Texas Judge Sharon Keller is facing 5 misconduct charges based on events that occurred in her court the day of a scheduled execution.
The problem i have with this case stems from the fact that the only source of information available to determine whether or not the Judge acted incorrectly primarily come from a very biased source
: the Attorneys representing the murderer scheduled to be executed.
An article from a Texas Attorney,
Mary Alice Robbins, is probably the least biased source of information on the event that lead to the charges.
Here are the basic facts:
On the morning of September 25, 2007 the U.S. Supreme Court agreed to hear a case on whether or not the method of execution used in Kentucky was Constitutional. The case had bearing on an execution slated to occur on that date in Texas, since Texas uses the same method of execution.
The Attorneys representing that convicted murderer, Michael Richard, never filed an appeal with Judge Keller based on the Supreme Court taking this Kentucky case and blame the lack of filing on actions taken by Keller's courtroom. (The attorneys being the Texas Defender Service).
The accusation stems from a series of conversations between the TDS offices and the Court of Appeals.
The paralegal at the TDS ofices called the chief deputy clerk at 4:40 pm, told him that the TDS was experiencing computer problems and asked if they could file after 5:00. The clerk apparently checked with someone at the Court of Appeals and called back telling TDS that the Court closed at 5:00. A TDS paralegal then asked if they could file electronically, but electronic filings weren't accepted by the Appeals Court at that time.
The clerk the TDS paralegal talked to denies being told that TDS was having computer problems. The clerk apparently contacted the legal council for the Appeals Court, Ed Marty, about staying open past 5:00, who in turn contacted Keller. There is dispute as to whether Marty or Keller knew exactly what the appeal in question concerned. Keller apparently made the call not to keep the clerk's office open past 5:00.
The paralegal called the clerk again about 6:00 and said she was coming over with the appeal, the clerk basically reiterated that they were closed.
The paralegal said she though that meant the Court of Criminal Appeals was closed to the appeal, not the clerk's office.
The rule for appeals in Texas says that the appeal can be filed with the clerk, or a judge willing to accept it. An attorney for TDS said he thought the comment "we're closed at 5" meant that Keller was not willing to accept the appeal.
Some other nuggets
- The official complaint against Keller repeatedly charges her with failure to follow execution-say procedures. This, despite the fact that the procedures were being developed at the time of Richard's execution, and weren't finalized until after the execution.
- There was a judge for handling filings related to the execution of Richard. That was not Keller. Under the execution-day procedures, that judge should have been questioned in regards to filings related to his case. Keller, as the head appeals court judge, handled questions of a more routine or general matter. (The act that Keller was contacted instead of the duty judge suggests the exact nature of the filing may never have been raised by the paralegal.)
- The Commission charged Keller with knowing the filing was in relation to a scheduled execution. (This may be very difficult to prove and may not even be a reasonable charge based on available information.) And based on the unwritten procedures, Keller would apparently have referred the TDS question to the duty judge if she knew the filing was on the scheduled execution.
- TDS could have filed a writ of habeas corpus with the Houston trial court asking for a stay of execution, based on the Kentucky case accepted by the Supreme Court. They did not do so. The stay would have been accepted by the Appeals Court due to another case before the court on lethal injection.
- Appeals Courts have judges that are given the duty to accept appeals outside the normal business hours. Usually appeals that involve some sort of emergency (like a scheduled execution). This alternative was never used by TDS.
Now, my opinion.
This looks far more like an example of death-penalty opponents with a grudge against a judge that has been a thorn in their side since being appointed to the bench. It also looks like the main problem may have been a lack of competence on the part of TDS than anything the judge did.
TDS apparently never made clear this was an execution related appeal. An execution related appeal would have been referred to a different judge. The fact that Keller was the judge that answered the question on late filing suggests the nature of the filing was never clarified by TDS.
TDS was very late in putting the appeal together. The execution was slated for that day and they didn't have an appeal already prepared so they could ensure it got to the clerk before the office closed at 5:00? It would have been easy to add the information on the Supreme Court taking the Kentucky case to such an already prepared appeal.
TDS never tried alternatives to filing with the clerk. As the rules for filing appeals sets out, a judge can personally agree to accept an appeal. TDS attorneys never asked to talk to Keller personally to see if she was willing to accept the appeal. It was all left to a paralegal. They also never filed for a writ of habeas corpus with the trial court.
TDS attorneys apparently didn't know the execution-day procedures used by the Appeals Court. TDS should have known that a judge was appointed to handle execution related filings and talked directly to that judge. They failed to do so. Keller had no reason to believe that she would be asked about filings related to the scheduled execution when there was another judge specifically given the duty to handle that task.
When there is a problem like they one that occurred with TDS's appeal in this case, the problem probably lies with the side that has been proven to be incompetent. That would be TDS, not Judge Keller.
It's the lawyers of at TDS that need to be charged with failure to adequately represent a client, not Keller for misconduct.
The fact that Keller has been charged despite TDS's transparent incompetence in this case strongly suggest that the charges are politically based. (And Texas has a long history of politically motivated prosecutions of public officials, usually Republicans, which would include Keller).
