death penalty news—-TEXAS

Jan. 20


Miscommunication led to disorder in the Texas Court of Criminal Appeals

The special master's report about Texas Court of Criminal Appeals
Presiding Judge Sharon Keller could hardly be more withering.

Her conduct "was not exemplary of a public servant."

She "should have been more open and helpful."

Her judgment "was highly questionable."

"In sum, there is a valid reason why many in the legal community are not
proud of Judge Kellers actions," special master David Berchelmann Jr.
wrote in a highly anticipated report released Wednesday by the State
Commission on Judicial Conduct.

Why, then, did Berchelmann conclude that Keller should neither be removed
from office nor even reprimanded "beyond the public humiliation she has
surely suffered" from being tried on ethics charges?

In his 16-page report, Berchelmann, a state district judge in San Antonio,
reasons that the Texas Defender Service was largely responsible for
mishandling a last-minute appeal on behalf of Death Row inmate Michael
Wayne Richard.

A Texas Defender Service lawyer made inaccurate public statements about
what happened, and that spun out of control in the media, spawning a
public uproar against Keller, Berchelmann wrote.

Though she could have and should have acted differently, he said, she
didn't cause the defense lawyers' errors.

Richard's case focused a harsh national light on Keller and her court in
2007 when his lawyers failed to get his execution stopped on the day the
U.S. Supreme Court said it would review the constitutionality of lethal

Keller declined to keep the court clerk's office open after 5 p.m. when
the lawyers were running late, and they didnt try to directly contact
Judge Cheryl Johnson, who was designated that day to handle any late
filings in the case.

The entire episode was a study in miscommunication but provided fuel for
Keller's longtime critics to lobby for her ouster.

In many of her actions and rulings, Keller comes across as rigid and
coldhearted, with too narrow a view of whats sufficient due process. The
Judicial Conduct Commission accused her of incompetence and conduct that
discredited the judiciary.

Richard was on death row for sexually assaulting nurse Marguerite Dixon
and shooting her in the head after stealing TVs from her Hockley home in

According to trial testimony, a Defender Service paralegal called the
court at 4:40 p.m. the day Richard was scheduled for execution to see if
paperwork could be filed with the clerk's office after 5 p.m., the typical
closing time. Ed Marty, the court's general counsel at the time, then
called Keller, who said "no."

But neither Marty, nor a deputy clerk nor Keller notified Johnson, who
should have been told.

The paralegal called the assistant clerk again at 5:56 p.m. but was told
the office was closed. No one from the Defender Service called Johnson or
the other 2 judges who had stayed late at the court.

Though the defense team had claimed computer problems prevented them from
having documents ready before 5 p.m., Berchelmann said the lawyers didn't
prove that. He called it "a crucial mistake" that the defense lawyers left
it to paralegals to contact the court and never themselves talked directly
with anyone at the court to find a way of filing last-minute papers to
stay the execution.

Yes, Keller should have told Marty to notify Johnson, and yes, Keller
should have called Johnson herself, the special master wrote. And at the
very least, Keller should have told her colleagues what happened,
especially the following day when they were puzzling over why Richard
hadn't filed an emergency appeal.

But even being a duplicitous colleague my word, definitely not his
didn't violate any rules or laws either, Berchelmann concluded.

The 13-member conduct commission now will set a hearing to decide whether
to discipline Keller or dismiss the charges.

Even though the special master characterized the "ordeal" as a learning
tool rather than grounds for sanctions, he didn't exactly let Keller off
the hook. "Although she says that if she could do it all over again she
would not change any of her actions, this cannot be true," he wrote. "Any
reasonable person, having gone through this ordeal, surely would realize
that open communication, particularly during the hectic few hours before
an execution, would benefit the interests of justice."

If Keller learned that lesson, it would be important to demonstrate it if
she intends to run for re-election in 2012.

(source: Column, Linda Campbell, Fort Worth Star-Telegram)