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Chip Babcock

Keller’s final appeal

You have to admire the tenacity, I’ll give her that much.

A special court of review plans to decide by Oct. 8 whether to dismiss a judicial ethics panel’s rebuke of Judge Sharon Keller or move forward with her appeal.

Keller appeared before the special court’s three-judge panel Monday to push for dismissal now, avoiding a three-day trial at the end of November over the rebuke from the State Commission on Judicial Conduct.

[…]

Chip Babcock, Keller’s lawyer, argued that the commission exceeded its authority in issuing the rebuke in the form of a “public warning.” Under Texas law and the state constitution, the commission could issue the harsher punishment of censure, but not a warning, he said.

“Your only choice is what we’re asking — dismiss this. Do not force Judge Keller to go through a new trial,” Babcock said during the hearing at the Texas Supreme Court near the Capitol.

But the three judges, chosen at random to sit on the review panel, steered Babcock into a discussion about ways to reclassify the rebuke to conform to state law or the constitution.

“Is it just a (correctable) error?” asked Justice Elsa Alcala of the 1st Court of Appeals in Houston.

The judges will render their decision by October 8. If they deny her motion to dismiss the original charges, the next hearing, which would basically be a re-litigation of the first one, would begin at the end of November. Grits was there for this, and he has more. I’ve previously suggested that Keller getting off on a technicality at the end of all this would be the bitterest irony I can imagine, but I must say that I can also imagine her ending up with the censure she should have gotten in the first place, all as a result of her refusal to leave well enough alone. That would be poetic, to say the least.

Keller appeals to Supreme Court

She’s still going for full vindication. Because as far as she’s concerned, she did nothing wrong.

[I]n a Supreme Court petition filed Thursday, Keller argued that the commission acted in a “lawless” manner because the Texas Constitution forbids it to issue such a warning.

“The order violates the constitution and is void. At the very least, it is a gross abuse of discretion,” wrote Keller lawyer Chip Babcock.

Babcock asked the court to issue a writ of mandamus ordering the commission to expunge the warning from all records and to drop its charges against Keller. “The (commission) should not be given rein to wreak additional mischief,” he wrote.

Here’s the background on what this is about. All I can say is that I can’t think of a more bitterly ironic ending to this fiasco than Keller getting off on a technicality. Somebody pour me a drink.

UPDATE: Grits has more.

What is this “warning” of which you speak?

I’m glad to see that someone is asking questions about the warning that the State Commission on Judicial Conduct handed down to Sharon Keller.

Seana Willing, the commission’s examiner, contends in an e-mail that the order is based on a rule that does not comport with the Texas Constitution. As examiner in judicial misconduct cases, Willing acts as a prosecutor does in a criminal case, gathering and presenting evidence, often assisted by a private attorney.

Willing says, “I’m not criticizing the commission for what they did, but I don’t understand why they did what they did.” But Willing is concerned that the commission’s public warning in Keller could result in “bad law” and cost taxpayers more money.

She argues the commission should have based its order on the constitution, which allows the commission only three options after it begins formal proceedings against a judge and after a special master issues a report: issue a censure, recommend removal or retirement, or dismiss the charges.

But John J. “Mike” McKetta, the special counsel who prosecuted Keller, thinks the constitution allows the commission to take the action it did.

Bob Warneke, the commission’s counsel in Keller, says the commission’s position is that the order “speaks for itself.” He declines further comment.

The question is somewhat complicated, and turns on what the Texas Constitution outlines and what the rules for the SCJC specify. It’s a bit of a mess, actually. The Statesman has a good story on this as well, which includes the fact that Keller is the 96th judge to be examined by the Commission, and the first to receive this particular sanction. One thing I hope we all can agree on:

While [Keller defense attorney Chip] Babcock is discussing an appeal, how such an appeal would proceed is unclear. That’s because there are different procedures for appeals after formal and informal proceedings. A public warning typically follows informal proceedings, but in Keller’s case, the commission issued a public warning after formal proceedings.

