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.  

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.  

 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.  

 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.  

 I have talked about this before.  Reasonable settlement offers lead to reasonable, or halfway reasonable responses.  When you are in the midst of a lawsuit, both sides have their "dander up."  It is hard to be reasonable.  But, it is just when it is hardest that it is most critical to appear reasonable.  Pursuing an employment lawsuit is very personal, but one also has to approach it like a business.  Because, if you lose, the perpetrator is doubly rewarded.  

This becomes critical when you want the other side to make a settlement offer.  You want them to make an offer, because you want a choice.  You want to choose between settling a case or going to trial.  Trials are always risky, no matter how good your case is.  So, before you go into trial, you want a choice.  Otherwise, you risk the worst scenario: the perpetrator of your discrimination is rewarded once when they discriminate and again when you go to trial and lose…..

 If you add your boss to your Facebook page, be sure to remember that when you start complaining about your job.  Workplace professors describe a British worker who apparently forgot she had added her boss.  She described him later as a "pervvy wanker" and said other unflattering things about him and her job.  The boss was not amused…..

 Most employees who come see me have thought twice, three times, even 20 times before they decide to file a complaint, or worse, file suit against the employer.  In his blog, Michael Maslanka cautions employers to think twice before going into "fight" mode when an employee files an EEOC charge or even a lawsuit.  That is good advice.  How many employees have told me that if the employer had only said they were sorry, or if only the employer did not do such-and-such, then they would not have called me? 

I have some friends who run a chain of sandwich shops.  A small chain.  They did not attend college.  But, they do much better than many so-called well-educated employers at avoiding lawsuits.  If you make a mistake, they tell you.  If they need to fire you, they tell you why.  They do not escort you out of their shop.  They treat even folks they fire with some measure of respect.  Avoiding lawsuits really is not all that difficult.  Minimizing the effects of a lawsuit is not all that difficult.  It can be done….

 One of the trials regarding the fight club at Corpus Christi State School started on Monday.  It has attracted national attention.  I have talked about this before. It is shameful conduct at the expense of some of our most vulnerable citizens.  But, let’s face it, we have the state school system we are willing to support. Our state school system exists as a place for those diagnosed with mental retardation.  The state school system has a history of many, various abuses.   Low wages and weak support lead to high turnover and the sort of climate that can produce a "fight club."