Thursday, August 20, 2009

Why Sharon Keller Must Go: In Her Own Words

Texas Court of Criminal Appeals Presiding Judge Sharon Keller testified yesterday that she would do nothing different if presented again with the same situation that caused the Commission on Judicial Conduct to initiate removal proceedings against her.

What arrogance! Knowing what she knows now, how can Keller claim with a straight face that the wiser path wouldn't have been to refer the decision on Michael Richard's appeal to Judge Cheryl Johnson, the "duty judge" who'd been pre-assigned to receive last-minute communication about the case?

If that's really true, if she'd do nothing different after her actions have drawn down formal misconduct charges and made the court a national laughingstock, then that's exactly why the Commission on Judicial Conduct should recommend her removal from office. Our judges need to have more sense than that.

RELATED THOUGHT: Somewhat bizarrely, Judge Keller appears in media accounts to believe that her accusers and "critics" that matter are the appellate attorneys at the Texas Defender Service. That's borderline delusional. She's in the midst of removal proceedings by the friggin' State Commission on Judicial Conduct, not TDS. The SCJC is a constitutionally established entity.

SCJC members include Sid Harle, a Republican district judge from San Antonio, tort reformer Janelle Shepard, and inveterate jail-builder County Judge Joel Baker from my hometown in Tyler. With the Texas Supreme Court and the Governor accounting for most of the 13 appointments, the SCJC is not a group likely to carry much water for the Texas Defender Service. More influential, perhaps, were the 130 Houston lawyers who filed a formal complaint.

Like a lot of defendants, Keller doesn't seem to grasp how serious are the allegations against her, or even who is making them. In a situation that should be easy to minimize, it's pure hubris for her to defiantly boast that she'd do the same thing again and blame the TDS. A little humility on her part might allow for room to forgive what she says was an unintentional outcome, but her pride has interfered with her better judgment. Indeed, maybe that's exactly what happened back in September 2007 that got her in trouble in the first place.


Slow Joe said...

Whether Keller should be a judge or not is one thing.

But another thing is brutally clear: TDS failed their client spectacularly. They are not serious attorneys. That the public knows Keller's name, but not the name of the attorney whose computer failed (Greg Wiercioch?), is unfortunate. The attorneys who failed their client should be known far and wide as people who cannot be counted on, even in a matter of life and death, to even show up on time.

I'm not a fan of Keller, and if she knew that this was a last minute death penalty appeal, it's amazing to me that she didn't consult Judge Johnson.

Even more pathetic, however, is that TDS also failed to do so. After all, the murderer was not Keller's client... he was TDS's client.

Anonymous said...

The cheese done slid off this woman's cracker.

Robert Langham said...

Never a bad idea to remove any politician, especially career folks. There are no indispensable people in THIS system.

And the guys family ought to sue his lawyers as well for their last minute dog-ate-my-computer ineptitude.

Are there no competent people at all? Or has the system grown so complex that no one can negotiate it?

Anonymous said...

Keller did nothing wrong other than state an obvious fact--that fact being that the clerk's office closed at 5:00.

Richards' lawyers had YEARS to file the lethal injection claim at issue in this instance. David Dow and the Defender's service had in fact filed this exact claim several times in the years prior to Richards' execution on behalf of other death row inmates. That information is easily verifiable. Just do a Google Search with David Dow's name and you'll pull up several media reports where Dow was asserting the same claim years beforehand. All he had to do was "cut and paste" the argument into a new pleading for Richards.

The fact that TDS claims it was forgoing the lethal injection claim in favor of a mental retardation claim is complete BS. Any good criminal appellate attorney--especially capital appellate attorneys--know that you need to assert all potential claims in order that those claims might be preserved for later appellate review. If they're not timely asserted, they can be deemed waived. There is no legitimate excuse for waiting until the 11th hour to assert a claim that could have been asserted days, weeks, months, or even years earlier.

The fact of the matter is that Keller has become a favorite target of the anti-death penalty establishment and media due to her conservative rulings. Let us not forget that she is an ELECTED public official and has been consistently reelected by overwhelming majorities. The vast majority of the voting public likes the conservative approach that she brings to the bench.

