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Judge Sharon Keller has been issued a public reprimand for her conduct involving the attempted appeal of death row inmate Michael Richard.  See San Antonio Express News report.  Judge Keller sits on the Texas Court of Criminal Appeals, the state's highest court for criminal cases.  As readers will recall, Judge Keller refused Richard's lawyer's last minute request to keep the clerk's office open until they could file an appeal.  The State Commission on Judicial Conduct investigated.  The Commission has now issued her a public reprimand.  This sanction is much less than the requested sanction that she be removed from office.  

Judge Keller violated known protocol for the court, as I explained in earlier posts.  This story demonstrates the unpredictability of all litigation.  On any given day, even the best judges will make a bad call.  That is why lawyers discuss settlement.  As my former judge used to say, the worst settlement agreement is better than the best trial.  He meant that no matter how strong your case may be, you should consider settlement.  Because, one never knows what may happen at trial. 

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Judge Sharon Keller's lawyer made his final arguments to the Texas Commission on Judicial Conduct.  He argues defensively that the protocol she was expected to follow was not in writing at the time.  He said the TCJC has completed a poor investigation.  He accused the lawyers for the executed killer, Michael Richard, of telling a "pack of lies" regarding the events.  

The prosecutor, actually a special counsel for the TCJC, argued that Judge Keller admitted that she knew the protocol, whether it was written or verbal. She admitted that she knew the protocol was mandatory.  The protocol required her to refer the lawyers to the duty judge, Cheryl Johnson.  Instead, she dealt with the lawyers' request for more time herself.  

As the reader may recall, the lawyers for Michael Richard encountered computer trouble in trying to file a last minute motion.  The motion had a fair likelihood of success.  Richard was to be executed the next day.  So, the motion was critical.  They called the Criminal Court of Appeals.  The CCA is the final appeals court for criminal appeals.  The defense lawyers were eventually referred to Judge Keller.  They asked for more time.  Judge Keller said no.  She should have referred them to the duty judge Cheryl Johnson.  Indeed, most courts would have allowed the extra time, just because of the final nature of an execution.  See earlier posts (and here) about Judge Keller.  As Judge Berchelmann said, this was a grievous sin by any public servant. 

In following this story, I tend to think Judge Keller is normally a concerned, dedicated judge, and rather conservative.  It may have just been this one time, but I tend to believe that on this one day, she was impatient with the process that allows defense lawyers in death penalty cases to file motions at the very last minute.  It may have just been a bad day, but she showed poor judgment that one day.  Even judges are human.  This is a good lesson to anyone seeking justice in court. Judges do make mistakes.  Litigation is unpredictable in part because judges (and juries) are human.  

As I tell my clients all the time, you can have the best case and still lose.  Here, Michael Richard had good basis for a motion.  But, the motion was never filed......

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 Judge Keller's trouble continue.  She still has a hearing in June regarding the execution and attempted appeal of Michael Richard.  And, now she has been assessed a fine of $100,000 for issues regarding her financial disclosure form.  See report.  The Texas Ethics Commission has levied a $100,000 civil penalty because she failed to disclose all of the sources of her income in 2007 and 2008.  She failed to disclose her ownership in $2.9 million dollars worth of property.  

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 Judge Keller of the Court of Criminal Appeals is not out of hot water, yet.  The Court of Criminal Appeals, of course, is the highest court in Texas for criminal cases.  So, her case is significant.  See San Antonio Express News report.  The special counsel appointed in her case recommended that she suffer some sort of discipline.  The Special master, Judge Berchelmann, had previously found her conduct deficient but said Judge Keller did not break any laws.  Well, as the special counsel points out, Judge Berchelmann was very critical of her conduct.  In the legal world, we are not supposed to violate custom or even unwritten rules without a good reason.  Most lawyers would suffer some sort of discipline from the bar association for such conduct.  So, the special counsel recommends that she be disciplined simply for violating protocol. 

Judge Keller's latest reaction is concerning.  Her lawyer, "Chip" Babcock filed objections to Judge Berchelmann's report.  He referred to Berchelmann's comments that Judge Keller showed poor judgment in not being more helpful as a public servant.  Judge Berchelmann said her failure to keep the clerk's office open was "highly questionable" and that failure was a reason many in the legal community are not proud of her actions.  Mr. Babcock commented that Judge Keller is not part of some "popularity contest among Texas lawyers."    

