Friday, March 27, 2009

Tables turned on Judge Sharon Keller and the right to counsel

Mark Bennett brilliantly dissects Court of Criminal Appeals Presiding Judge Sharon Keller's sworn answer to charges by the Commission on Judicial Conduct, and pulls out some gems. He writes:
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).
Sounds like she's squirming a bit, doesn't it? Even more deliciously, writes Bennett:
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.
Genius! You can't make this stuff up! You see the same kind of tortured, circuitous logic routinely in her opinions, but it's great to see it on public display in a case drawing national attention.

Bennett's favorite part, though, involves Keller "whining about having to pay the counsel of her choice." She's asking for taxpayers to cover her attorney's fees after retaining Chip Babcock, one of the best-known, highest-priced lawyers in the state, to represent her. Writes Bennett:
If there is a constitutional right to counsel in this (non-criminal) case, it certainly doesn’t provide for a judge who isn’t indigent to get counsel at the taxpayers’ expense. And Judge Keller, whose salary is at least $150,000 a year and who, by her own admission, “own[s] a considerable amount of property” — including (in 1999) a $1.3 million piece of land in Dallas, landlord to a topless bar –is certainly not indigent.

Even if Judge Keller were entitled to appointed counsel, she would not be entitled to reasonable counsel of her choice. The State is not required to ‘purchase for an indigent defendant all the assistance that his wealthier counterparts might buy.’” Keller knows this, of course, because she joined in the opinion (Griffith v. State — WPD).

Judge Keller says she’s being forced to choose either to “defend herself pro se or risk a financially ruinous legal bill to defend against these charges which are without merit.” Why Babcock’s bill for defending meritless charges should be ruinous to the millionaire scion of a wealthy Dallas family is a mystery, but if this is a legitimate concern (and it must be, since the Honorable Sharon Keller herself swore to its truth) then Judge Keller might do what the working poor often have to do in criminal cases, and hire the lawyer she can afford rather than the lawyer she wants. The right to effective counsel is not the right to the best possible counsel.

If that idea is too unpalatable to her — if the Greenhill School girl can’t conceive of having anything but the absolute best — she can always fall back on daddy’s money. And if she finds herself too proud to ask daddy Jack for help, there’s one other option. There would be no ethical issue with Chip Babcock helping her for free, if only she were no longer a judge.
MORE: From Rick Casey at the Houston Chronicle and the New York Times' Lede Blog.


Anonymous said...

How delicious when the "judger" gets judged and has to play by the rules she dishes out to others. I believe every judge should have to put themselves in the shoes of the people they "condemn." I am revelling like a pig in the mud!

Anonymous said...

I think it's hot that she owns her own topless bar... male fantasies unite.. lol

Anonymous said...

Are you able to grasp the notion that the lawyer is making these legal aruments, not the client?
Don't be hate-in'.

Mack T. Harrison said...

In our legal system, the lawyer advocates on behalf of the client, and the law considers those arguments as coming from the client, not the lawyer. That's why when you read judicial opinions, they say things like "the plaintiff argues" or "the defendant contends" even when usually it's the plaintiff's lawyer or the defendant's lawyer that made that argument or that claim in court.

Anonymous said...

You're correct, Mack. So how did Chip get to be -- as Grits puts it -- one of the best-known, highest-priced lawyers in the state?

Anonymous said...

Right, Mack. But this is not court and this blog is not some appellate brief.

Anonymous said...

Anon 1:54 and Anon 5:00

The client here is a judge. She knows better than to let her lawyer make frivolous arguments, and she sure as hell knows better than to swear to the truth of something that is not true. It don't matter that this blog is not an appellate brief, nor that the Judge's answer was written by her attorney. The place where the questionable swearing is going on is a quasi-judicial proceeding. A party to one of those needs to be careful about false swearing.

Anonymous said...

I wonder if anyone who is damning the Honorable Judge Keller has read the crime scene report, victims' statements, offender's last statement, or any of the previous motions the offender entered in court over the last 20 years. Better yet, has anyone who is reading the media reports and saying "Hell yeah" actually read the briefings for content rather than adrenaline?

doran williams said...

Anon 7:38---

I have not read any of those documents. In your opinion, does this disqualify me to criticize Judge Keller's behaviour in the Michael Richard's case?

Anonymous said...

She's going down. About time.

Anonymous said...

Richard's attorneys waited until the last possible moment to file this writ in order to force a stay. The Baze certiorari grant came during the morning and Richard's attorneys could have filed their response within a few hours -- especially since all their supporting affidavits/ documents were the same ones they had been using for some time.

What I do not understand is why Richard's attorneys were filing directly in the Court of Criminal Appeals when article 11.072 mandates that writs of habeas corpus be filed with the local district court?

Anonymous said...

Oops! That should be article 11.071.

Buggem said...

Judge Killer's best defense will be to go on offense. The execution-day behavior of the attorney for Mr. Richard won't look good if all the details are aired in public. She should also attack the basic premise of her alledged violation. She should frame her behavior as an infraction of an "informal office policy" rather than a due process violation.

She can still win this but she needs to go on offense. You'd think someone like Chip Babcock could figure this out!

Anonymous said...

Judge Sharon Keller made false statements in financial statements filed with the Texas Ethics Commission.

I remind the readers that it is a felony in Texas to file a fraudulent financial statement with a government agency. See Section 37 of the Texas Penal Code.

An indictment and disbarment of Her Honor would be entirely appropriate.


Bill Fason
Houston Texas