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Cheryl Johnson

Second lawsuit filed over bogus SOS advisory

Keep ’em coming.

Still the only voter ID anyone should need

A group of Latino voters is suing top state officials who they allege unlawfully conspired to violate their constitutional rights by singling them out for investigation and removal from the voter rolls because they are foreign-born.

Filed in a Corpus Christi-based federal court on Friday night, the suit alleges that the decision by state officials to advise counties to review the citizenship status of tens of thousands of registered voters it flagged using flawed data runs contrary to the 14th Amendment of the U.S. Constitution and the federal Voting Rights Act because it imposes additional requirements to register to vote on naturalized citizens.

Joined in the suit by several organizations that advocate for Latinos in Texas, the seven voters suing the state all obtained their driver’s license before they became naturalized citizens and subsequently registered to vote.

Their lawsuit — which names Republican Gov. Greg Abbott, Texas secretary of state David Whitley, attorney general Ken Paxton and one local official as defendants — asks the court to halt the state’s review and block officials from taking any action against them based on their national origin. It also asks Whitley to refrain from targeting new citizens for voter purges and to withdraw his current list “unless and until it acquires information that the voters are currently ineligible to vote.”

[…]

One of the plaintiffs — Julieta Garibay — has confirmed with Travis County election officials that she is on the list they received from the state. Five others believe they were included on the state’s list. Another plaintiff — Elena Keane — received a notice from Galveston County stating “there is reason to believe you may not be a United States citizen” and asking for proof of citizenship within 30 days to remain on the voter rolls.

Two days later, Keane received a second letter stating she had received the first letter in error.

Here’s the latest on that first lawsuit. This one was filed by MALDEF on behalf of the voters. The ACLU of Texas and the Texas Civil Rights Project have threatened to sue if the SOS doesn’t rescind the advisory, so we may get a third filing before all is said and done. Keep at it and don’t let up, I say. The Chron has more.

Same old Sharon

I’ll say this for Sharon Keller. She is steadfast in her beliefs, and there is nothing you can say to her to make her waver from them.

The presiding judge of the Texas Court of Criminal Appeals who refused to keep open the clerk’s office before a last-minute death row appeal could be filed told a crowded courtroom Wednesday she would do nothing different if presented again with a similar request.

“Yes, that is correct,” Judge Sharon Keller said from the witness stand when asked if she would respond the same as Sept. 25, 2007, the day death row inmate Michael Richard was executed after being denied a request to file an appeal after 5 p.m.

Immediately after her answer, special prosecutor Mike McKetta said, “Pass the witness.”

That’s pretty much where we started with all this, isn’t it? Keller thinks she’s done nothing wrong, she’d do the same thing tomorrow, and who cares what the rest of us think? Well, it does matter what the State Commission on Judicial Conduct thinks, and it seems she recognizes that. But don’t expect anything but the same ol’ Sharon if they let her off, because as far as she’s concerned she’s got no lesson to learn. Grits noticed the same thing, and says this is exactly why the Commission should remove her from the bench. I’ll say again, I like my judges to have a healthy dollop of self-doubt and introspection in them. Take that out, and what you get is, well, Sharon Keller, who thinks she can do no wrong. She’s wrong about that, and I agree with Grits.

One of the things that came out of yesterday’s testimony was an admission by Ed Marty, the former general counsel for the Court of Criminal Appeals, that he couldn’t really remember if he’d mentioned the phone call asking for the clerk’s office to stay open late to CCA Judge Cheryl Johnson, the assigned judge for Michael Richard’s execution. That contradicted earlier testimony cited by the defense. I thought this bit was rather poignant:

After Keller finished testifying Wednesday, prosecutors played a taped deposition from Marty before resting their case.

When asked if there was anything he would have done differently about the conversation, Marty said he had hoped Keller would agree to let the clerk accept the filing late, but once he received her answer, he felt there was nothing more he could do. He wasn’t allowed to contact litigants unless they called him, he said, and the chain of command prevented him from approaching another judge.