When the commission issues a public warning to a judge in informal proceedings, that judge has the right to ask the state Supreme Court to appoint three appellate justices to a special court of review to hear the appeal. Willing says in an interview that in such appeals, the three-justice panel reviews the evidence de novo, amounting to a new trial.

But because the commission initiated formal proceedings against Keller, Keller already has had a trial — before the special master. Willing says a new trial would be a waste of resources. She is concerned about Keller getting what amounts to a second trial on the taxpayer’s dime.

“This is taxpayers’ resources being expended for a second trial,” Willing says. “I have a problem with that.”

Willing says that even though the commission does not pay Graves Dougherty legal fees for McKetta’s work as special counsel, it had to pay for the firm’s expenses in Keller, which totaled about $20,000 so far. “Are we going to have to do that again?” Willing asks.

I would hope the answer to that is No. At this point, it appears the only way for that to be ensured is for Keller to take her medicine and let it go already. I’m not going to hold my breath waiting for that to happen. Thanks to Grits for the Texas Lawyer link.

The Keller hearings

The current phase of the Sharon Keller saga may end soon.

Sharon Keller, fighting to keep her job as the state’s top criminal court judge, should know her fate soon.

After a five-hour hearing Friday, members of the State Commission on Judicial Conduct met privately to begin deliberating charges that in 2007 Keller improperly closed the Court of Criminal Appeals to a death row inmate scheduled to die later that evening.

The decision, to be issued as a written order, could come as soon as next week. The 12 commissioners can dismiss the charges, reprimand Keller or recommend that she be removed from office.

I say “the current phase” because unless the Commission votes to dismiss the charges, Keller will appeal. Anything is possible, and I know I’m setting myself up for disappointment by saying this, but I don’t see how they can possibly dismiss. Surely at least a reprimand is in order.

I say that in part because I’m hopelessly naive, and in part because I think the case for the prosecution, for which you can see Examiner Mike McKetta’s devastating PowerPoint presentation, is really compelling. But hey, what do I know? I’m just a guy who thinks that Sharon Keller is extremely lucky that she herself is not on the Commission. I’m glad to see at least one member of the Commission recognizes that.

Commissioner Tom Cunningham said he found it interesting Keller would argue that the “tainted process,” as Babcock called it, was denying the judge a fair hearing.

“Isn’t it ironic that’s what Mr. Richard was asking for?” Cunningham said.

Yeah, some of us noticed the irony a long time ago. The Chron, Texas Lawyer, and Grits, from whom I got the McKetta slideshow, have more.

Keller hearing today

Today is the day for the State Commission on Judicial Conduct to have its hearing on the Sharon Keller case and to decide what to do with the findings of the Special Master.

Today, prosecutors plan to argue that [Special Master David] Berchelmann’s findings were misguided and that the evidence showed Keller failed to perform her duties and cast discredit on the judiciary – both violations of the canons of judicial conduct.

Keller plans to argue that the special master’s criticism of her judgment were irrelevant to whether she violated judicial ethics, which Berchelmann found she had not.

Her attorney Chip Babcock said in briefs that Berchelmann’s findings “can only be read as an exoneration of her conduct.

We’ll see about that. It will likely be awhile before we hear from the Commission with their ruling. Austin Legal has more.

That’s a wrap for the Keller trial

So the judicial misconduct trial of Sharon Keller is now over, and we will await the ruling from District Judge David Berchelmann Jr., who will compile “findings of fact” for the State Commission on Judicial Conduct; the Commission will then decide to drop the charges, censure Keller, or recommend she be removed from the bench. You can and should read all of the coverage – here’s the Chron, here’s the Statesman, and here’s the excellent blow-by-blow stuff from Focal Point here, here, here, and here – but to me, the essence of this whole case, and the reason why it makes me so mad, is in this statement from Keller’s defense attorney Chip Babcock, quoted in the Statesman story:

Babcock said the charges against Keller assume that “we live in a black and white world. I think our society, and what happened here, is a little more nuanced than that.”

