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David Dow

Keller gets off

Fresh from the Trib:

Sharon Keller, the presiding judge of the state’s highest criminal court, will not be removed from the bench following a trial and review by the State Commission on Judicial Conduct.

[…]

The special master finds that all parties – including the Texas Defender Service – were partly at fault, and that Keller’s “conduct … was not exemplary of a public servant”. But she won’t be removed from the bench or any further reprimand “beyond the public humiliation she has surely suffered,” writes Special Master David Berchelmann, Jr.

I’ve read through Judge Berchelmann’s findings of fact, and while it pains me to say it, I can’t disagree with his conclusion that Keller’s behavior did not rise to the level of misconduct that warrants removal from the bench. Mind you, there’s nothing in his report to alter my opinion that she’s a lousy human being and a disgraceful judge. And I still have no doubt that Judge Sharon Keller would have been utterly dismissive of Defendant Sharon Keller’s legal arguments. But it’s clear that the Texas Defenders Service screwed this up, and then compounded their screwup by not being honest about it in their public accounts of what happened. I fully expect that Keller will claim that she’s not only been vindicated by this, but that she was victimized, and that the kind of people who believe that the Sharon Kellers of the world are under continual assault from the forces of decadence will find the story she’ll have to tell about this experience to be compelling. And we’ll have the TDS to thank for supplying her with the plotline and the villains for her tale of woe. I suppose the one positive to come out of all this is that it forced the CCA to write down its heretofore unwritten rules for handling last-minute appeals, so that this particular kind of fiasco ought never happen again. It ain’t much, but it’ll have to do. Grits has more.

CCA versus David Dow

According to Grits, UH law professor David Dow and the nonprofit Texas Defender Service will be called to account before the Court of Criminal Appeals for filing tardy paperwork.

Two years ago, David Dow and the Texas Defender Service were embroiled in a controversy after a thwarted last-minute attempt to file pleadings for a death-row inmate. Now Dow and Katherine Black, his TDS co-counsel in a different death penalty case, have been ordered to appear before the Court of Criminal Appeals to explain an “untimely filing,” and they face possible sanctions under one of the CCA’s rules.

On Nov. 18, the CCA ordered Dow, the TDS litigation director, and Black, a TDS staff attorney, to appear before the court for a Dec. 2 hearing to show cause for the untimely filed documents in Ex Parte Simpson. Dow and Black work in the Houston office of TDS, a nonprofit organization that seeks to improve the representation of death-row inmates.

As noted in the CCA’s order, Sharon Keller, the court’s presiding judge, did not participate in Simpson and is not participating in the court’s show cause hearing for Dow and Black.

Like Grits, I have a feeling that this will not be a pleasant experience for Dow. I sure hope he’s got a good explanation for the Court.

CCA gives its approval to hot judge-on-prosecutor action

I don’t know how else to characterize this latest atrocity from the biggest joke in Texas, the Court of Criminal Appeals.

The question of whether a romantic relationship between a judge and prosecutor is unfair won’t be decided by the Texas Court of Criminal Appeals.

The issue in the capital case of Charles Dean Hood roiled the legal community last summer, but the Court ruled Wednesday it would not consider the issue because defense attorneys did not raise it initially.

Defense attorney David Dow called the decision by Texas’ highest criminal court “gutless.”

“The question of whether there is a fundamental taint to this trial is, at this point, going to be decided by a federal court — if it’s going to be decided by any court at all — because what the state court has said is, ‘We don’t care,’” said Dow, litigation director for the Texas Defender Service.

[…]

The Court denied Hood the right to pursue his claim that he did not receive a fair trial because Judge Verla Sue Holland and then district attorney Tom O’Connell were romantically involved.

Hood’s previous filings in the case had not raised the issue and the Court dismissed Hood’s application as an abuse.

[…]

Dow said he was stunned by the ruling. When the Court denied a stay on the issue last year, “it denied a stay because it said ‘There’s no proof. Come back to us when you have some proof.’”

The service came back with that proof — acknowledgment from the two principals that an affair had occurred, “And what do they say?” Dow asked. “‘Tough, you lose anyway.”

The ruling came despite the fact that District Judge Greg Brewer had recommended Hood be allowed to pursue the claim, going so far as to say the state’s “hands are unclean.”

You can read more about the case here. I have to say, I disagree with Dow – I think what the CCA did here was bold. Usually, they rule in favor of screwing the defense. Here, they ruled in favor of screwing the prosecution. You have to admire that.

Credit where it’s due:

Court of Criminal Appeals Judge Cathy Cochran filed a dissenting opinion in the case, in which Judge Tom Price and Judge Charles Holcomb joined. Cochran wrote that she would accept Brewer’s findings and allow Hood to pursue the claim.

Kudos to these three judges for their integrity. The other six, and yes of course that includes Sharon Keller, aren’t worth a damn. Grits 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.

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.