“I regret that I didn’t really know how to advise Judge Keller,” he said, adding that he still isn’t sure what he could have done once she gave an answer.

Since then, the only solution he’s been able to come up with is to have placed emphasis on the word “clerk” when relaying the message to deputy clerk Abel Acosta that “the clerk’s office closes at 5.” The emphasis, he said, might have been “a hint to (Richard’s attorneys) that that’s magic language.”

Yeah, well, as we know several things about the court’s procedures have changed since this incident, such as actually writing them down rather than relying on oral tradition or osmosis. Clearly, the procedures had to change because we know Sharon Keller never will.

Other items of interest:

More from Keller’s testimony in the Focal Point blog: Part One, in which we learn that Keller expected court personnel to know what to do regardless of whether or not they’d actually been formally told what to do; Part Two, in which Keller explains that her claims of judicial immunity in a suit filed by Richard’s wife don’t mean she was making a judicial ruling when she told Marty to reject the late filing (more on that at Tex Parte); and Part Three, in which we get into the “I’d do nothing different” stuff. Keller also responded to questions from her attorney, Chip Babcock; you can read more about that in the Statesman story and in this last Focal Point post, in which we learn once again that Keller and Johnson are so not BFFs. The defense will call two witnesses today, at which point it should be all over but for closing arguments. The Contrarian has more.

Keller testifies

Day Two of the trial of Judge Sharon Keller had Keller herself testifying.

Rapid-fire questions from Austin lawyer Mike McKetta, acting as the prosecution, drilled into the heart of the charges against Keller — that by violating the court’s established procedure, the judge denied death row inmate Michael Richard his day in court and brought discredit upon the judiciary.

The questioning put Keller on the defensive, a contrast from earlier testimony that saw defense lawyer Chip Babcock attack the truthfulness of witness David Dow, Richard’s primary appellate lawyer.

I’m going to point you now to the Focal Point blog, which has nicely extensive recaps of both Dow’s testimony and Keller’s testimony, as well as the testimony of Texas Defender Service paralegal Liz Waters, who went first. Texas Lawyer and Tex Parte also have more. Reading all of this, I get the impression that Keller was at best not exactly troubled by the subtleties of her job description, and that if she had given a moment’s thought to what was actually happening, in the context that it was happening, all of this could have been avoided. Whether that’s enough to get her removed from the bench or not I couldn’t say, but it seems clear to me that her actions, or lack of same, were the root cause here.

Putting it simply, her defense seems to rest on the notion that she was merely answering a question about whether or not the clerk’s office was closed, she wasn’t addressing the matter of whether or not the court would consider an appeal that came in a bit late.

McKetta began his questioning of Keller by focusing on the Court of Criminal Appeals’ execution-day procedures, which state: “All communications regarding the scheduled execution shall be first referred to the assigned judge,” who is chosen by rotation to handle all last-minute filings in capital cases.

The policy specifically lists “pleadings, telephone calls, faxes, e-mails and any other means” as pertinent forms of communication.

Even so, when the court’s then-general counsel Ed Marty telephoned Keller at 4:45 p.m. — saying Richard’s lawyers had requested to file an appeal past 5 p.m. — Keller did not refer the request to Cheryl Johnson, the judge assigned to Richard’s case.

Keller testified that she did not believe the request fell under the court’s rules because it was an administrative matter — a question about whether the clerk’s office should stay open late — and not a substantive question relating to the merits of Richard’s case.

“I think it’s a close call, but I think that’s right,” Keller said.

[…]

Keller also acknowledged that the court’s nine judges had been told, via an e-mail from Marty, that Richard’s lawyers were preparing an appeal based on that day’s news from the U.S. Supreme Court, which accepted a case challenging lethal injection as cruel and unusual punishment.

McKetta also attacked Keller’s assertion that she only closed the court clerk’s office, not the court, because appellate rules allow lawyers to file briefs with any judge willing to accept them.