Are you kidding me? Have you ever read any of Judge Keller’s rulings from the Court of Criminal Appeals? Because according to Judge Keller, we do live in a black and white world, one in which the prosecution is always correct and never at fault, and the defense is always wrong. She’s got a decade-long track record of it. I keep coming back to this “what would Judge Keller do?” theme because it keeps coming up, and it doesn’t get any more obvious than this. From a legal standpoint, it doesn’t matter what Judge Keller would do, it matters only what Judge Keller did do and what she should have done on that day in 2007. But if you want to understand why some people, like me, are so fired up about this trial, it’s precisely because Sharon Keller is asking – demanding, really – to be judged by a different standard than the one she has used to judge so many of the appellants that have appeared before her court. And the irony is that she does deserve to be judged differently, because her standard is so horribly misguided that nobody, not even her, deserves to be judged by it.

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.

Keller goes on the offensive

We’re less than two weeks out from the judicial conduct hearing on Court of Criminal Appeals Chief Justice Sharon Keller, and it’s clear that her defense strategy will be to attack her accusers.

Keller, facing potentially career-ending charges that she improperly closed her court to a death row appeal, will argue that defense lawyers fabricated — or at least exaggerated — computer problems the day Texas executed Michael Richard.

Keller’s new accusation is an attack on the credibility of Richard’s lawyers, three of whom are expected to be called as witnesses when her special trial convenes Aug. 17 in San Antonio.

The attack, a recent addition to Keller’s defense strategy, also seeks to undermine the narrative that has emerged against the judge: that she refused a reasonable request to keep the Texas Court of Criminal Appeals open past 5 p.m., penalizing Richard for events outside his control — computerbreakdowns experienced by his lawyers.

“Judge Keller’s position will be that there was no computer problem,” said her lawyer, Chip Babcock. “There will be testimony that (Richard’s lawyers) — maybe — had e-mail problems for a few minutes in the afternoon.”

However, in recent pretrial depositions, provided to the American-Statesman by agreement of all parties, Richard’s lawyers testified under oath that the computer difficulties were real and delayed work on Richard’s briefs.

Even Keller’s forensic computer expert, Eric Shirk, testified in a July 17 deposition that he could not rule out computer trouble — only that he found no evidence of a “series of computer crashes,” which is how Richard lawyer David Dow described the problem shortly after Richard was executed in 2007.

That recent Texas Monthly article gives a pretty good accounting of the timeline, and it’s clear that the defense could have been better organized, though they really were operating on a very tight deadline. Having said that, this isn’t about them, it’s about her, despite her efforts to pass the buck. I’ll say it again, I can only wonder what Justice Keller would think of the arguments being made on behalf of Defendant Keller if the latter were to appear before her.

According to depositions, working from the Texas Defender Service’s office in Houston, lawyer Alma Lagarda began drafting Richard’s briefs about noon. Dow, the organization’s litigation director, joined her about 2:45 p.m., and Lagarda e-mailed Dow her first draft about 3:30.

The first sign of trouble came around 4 p.m., when Dow tried to send his changes back to Lagarda and discovered that nobody in the office could send or receive e-mail, according to sworn testimony from Dow and Lagarda.

All computers, however, continued to function, allowing Lagarda and Dow to finish the brief about 4:30 p.m. by working from printouts. Still, several efforts to e-mail the document to the Texas Defender Service’s office in Austin — where the Court of Criminal Appeals is located — did not succeed until 4:51 p.m., the lawyers testified. Then began the laborious process of making 11 copies, as required by court rules, on the organization’s outdated printer. That didn’t end until 5:50 p.m., according to testimony.

“The best indication is that it slowed them down by half an hour or an hour,” Manne said.

Manne admitted that they “might have been a few minutes late even if there were no e-mail problems at all. But the question is: What did (Keller) do and was it appropriate? It’s a classic legal defense to create a credibility contest over something that doesn’t matter anyway.”