The bottom line is that death penalty attorneys feel that they don't have to follow the same rules that apply to other lawyers. Their favorite mantra is that "death is different." Well it may be different in the final outcome, but there's no excuse for the lawyers engaging in "gamesmanship," pushing ethical bounderies, and otherwise not following the rules just because they believe the "end justifies the means."

This whole thing literally wreaks of an underhanded and well orchestrated effort to take out a law and order judge (a judge who was merely enforcing the normal office hours of the freakin' clerk's office) --something liberals and anti-death penalty advocates have been unable to accomplish through our state's democratic process.

Slow Joe said...

Robert, I hate to see that Keller indeed knew this was a death penalty matter and refused to refer the matter to Judge Johnson. Sickens me to my core that this person would preside over our highest court.

You're right that this is a case about arrogance of an entrenched politician.

I'm not sure what Richard's family has to sue over. It's a good thing that this guy was executed, and there's no way he wouldn't have been. The appeal was bullshit, after all. This guy raped and killed a sweet old lady after meeting her kids. He stole her stuff and showed no remorse. He admitted what he did when the evidence against him was very, very strong.

This isn't about the death penalty, but thank goodness Keller didn't let someone die who had some kind of reasonable reason to delay justice even further (than 23 years). Dumb luck on her part, but I'm glad Richards is dead.

I agree that all defendants should get a fair trial, but did TDS really believe this man getting a lethal injection was cruel? Their lack of professionalism may indicate that they take that idea as seriously as I do. Richards had his day in court. He is not the victim of Keller's attitude. The citizens of Texas who expect a judiciary that doesn't embarass itself and behaves with dignity are the victims here.

Portly said...

I see a long series of mistakes:

Mistake #1: TDS attorneys screwed up the appeal by not starting early enough to complete it on time.

Mistake #2: While the TDS attorneys were busy trying to finish they asked an inexperienced staffer to arrange for after-hours filing.

Mistake #3: Both the court clerk and the court's general counsel fail to follow the custom of conferring with the duty judge.

Mistake #4: Judge Keller was deliberately unhelpful. I think the fact that she called Marty back at 4:59pm shows she knew she was being deliberately unhelpful and maybe even that she knew she should have referred the caller to Judge Johnson.

Mistake #5: TDS attorneys failed to instruct the inexperience staffer to follow the after-hours filing protocol. Clearly the attorneys don't actually believe the staffer's report that the court was closed to them because they continue working on the appeal for another hour until 5:50pm before attempting to contact the court.

Mistake #6: Keller failed to inform her colleges of the call when the lack of any filing was discussed in the days following the execution.

Mistake #6: TDS attorneys exaggerated (lied) when questioned by the media.

Mistake #7: Media is so captivated by the "we close at 5" angle they go to press without fact-checking the TDS claims.

Mistake #8: Once it was already all over the papers the TDS could have come clean but instead they answered follow-ups with more lies to cover op the initial lie: They lied about the computer problems, about the extend of their efforts to file, about the response of the court, about the length of they needed the court to stay open, and about the length of the appeal itself. They even lied that the Baze cert was a surprise.

Mistake #9: Bloggers, especially those who also happen to be Houston Criminal Defense Attorneys, piled on the effort to burn the witch. This group would usually be the ones to ferret out facts missed by the mainstream media but they missed it maybe because of years of pent-up anger over Keller's other nasty opinions. Soon editorials and petitions all flow from the TDS lies.

Mistake #10: Keller makes a fool of herself by asking for a specific high-dollar court appointed attorney while claiming to be destitute.

Anonymous said...

The accusers and critics you ridicule Judge Keller for remarking upon were TDS lawyers in the sense that Keller was saying that TDS lawyers released misleading and false information that was designed to result in just what happened here: a bunch of people getting upset with her and filing grievances. Your suggestion that the SCJC is the real accuser here, and that Keller is delusional for not recognizing that is simplistic. If a man accused another man of robbing him and caused that man to be arrested, would you expect the innocent arrestee to blame the police or the liar who made the false report?