McKetta, however, noted that the same appellate rules also state: “Parties and counsel may communicate with the appellate court about a case only through the clerk.”

Once again, I will say that if this were an issue before the Court of Criminal Appeals, there is no doubt in my mind that Judge Sharon Keller would reject the logic that Defendant Sharon Keller is using. Judge Sharon Keller would insist that Defendant Sharon Keller should have known better and acted accordingly, and is deserving of no relief from her court for not having done so. I can only wonder if this has even occurred to her.

There will be more testimony from Keller today, and after that I presume the prosecution will rest and the defense will call whatever witnesses it has. It’s possible things could be wrapped up by the end of the day, or at least that testimony will be finished and summary arguments will be made tomorrow.

The Keller trial, Day One

If you want a detailed blow-by-blow description of the trial of Court of Criminal Appeals Justice Sharon Keller, go to the Statesman’s Focal Point blog, which has been liveblogging the procedure. Here are links to various entries:

Opening statement by the prosecution.

Opening statement by the defense.

Possible bombshell from Ed Marty, the Court of Criminal Appeals general counsel on the day in question.

Phone calls to the court.

To me, the most interesting bit in all this comes from this Chron story. It has to do with what Ed Marty may or may not have said to CCA Justice Cheryl Johnson:

[Keller’s] defense attorneys claimed that Judge Cheryl Johnson, the judge on duty the night of Richard’s execution, knew Richard’s attorneys were trying to file an appeal. According to Babcock, court general counsel Ed Marty has said in a deposition that he told Johnson that Richard’s attorneys were running late.

Johnson, the first witness called, denied that conversation took place.

“If I had known that they asked for more time, I would have granted it,” Johnson said “It’s an execution.”

On cross-examination, Babcock produced a a floor plan of the court hallway and a tape measure to determine where Marty was standing about 5:30 p.m. that night. Johnson said she and other judges were talking about their surprise that no appeal had been filed while Marty stood a few feet away.

Babcock said it was during that conversation that Marty mentioned Richard’s lawyers had tried filing appeal. Johnson said that didn’t happen.

“So (Marty) stood there for five minutes in a hallway with no bathrooms, nothing to do, not trying to join your conversation. Just standing there loitering. Is that correct?” Babcock asked.

“Yes,” Johnson replied.

I’m thinking that whatever happens to Keller, she’s not going to be on Johnson’s Christmas card list any more. Grits has more.

How about that CCA’s reputation for fairness?

This is just precious.

The longest serving Judge on the Texas Court of Criminal Appeals, Lawrence “Larry” Meyers, has announced he is seeking re-election in 2010. The Court has been called a national laughingstock by one of its other members because of the actions of Sharon Keller and that was years before Keller made it even more of a laughingstock by closing the court in 2007 and refusing to accept a legal appeal from a person about to be executed.

[…]

Despite the poor reputation of the Court of Criminal Appeals, Meyers said in his press release, “I am seeking re-election to the Court to continue to be an objective voice and ensure that we maintain our reputation for delivering fair and just opinions,” said Meyers in announcing his candidacy for re-election.

Yes, the CCA’s well-known reputation for fairness and justice, which is somewhat like Wall Street’s reputation for transparency and honest accounting. As Michael Landauer suggests, it is to laugh.

Link via Grits, who notes that Justices Michael Keasler and and Cheryl Johnson will also be on the ballot next year. Only Keasler had a Democratic opponent in 2004, and that was JR Molina, so it really doesn’t count. Last year, the Dems left on CCA judge unchallenged, ran Molina against another, and a good candidate in Susan Strawn against the third. Strawn lost by six points 51.64 to 45.53, in the best showing for a Democratic CCA candidate since then-incumbent Charlie Baird lost with 46.03% in 1998. The Dems have been slowly but steadily gaining ground in these statewide judicial races – Supreme Court candidate Sam Houston did even better last year, getting 45.88% and losing by five points – and it’s not unreasonable to think that some good quality CCA candidates next year could score an upset or two. They’ll have Sharon Keller as an issue whether or not the State Commission on Judicial Conduct boots her off the bench. Grits has suggested before that judicial races will be the spearhead of a Democratic renaissance in statewide elections, and while I don’t necessarily agree with that – I think any reasonably well-funded Dem will have a fighter’s chance in the Governor’s race if Rick Perry survives the primary – I certainly do think that these races are vital and must be taken seriously. The last time the Dems ran three non-Molina candidates for the CCA was 1996. That can’t happen again.