But Shirk, the computer expert hired by Keller, said in his deposition that subpoenaed Internet records and a forensic review of Texas Defender Service data files turned up no verifiable computer crashes, which is how Dow described the problems in an opinion piece he wrote for The Washington Post in 2007.

When asked if his definition of crashes — “catastrophic hardware or software failures” — might conflict with a layman’s definition, Shirk demurred. “The more time I spend in this business, the more I have less of an ability to understand what the layperson thinks,” he said.

Okay, well, I’ve spent nearly 20 years in the IT business, mostly in customer service, and I can tell you that to an end user, a “computer crash” can mean any number of things, mostly something along the lines of “the program I was using failed in some fashion, and I had to start all over”. Maybe they had a hang, maybe they hit a wrong key and lost their data, maybe Outlook or whatever email program they were using crashed on them. Who can tell? I speak from experience when I say you have to quiz non-expert users very carefully to really understand what actually happened to them, because they don’t speak the same technobabble we geeks do. Maybe whatever happened to them would be apparent in a check of their ISPs log files or the data files they submitted – one assumes it was far too late for the computer in question to yield any useful evidence by the time Shirk got involved – and maybe not. What Shirk is saying here tells me nothing, and proves nothing. Thanks to South Texas Chisme for the Statesman link.

Far more egregious than any of this, however, is Keller’s argument that she should be judged by a standard of proof more favorable to the defense than would normally be used. Tex Parte explains.

In the motion she filed with the commission, Keller requests that 37th District Judge David Berchelmann Jr., the special master for Keller’s hearing, base his findings of fact regarding the charges against her on the evidentiary standard of clear and convincing evidence. Under judicial conduct commission rules, the master would base his findings on the lower standard of preponderance of the evidence. “Application of the preponderance of the evidence standard would not be sufficient to ensure that any deprivation of Respondent’s [Keller’s] property interest in her position as Presiding Judge of the Court of Criminal Appeals would not be arbitrary,” Keller alleges in the motion.

Keller’s motion is here (PDF). Once again, all you can say is What Would Justice Keller Do in this situation? My poor Irony-O-Meter may never work again after this. Vince has more.

UPDATE: Grits has more.

Keller hearing moved to San Antonio

It had been scheduled to be in Austin, but now it’s been moved to San Antonio.

State District Judge David Berchelmann Jr., who was chosen by the Texas Supreme Court to preside over Keller’s trial, will use his downtown San Antonio courtroom for the proceedings — set to begin Aug. 17 and expected to last a week or longer.

The special trial was moved from Austin by agreement between Chip Babcock, Keller’s lawyer, and Mike McKetta, the lawyer representing the State Commission on Judicial Conduct.

[…]

Also this week, the commission filed amended charges against Keller. The new document beefs up the charges by claiming Keller violated two additional canons of the Texas Code of Judicial Conduct:

  1. Canon 3C(1): Requiring judges to diligently and promptly discharge administrative responsibilities without bias or prejudice and to cooperate with other judges and court officials in the administration of court business.
  2. Canon 3C(2): Requiring judges to ensure that court staff and officials observe the standards of diligence that apply to judges.

The amended charges also accuse Keller of violating the Texas Government Code against “willful or persistent conduct that is clearly inconsistent with the proper performance of a judge’s duties.” Section 33.001(b) also bans the “unjustifiable failure to timely execute the business of the court.”

The Texas Moratorium Network, which had filed one of the original complaints against Keller back in 2007, has more. It’s not really clear to me why the hearing was moved, but I suppose it doesn’t matter that much – it’s not any harder to get to San Antonio than it is to get to Austin. Had it been moved to Dalhart or some such, that would have been different. In any event, I’m curious about the amended charges. Is this a sign that the commission intends to be tougher on her, or is it more likely to be a technicality? Any lawyers out there, I’d love to hear from you on this. Thanks.

Keller’s day in court set for August

Not as soon as I would have liked, since I think this saga has dragged on long enough, but at least we have a date.

