the uproar
began after Michael Wayne Richard was executed. At the heart of the
charges against her is whether she denied Richard the ability to file a
late appeal in the hours before his execution.
Keller received a phone call at 4:45 p.m. the day of Richard's execution
from a court staffer asking if the court would stay open past its normal
closing time for Richard's lawyers, who were running late with an appeal.
Twice during the conversation Keller said no.
A hearing by the State Commission on Judicial Conduct which can still
vote to remove Keller from office, reprimand her or dismiss the charges
entirely has not been set. But Keller's attorney, Chip Babcock, said the
judge was "gratified" for Berchelmann's report.
Babcock said he cannot imagine how commission could vote to remove Keller
given how thoroughly the report says Keller did no wrong. He said he
expects all charges to be dismissed.
"It's a 100 % complete validation of her," Babcock said.
In his 16-page report, Berchelmann stopped short of entirely excusing
Keller for closing her court, calling the decision "highly questionable."
He said Keller should have been more helpful to Richard's attorneys about
how they could have filed an appeal.
Keller said during the trial that she wouldn't change her actions if she
could do it all over again. Berchelmann said that could not be true, and
that "any reasonable person" would realize that open communication
benefits the interest of justice.
"In sum, there is a valid reason why many in the legal community are not
proud of Judge Keller's actions," Berchelmann wrote.
The report also placed equal blame on Richard's lawyers. Berchelmann said
The Texas Defender Service, which represented Richard, embellished the
problems preventing them from filing a timely appeal before the court
Berchelmann also said Richard's lawyers did not tell the truth when they
told reporters that they were ready to file an appeal at 5:20 p.m., and
that they unwisely relied on paralegals instead of experienced lawyers to
communicate with Keller's court that night.
"Indeed, the TDS was quite successful in causing a public uproar against
Judge Keller, much of which was unwarranted," Berchelmann wrote. The Texas
Defender Service did not immediately return a message Wednesday for
Richard was executed for the brutal 1986 rape and slaying of Marguerite
Dixon, a Houston-area nurse and mother of 7. He was twice-convicted and
failed numerous appeals before the one drafted the night of his execution.
But on that morning, his attorneys saw a window of reprieve when the
Supreme Court agreed to review a challenge to Kentucky's 3-drug
combination used in executions. Texas uses a similar lethal cocktail,
which was the basis of Richard's final appeal.
(source: Associated Press)