Keller gets an extension

News item:

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, now has until March 24 to answer charges that she violated her judicial duties by declining to accept an after-hours appeal from a death row inmate in 2007.

Keller requested, and received, an extension to a 15-day response deadline after the State Commission on Judicial Conduct filed the charges last Thursday.

The next step in the process — appointing a sitting judge to serve as special master for Keller’s trial — cannot take place until the response is filed.

Evan Smith speaks for me:

Sharon Keller couldn’t make her deadline to file a response to the State Judicial Commission’s charges against her, but no one “closed” the “office” at “5 p.m.” […] It goes without saying that Michael Richard should have been so lucky.

Yeah. What he said.

Meanwhile, on a related note:

I doubt that many people will shed tears, but Texas Court of Criminal Appeals Presiding Judge Sharon Keller may have to pay her own legal expenses to defend herself against charges she improperly shut the door on a condemned inmate’s last-gasp appeal.

The judicial misconduct charges brought against Keller last week by the Commission on Judicial Conduct could result in her removal from office and, if she fights them, thousands of dollars in legal bills.

Officeholders often can use political funds to pay lawyers. But Keller, according to a filing last month with the Texas Ethics Commission, has no money in her political account. State law also prohibits Keller, who won’t be up for re-election until 2012, from raising any political money before June 2011. And any donation of legal services could be construed as an illegal political contribution.

The judge’s attorney, Chip Babcock, has asked the judicial conduct commission to pay her legal expenses.

If the answer is no, will Keller fight, or resign?

I say if the commission agrees to pay for Justice Keller’s defense, it should be done in the same fashion as it would be for any other indigent defendant. If Attorney Babcock is willing to work at that fee schedule, then she can continue to employ him. If not, I’m sure there are plenty of other attorneys who could use the gig. Given the nature of the cases that often come before the Court of Criminal Appeals, and the consideration Justice Keller is known to give them, I think this is perfectly just.

Finally, Vince reports that Keller’s fellow judges just want her to go away.

Speaking on condition of anonymity, [a source closely connected with the Texas Court of Criminal Appeals] told Capitol Annex that several justices are not eager to take part in a trial proceeding as part of the Commission on Judicial Conduct complaint against Keller because it would result in further revealing the content of private meetings and closed door activities–many of which were revealed in the publicly distributed notice of formal proceedings, much to the chagrin of judges and longtime court employees. Each of the court’s other eight justices would most likely be called as witnesses. Without question, Justice Cheryl Johnson would be a key witness for the TCJC.

According to the Court, the justices are fearful that a public trial for Keller could expose the court to more significant media scrutiny, could irreparably damage relations between the justices necessary for the court to function properly, and could hurt the justices politically during a time when Democrats have a better than average shot at capturing statewide offices. The source advised that at least one justice is fearful that some or all of the Court of Criminal Appeals Justices could be subject to similar judicial conduct complaints as the one now facing Keller simply because the other justices did nothing to stop Keller and did not more closely examine Keller’s actions, the source said. Another justice is reportedly worried that increased publicity could force U.S. Attorney General Eric Holder to launch an investigation into whether or not Michael Richard’s’ civil rights were violated–further exposing the court and the justices to a level of public examination they are unaccustomed to.

Much as I want to see Keller go, I think I can wait until after the formal public hearing has been held. Let a little sunshine in, I say.