Mark it in ink: The trial to assess whether Judge Sharon Keller violated her duty as head of the state’s highest criminal court will begin Aug. 17 in Austin.

Neither side is willing to entertain a compromise that could derail the trial, which could last a week or longer and help determine whether Keller remains presiding judge of the Texas Court of Criminal Appeals.

“There is no possibility of Judge Keller accepting anything other than a dismissal of the charges,” said her lawyer, Chip Babcock.

That won’t happen, said Seana Willing, executive director of the State Commission on Judicial Conduct, which charged Keller with improperly closing her court to an after-hours appeal by death row inmate Michael Richard in 2007.His execution later that night made international headlines.

The commission might be willing to accept an agreement that included a public censure of Keller, Willing said. “But I don’t see the judge offering to accept anything that acknowledges misconduct, and that would be the only thing we would consider,” Willing said.

Well, someone’s going to walk away from this unhappy. It’s going to be hard, but I’m going to try to keep my expectations low.

Both sides are conducting discovery under civil court procedures while the commission searches for an Austin courtroom capable of handling the expected crowd. “At least for the first day or so, I imagine the trial will be heavily attended,” Willing said.

Perhaps if we sold tickets we could pay poor indigent Keller’s legal fees.

A reprimand would be appealed to the Texas Supreme Court, Babcock said. A vote to remove Keller from the court, where she has sat since 1994, would be reviewed by a specially formed panel of seven appellate court judges.

I try not to constantly harp on the question of how Justice Keller would render a decision in this case if she were the one judging some other defendant, but I can’t help it. One can easily imagine attorney Babcock raising all kinds of hypertechnical points in Keller’s appeal if she gets an unfavorable ruling. One can also easily imagine Justice Keller sniffing with disdain at those technicalities, and finding a way to dismiss them regardless of their merits. Things sure do look different when you see them from an unfamiliar perspective, don’t they? Thanks to Grits for the heads up. Stand Down Project has more.

TPJ files complaints against Keller

To no one’s surprise, in the wake of the Morning News story about Judge Sharon Keller’s lack of financial disclosure as required by law, Texans for Public Justice has filed complaints against her. From their press release (PDF):

TPJ’s complaints follow up on revelations recently reported by the Dallas Morning News. Officials who fail to comply with Texas’ personal-financial disclosure laws are subject to a Texas Ethics Commission fine of up to $10,000. Travis County Attorney David Escamilla also can prosecute such Class B criminal misdemeanors, which carry a maximum penalty of $2,000 and six months imprisonment.

Apart from Texas’ top criminal judge standing accused of committing a crime, these allegations are significant because Judge Keller has asked the state to pay her legal bills in an unrelated case before the State Commission on Judicial Conduct. Responding to charges in that case last week, Keller attorney Chip Babcock asserted that forcing Judge Keller to foot her own legal bills would be “financially ruinous.” This arguably was a false claim if Judge Keller has been hiding millions of dollars in assets that she was legally required to disclose to the public.

[…]

“It looks like Judge Keller has been hiding her assets from the public for at least six year,” said Texans For Public Justice Director Craig McDonald. “Unlike many of the defendants who have appeared before her, Keller can afford to hire a top-notch attorney.”

Yeah, this one’s pretty much kept the irony-meters pegged from the get-go. Here’s the Ethics Commission complaint and the complaint letter to County Attorney Escamilla (both PDFs). As with all such matters, if any action gets taken on them, it won’t be any time soon.

UPDATE: Keller will file an amended financial disclosure.

“We’re going to make a corrected report,” Keller attorney Ed Shack said. “There’s some items that need to be put on her report. The judge met today with her father and her father’s lawyer and they are determining what property is in her name.”

Must be nice to have so much property that you can lose track of some of it.

