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.
I don’t have a problem with Judge Berchelmann’s decision to recommend that Judge Keller be spared punishment even though he found she made mistakes. Mercy is an important part of justice. I don’t agree the TDS lawyers screwed up on the day of the telephone calls. They were working with limited resources to file multiple briefs in a very compressed period of time. The Court is charged with administering justice and should have facilitated the filing. But I do agree this proceeding accomplished a good thing if this never happens again. The changes the Court made in its procedures are good ones and will help, the next time a last-minute stay is necessary.
As much as it pains me to say it, the TDS lawyers did drop the ball. I practice civil law, not criminal law, but the rule of appellate procedure is the same – you file with the clerk or with any judge of that court who is willing to accept delivery – Tex. R. App. P. 9.2(a)(2). There is case law to the effect that you can drive out to whoever’s house to accomplish the filing. Intuitively, I suspect that the refusal of a clerk to accept a timely filing would also on its own at least be an arguable point of appeal at the next stage up – particularly in a capital case with the gurney waiting.
Of course, Justice Keller is by no means the only Republican appellate judge who has insisted on accepting the benefits of rights that they would deny everyone else in a heartbeat.
It still seems like she warrants a reprimand.
What I want to know is why aren’t more organizations speaking out on this? Where is the Texas State Bar Association? Where is the ACLU? Where is MALDEF? Where is ACS?
I also practice civil law and have filed emergency motions on weekends with the clerk of the appellate court, at her home. But only after I called the clerk and worked out the logistics. I wasn’t trying to stay an execution scheduled just hours away.
The part about being “willing to accept delivery” is key. It’s not a matter of right. Under the extreme time pressures, I don’t blame TDS. I blame the Court for creating obstacles to the filing.
TRAP 9.2 is a handy rule, but it’s not a lawyer’s fault if the Court tells the lawyer that late-filing is not an option. The distinction in Judge Berchelmann’s findings between filing with “the clerk” and “the court” seems contrived. When TDS called the court for help, it should have been quite clear that the questions were broad and not narrow. The findings remind me of a Monty Python sketch, something like the Argument Clinic.
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