Keller gets a call at home after a 10-hour workday (yes, she was home before 5, but had already worked 10 hours that day, according to the New York Times story.) She is asked if the clerk's office should stay open after 5 so that lawyers can file an appeal that is undoubtedly frivolous and could have been filed earlier in the day but wasn't because that would have left too much time for the judges to rule in advance of the execution. Keller says the clerk's office closed at 5. Why should she have instructed the clerk to inform the defense attorneys on the proper way to file after hours documents, when Dow is supposed to be a capital appeal expert? Dow knew the Supreme Court was on the cusp of deciding whether to review the lethal injection protocol. His brief was undoubtedly ready to go a month before the Supreme Court issued their grant of review. instead of filling in the date of the grant and printing it off that morning, they waited until nearly the close of business, and then gambled that the clerk would stay open for them to delay the filing a little longer to make sure the Court wouldn't have time to hear the case that day and ensure a delay in the execution. You are just mad because Keller didn't want to play that game. Why should she have done anything differently? Because she should have anticipated that the defense would attempt to lie and mislead people into thinking that she had done something wrong when she didn't? Her mistake was in having too much trust in the knowledge, honesty, and integrity of capital punishment defense lawyers.

Gritsforbreakfast said...

11:59, the mistake in your reasoning lies in this statement: "She is asked if the clerk's office should stay open after 5 so that lawyers can file an appeal that is undoubtedly frivolous ..."

If indeed, as you assert, part of her reasoning was that the appeal was "undoubtedly frivolous," then she was passing judgment without having seen the brief and was clearly, perhaps intentionally usurping the role of the duty judge. That can't be part of the equation if she wants to claim (and it's her central defense) that this was an administrative, not a judicial decision.

Also, you say "You are just mad," but once again, I filed no complaint with the SCJC, I didn't independently investigate the allegations as their staff did or vote to initiate removal proceedings as did the SCJC board.

As evidenced by Portly's comment, you can critique TDS all you want but it shouldn't blind you to Judge Keller's failure to follow the rules. Two wrongs don't make a right.

Anonymous said...

Yikes, so much for equal justice, and Justice is blind.. Did she learn nothing from her bias'd agenda?

Anon 10:51 Perry has been re-elected too, does that make him the best person for the job, no, it means that his opponents were either a joke, or had more baggage. I mean come-on.. Kinky Friedman!?! As far as elected Republicans not being able to be unseated by Democratic elected's, why is it the zoning changed not too many years ago when things were looking to be tossed up in the old guard. Just another underhanded trick to stop seats from being lost in the Republican dynasty here. Personally, I think we need to pressure our elected officials for term limits of no more than 8 years for rep's and governor and 6 terms for Senator. Atleast then we have a CHANCE to get new ideas and less corruption in office.

Anonymous said...

In defense of the TDS attorneys, while the lethal injection claim may have been considered and rejected earlier in Richard's case, when the US Supreme Court granted cert in the Baze case THE VERY MORNING of Richard's scheduled execution, that changed the legal landscape considerably. It would have been ineffective of them NOT to file something in light of this new development. HOWEVER, where I have a problem is that once the paralegal was told "no", the lead attorney should have picked up the phone. But hindsight is 20/20 and Keller's trial is not about what TDS did or didn't do. It is about her failure to follow established protocol. Period.

Anonymous said...

Everyone expected Baze to be one of the first if not the first case out in the fall session then the schedule came out in advance and confirmed it. TDS has plenty of time to prepare in advance.

The TDS attorneys didn't even believe the paralegal that the court was closed since they kept working on the draft until they finished at 5:56pm. She wasn't even a real paralegal.

TDS attorney Dow had a history of filing late on purpose to increase his chances of getting an automatic 30 day stay to review the filing. The CCA even changed their late filing rules because of these types of games.

henry young said...

Hey, she stood up for what she believed in, I commend her for that…she will get her respect back in due time. I have faith.

Slow Joe said...

"It is about her failure to follow established protocol. Period."

It may be that way for you, but the established protocol was followed to some extent, albeit stupidly. To me, this is yet another example of lazy sleazy and stupid attorneys failing their client by playing games.

Filing late is a trick. No one's computer broke. These lawyers think the system is easier to manipulate in death penalty cases, and didn't follow the rules. Lawyer should respect the court and their clients enough to follow the rules, show up on time, and make the right phone calls if something goes wrong. TDS is a disgrace. That's what this trial is about to me.