UPDATE: Oh, this is just awesome. Here’s Sharon Keller’s excuse for not filing a full and accurate disclosure:

[Keller’s lawyer Ed Shack] says two of Keller’s real estate holdings inadvertently were omitted from previous filings because of a simple error. When Keller had a previous year’s report recopied, two pages listing those holdings fell out of the stack; since that happened in 2002, those pages have not been replaced, Shack says. Keller is now checking with her father and her father’s lawyer, Shack says, to make sure no other additional holdings mistakenly have not been reported.

Yeah, that’s the ticket. I’m sure Judge Keller would believe that explanation from any appellant who appeared before her. Via Vince.

What else have you not told us, Sharon?

As we know, Sharon Keller, the Presiding Judge of the Court of Criminal Appeals, has asked that the state pick up her legal fees in defense of the charges against her on grounds that paying for her own attorney would be financially ruinous for her. And if you were to ignore the vast financial resources that she’s been failing to disclose as required by law, that might even be true.

The sworn statement Keller was required to file with the Texas Ethics Commission last April reflected income of more than $275,000, including her annual state salary of $152,500. It also showed that she owned at least 100 shares of airline stock, a home in Austin and one commercial property in Dallas. County tax records valued the properties at about $1 million.

Keller’s statement did not list her ownership interest in seven other residential and commercial properties in Dallas and Tarrant counties. Those properties are valued collectively by county appraisal districts at about $1.9 million.

Among Keller’s unlisted properties are two homes valued together at just over $1 million in the family’s compound across from the Dallas Arboretum. Keller is listed as sole owner under Sharon Batjer, her married name. She was divorced in 1982.

The other omissions include two Keller-owned properties valued at about $823,000: a vacant commercial site in Euless and an occupied commercial property next to Keller’s Drive-In on East Northwest Highway, a landmark hamburger restaurant operated since 1965 by the judge’s father, Jack. Also not disclosed are three properties valued at $114,000 and owned by Keller’s 27-year-old son, a law student whom she claims as a dependent.

[…]

Keller’s assets, including those she is not required to disclose to the state, could reveal that she is even wealthier.

Her 2008 statement to the ethics commission did not list about $3 million in real estate held by three family corporations or trusts, in which she has an interest. State law requires that officeholders list any corporations in which they are an officer or director. Keller did not do so for the three family-run entities, although she did acknowledge earning income of at least $25,000 from a trust in her father’s name.

State law does not require asset disclosure if the officeholder does not have at least a 50 percent interest. Records do not show Keller’s percentage holdings, and neither she nor her lawyer would comment on any details of The News’ findings. Keller also did not list two properties worth about $796,000, owned by a family corporation in which her dependent son is an officer, as she is required by law to do.

Officeholders are also required to list outstanding debt over $1,000; Keller listed none on her latest report to the ethics commission.

Last year, Keller bought a residential property in Hunt County, valued on tax rolls at $251,000. She will not have to report that property until this year’s filing.

Oopsie. Apparently, even her high-priced defense attorney concedes that maybe she could afford his services after all. He still thinks she deserves them for free, because she’s a public servant and that makes her special. I say good luck with that argument. Thanks to Mark Bennett for the catch.

You have the right to an attorney, but it doesn’t have to be of your choosing

In her response to the charges pending against her before the State Commission on Judicial Conduct, Sharon Keller made the claim that the state should foot her legal bills. Rick Casey notes the problem with that claim.

[We do] provide attorneys for accused criminals.

True, we don’t hire lawyers for accused criminals who make $152,500 a year, as Judge Keller does.

And we provide lawyers only for indigents in danger of losing their freedom or their lives, not simply their jobs like Judge Keller.

And we don’t allow indigent defendants to choose their own free lawyers, particularly the highly regarded likes of Mr. [Chip] Babcock.

Keller wants the taxpayers to pick up the “usual and customary fees” of Babcock’s firm, despite the fact that, according to the filing prepared by Babcock, hiring him is to “risk a financially ruinous legal bill to defend against these charges which are without merit.”