Judge Keller and her lawyer apparently do not "get it."  Judge Berchelmann was explaining as respectfully as he could that Judge Keller violated known protocol.  She did not violate any statute or law.  But, for a lawyer or judge, violating known, expected protocol is also serious.  "Discipline" in the legal world can include everything from a private letter of reprimand to suspension of the right to practice law.  It is bad enough that she did what she did.  It is even worse that she does not appreciate the gravity of her actions.  Judge are public servants, after all.  More is expected of them,. not less. 

As I have discussed many times, the background and experiences of a judge do matter.  Judge Keller spent many years in the appellate section of the Harris County District Attorney's office before becoming a judge.  So, she has done little actual litigation in her career.  It shows.....

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 It is concerning that Judge Keller says she would do nothing different if the same situation arose.  She is the same judge who years ago drafted an opinion regarding a man wrongfully convicted of rape.  DNA evidence exonerated the man after spending many years in prison.  When the appeal came through the CCA, she wrote the opinion saying that just because his DNA did not match the semen found on the victim, he could still have performed the rape.  She claimed that the man could have used a condom.  Such an opinion is so far from the reality that I know.  

Judge Keller worked for the Harris County DA office for many years.  Most of her time was spent in the appellate section.  Lawyers who do primarily appellate work are often just not exposed to the realities of witnesses who forget, prevaricate or simply make mistakes.  Appellate lawyers work with a cold record.  I spent 25 years in the Army Reserve and National Guard.  I was a combat arms officer.  It always seemed to me that combat arms soldiers had different views than some combat support soldiers.  Our exposure to different realities colored our views.  It is similar to clerics who spend little time as a pastor.  Such clerics often do not make the best bishops.  You need a certain background to understand the complexities of the human condition.  

Yes, a judge's background does make a difference.  

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 As often happens in trials, there is substantial dispute over what happened when lawyers for Michael Richard seeking more time.  The call went to Ed Marty, general counsel for the CCA.  He has given different statements about happened.  In one account, he says he told the duty judge, Cheryl Johnson, that the lawyers called.  In other accounts, he did not tell Judge Johnson.   He appears to acknowledge that he has memory problems.  He has retired and moved to Alabama. 

Judge Keller is consistent that Marty told her they were calling for more time and she simply responded that some entity (the clerk or the court) closes at 5:00 pm.  Judge Keller's lawyer emphasizes that the lawyers could have submitted a filing to any other judge.  But, the lawyers appear to not have been aware of that.  The general counsel was apparently careful not to tell the lawyers they could file with another judge - presumably to avoid charges of favoring one side over the other.  But, like Richard's lawyers, I believe I would expect a court to tell me how to file a late, critical pleading.  I would not expect to have to ask such a routine sort of question.  

In any event, a man's life hung in the balance.  Judge Keller's defense appears to essentially be that she simply provided information, an administrative act, not judicial.  That claim does contradict her defense in the civil suit that her act was judicial (thus relying on judicial immunity).  As is true in many trials, relying on hair-splitting is not a very effective defense.  I suspect Judge Keller will get some sort of reprimand.  

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 Well, Judge Keller admits she knew something.  She admitted that when the call came, she knew at a minimum that the lawyers for Michael Richard called about the execution and they were not ready to file something.  See the San Antonio Express news story.  That is pretty damaging.  Its common knowledge that shortly before a scheduled execution, lawyers will file something to try to stop it.  But, this was even more true since at the time the US Supreme Court was considering accepting a challenge to the lethal injection system.  

The big question will be, for pete's sake, she did not refer such a call to the duty judge, Cheryl Johnson.  Reading between the lines, it looks to me like she believed she was simply stating a fact.  But, if she knew at a minimum they were not ready to file something and it was very likely they wanted to file something, she had to know there was an issue of some sort - an issue that must go to the duty judge.  

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 I do not know what happened, but, yes, if a judge fails to follow procedure, then that is a problem.  The trial of Sharon Keller started yesterday.  She is presiding judge of the Court of Criminal Appeals.  That means, she is the chief judge for the highest court in Texas regarding criminal cases.  If she did know that attorneys for Michael Richard were calling for more time and she did not give them that time, then, yes, that would be a pretty clear violation of something.  

The trial is starting out not too well for Judge Keller.  Another judge on the Court of Criminal Appeals  disagrees with Judge Keller on a key fact: did anyone tell Judge Cheryl Johnson, the duty judge that day, about the call asking for more time?  Judge Johnson says no, no one told her.  If so, that would be a pretty clear breach of procedure. 

The State Commission on Judicial Conduct used to be a fairly weak organization.  But, some ten years ago, they started to truly enforce judicial ethics.  This is by far the biggest case they have taken on.  But, if the allegations prove to be true, it is one of the more egregious cases they have dealt with to my knowledge.  

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