While the blog calls Keller "bizarre" for continuing to see TDS as her enemy, it seems rather obvious why that's the case. They lied about a judge's behavior. That's amazing, and it may save Keller. I don't want judges who act like Keller, but I also don't want lawyers who take advantage of mercy to break rules.

Scott Pawgan said...

Slow Joe, I do not know how you can say the TDS lawyers were playing games. The Blaze decision to grant Cert (which mind you does not mean they decided the issue, only they were agreeing to look at the issue) came out that morning. Until that moment, the lethal injection issue had been litigated in Texas and was continually overruled in Texas Courts.

I don't know if you have ever done one of these last minute writs trying to save an execution, but they are not documents that can be done in 5-10 minutes. Many of them take hours and hours to prepare because you have to be ready to go to next level, federal Court, to get relief. If you miss something in lower Court you can't raise it in Federal Court. Technically that is what doomed Richards, that since his Application was not filed in State Court, by law the Federal Courts could not have reviewed the writ to be able to grant cert.

Now, lets look at the timeline the TDS lawyers had to work with. The decision on Cert came out roughly 11am to noon local time. That gave the TDS 5-6 hours to get together a legal document that generally takes 12+ hours to complete. While on the calendar for the USSC, the TDS had no idea the decision would be that day. They were rightfully focusing their resources, until the moment cert was granted on what they thought was a viable Atkins claim.

It is fairly common for high courts to keep staff on file the entire night up and until the time of an execution. The US Supreme Court has a "death clerk" which is actually a group of clerks assigned to capital cases, that one will be assigned to stay up until the moment the execution is scheduled just in case any last minute stays or petitions are filed.The assigned CCA judge was staying late awaiting documents to be filed that never came because Keller inexplicitly closed the clerks office.

There was nothing frivolous about this petition once cert was granted in Blaze. Richards is the only case in the entire country that did not receive a stay. How proud as a state would we feel if the Supreme Court had eventually decided Blaze differently and we would have killed a man that court would have ruled never should have died.

This is my biggest problem with Keller. She never understands that if a decision in a capital case is wrong, there is no opening the door to the prison, releasing the inmate and saying, "oooops, sorry, we goofed."

Anonymous said...


The decision came out 8 a.m. EDT or 6 a.m. local time. Dow didn't even roll into the office until 2:45 p.m.

Scott Cobb said...

Keller could have avoided being charged with misconduct and incompetence, if she had responded to Ed Marty when he called her at 4:45 pm on Sept 25 by saying "tell them the clerk's office closes at 5, but they can submit an appeal after 5 by directly contacting any judge on the court who is willing to accept the appeal. Let them know that Judge Johnson is the assigned duty judge on the Richard case and inform Judge Johnson of their request to file an appeal".

Instead she said "we close at 5" and did not inform the duty judge as she was required to do under the Execution-Day Procedures.

Now, she says she would not do anything different, even though she has seen what the consequences were of her saying simply "we close at 5" and not informing the duty judge.

The New York Times wrote an editorial yesterday saying she should be removed: "at a hearing on Wednesday, she said in a crowded courtroom that if she had it to do again, she would do the same thing. That testimony is further proof of why Judge Keller needs to be removed from the bench."

The Republican Party should pressure her to resign and let the governor appoint someone who will restore integrity to Texas' highest criminal court.

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Anonymous said...

I was against Keller when this first began and thought she had done wrong. I no longer think so.

It is obvious that defense attorneys and the TDS crew are trying to get rid of a law abiding judge.

As far as Richard's family suing, I suspect there is little damages for them.

Now, how bout some disbarment and grievance proceedings against some very incompentent TDS lawyers. The Richard's family might have some sort of suit against them, however, for ineffective assistance.

A first year lawyer would have known to dash off in handwriting a two page motion to raise this issue, and could've walked that in the door of the CCA until the more lenghty amended motion could be filed.

Tex said...

Don't lawyers have an ethical obligation to not handle cases they are not qualified to handle?

Terry Lenamon said...

As a Florida Board Certified Criminal Defense attorney, death penalty qualified and with years of experience representing clients facing the death penalty, I've been watching the Keller proceedings with interest.

And, here's my question: what if the U.S. Supreme Court had come down the other way in the Baze case?

Interesting to think about, and I've been pondering it over at my blog