The judge should know better, especially in these tough times, than to ask us taxpayers to agree to a lawyer whose usual and customary fees can lead to a ruinous legal bill. However, I personally would be willing to chip in for the kind of lawyers whom Keller has found acceptable for people whose lives were at stake.

You can picture what kind of lawyer that is (hint: the incompetent, indifferent, sleep-through-the-trial kind), but Casey provides a few examples in case your imagination is lacking.

Mark Bennett, who compliments Casey for his efforts, has his own critique of Keller’s defense.

She spends several paragraphs reiterating the facts of Michael Richard’s case (the “he had it coming” defense), explains that Richard was not seeking not to be executed, but rather not to be executed using the current protocol (the “only hastening the inevitable” defense) and points the finger at Court of Criminal Appeals counsel Edward Marty and Richard’s lawyers (the “some other dude did it” defense).

My second favorite part of the answer is where Judge Keller claims that “If applied to these charges [Article 5] Section I-a(6)A [of the Texas Constitution] is unconstitutional under the United States and Texas Constitutions.” So part of the Texas Constitution is itself unconstitutional under the Texas Constitution.

Maybe we should have provided her with an attorney after all. I’m sure there’s plenty more where this came from. And for the record, I said some of this stuff last month, after Clay Robison wrote about Keller’s request, just before she filed for an extension.

Keller blames others for her actions

Court of Criminal Appeals Presiding Judge Sharon Keller, who has been formally accused of violating her duty as a judge in the matter of the Michael Richard case, has filed her response to the State Commission on Judicial Ethics. (For which she was given an extension, because she couldn’t get it done in time. God really does have a sense of humor.)

Keller said the Texas Defender Service has filed previous death penalty appeals with the court after the clerk’s office closed. She also noted that the Texas Rules of Appellate Procedure allow for after-hours appeals to be filed either with the clerk or a judge of the court willing to accept the case.

Keller said all the judges of the court are listed in the blue pages of the telephone book and the phone number of court General Counsel Ed Marty phone number was listed on his letterhead and known to (the defender service.)

She said when Marty called her on the day of the execution about a defender service request that the clerk’s office stay open late, she understood that only to be about the clerk’s office, not Richard’s ability to file an appeal.

“Judge Keller did not, and could not have, if she had wanted to, close access to the court in light (of the appellate procedure rules),” said the brief by her lawyer, Chip Babcock.

You can find a copy of the full response here. You might then want to reread the factual allegations (PDF), or just Rick Casey’s summary, and note how casual with the truth Keller has been about this all along. I don’t know about you, but I can’t help but wonder how Presiding Judge Sharon Keller would rule on this matter if it had come before her. Better hope the commission isn’t as nakedly pro-prosecution as you are, Judge.

The Texas Defender Service said Keller is trying to deflect attention because she “knowingly broke the rules” and caused Richard’s execution when he likely could have gotten a stay.

Neal Manne, counsel for the service, said the judicial conduct commission found that Keller knew she was not the assigned judge handling the Richard execution and that she should have referred the calls to that judge, Cheryl Johnson.

“The commission has properly focused on Judge Keller’s conduct, and has not in any way suggested that Texas Defender Service acted improperly or was at fault,” Manne said.

Keller’s defense, which apparently includes some last-minute edits, referenced that recent Chron story about missing deadlines in capital cases. Well, we did know that she doesn’t think she did anything wrong, so it stands to reason that someone else must be at fault. Simple, really.

No idea when the Commission may make its ruling. Any lawyers out there want to comment on her defense?

NYT on Keller

This story doesn’t really advance our knowledge of Justice Sharon Keller, but it does provide some insight as to her supporters. At least, it confirms that she has them. How they can reconcile their opinion of her with some of her more outrageous rulings and statements about the justice system and the appellants that appear before her, we don’t know because they didn’t ask. But we do get one interesting new tidbit:

Judge Keller’s lawyer, Charles L. Babcock, said that many people shared in a failure of communication that day and that her role was minor.

“Hindsight being 20/20, I think Judge Keller is certainly sorry that the system broke down,” Mr. Babcock said. “As far as her overt actions, I don’t think she feels she did anything wrong. Nor do I.”

Well, of course she doesn’t think she’s done anything wrong. I don’t think she’s ever thought she’s done anything wrong – that’s a big part of the problem here, and a big part of the reason why she needs to be an ex-judge, stat. As such, I don’t think she’ll be taking up Evan on his offer any time soon. And finally, while I realize that attorney Babcock is just zealously representing his client, it seems to me that if she genuinely was sorry that the system broke down – not that she had anything to do with it, mind you, or that what she did have to do with it was in any way in the wrong – she might want to take some action to ensure that something was done to try to prevent it from breaking down that way again. But hey, since she didn’t do anything wrong, that must be someone else’s responsibility. Clearly, it’s never hers.

UPDATE: Scott and Vince have more.

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.

The case against Keller

Rick Casey reads through the Judicial Conduct Commission case against Court of Criminal Appeals Justice Sharon Keller, and finds that her actions were worse than even I had thought.

We already knew that Keller and the other judges were aware of the Supreme Court decision. We didn’t know that the court’s general counsel, Edward Marty, had started drafting a proposed order in anticipation that Richard’s lawyers would file a request for a stay .

Nor did we know that Judge Tom Price had drafted a dissenting opinion and circulated it to the other judges, including Keller. Nor that all the judges were notified about 2:40 p.m. that the Harris County District Attorney’s Office had reported that Richard’s lawyers were planning to file a request.

The Supreme Court decision was so much on the court’s mind that Judge Cathy Cochran forwarded to all her colleagues a copy of the Kentucky Supreme Court decision that was being challenged.

Under court procedures, Judge Cheryl Johnson was the designated judge who was supposed to receive all messages regarding Richard’s case. She and Marty planned to stay at the office to receive any messages until Richard was executed.

Chief Judge Keller went home early and was called shortly before 5 p.m. by Marty. Richard’s lawyers were having computer problems and wanted the clerk’s office to stay open until 5:20 or so to receive their filing. Rather than forward the message to Johnson as policy required, Keller instructed Marty to tell the lawyers no. The lawyers made attempts up until 6 p.m. to deliver the filing but were told nobody was there. Richard was executed at about 8:20 p.m.

Two days later, the Supreme Court stopped all executions by injection based on the same arguments Richard’s lawyers made. Richard was the only convict executed until six months later, when the Supreme Court OK’d lethal injection as constitutional.

Here’s the stunner: The morning after Richard’s execution, the nine judges had their weekly conference. At the end of it some of the judges expressed surprise that Richard’s lawyers hadn’t submitted a filing.

Cochran even raised the question — hypothetically, she thought — of what would happen if the lawyers showed up after the clerk’s office closed. She said the court should accept the filing anyway. According to witnesses, Keller said, “The clerk’s office closes at 5 p.m. It’s not a policy, it’s a fact.”

Keller lacked the decency or the courage to tell her colleagues about the call she had received.

What a thoroughly despicable human being. Burka thinks the end is near for her tenure on the bench – one way or another, he says, she’s going to go away. All I can say is that’s great if true, and long, long overdue.

Of course, she has two weeks to respond to the charges, and she’s got herself a defense attorney, who I’m sure will zealously represent her interests at the public trial she’ll get.

Keller will be allowed to present evidence, raise objections, and call and cross-examine witnesses in a forum that will resemble many civil court trials, said Seana Willing, executive director of the Commission on Judicial Conduct.

“The judge can put on her case and we can put on our case,” Willing said.

Can’t wait to hear what she has to say for herself. One thing I’m sure of is that her defense attorney will do a far better job for her than the attorneys for some of the appellants who have appeared before her ever did for them. Not that she cares, of course.

One last thing, from the Chron story:

The proceedings against Keller will take between six and 18 months to complete, Willing has said.

So I may have to wait that long after all. Alas.