Tuesday, April 28, 2009

Impeaching Sharon Keller: First Lege discussions on removing Court of Criminal Appeals' Presiding Judge

For the first time in 34 years last night, the Legislature heard an impeachment resolution regarding a sitting judge - Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals. I couldn't attend but am listening to the hearing online this morning.

Rep. Lon Burnam who brought the resolution said the Judiciary and Civil Jurisprudence Committee is being asked to recommend that the Speaker of the House form a committee to scrutinize Keller's conduct and make a recommendation whether to impeach, not to act themselves as finders of fact.

Here's initial coverage from the Dallas News , the Austin Statesman, the Fort Worth Star-Telegram, and the Daily Texan. For those with a few extra hours on their hands, here's a link to the hearing video archive; Burnam's HB 480 begins at the 3:03 mark.

Impeachable offenses are not defined in the Texas Constitution, said Burnam, but a 1924 ruling in the impeachment case against James "Pa" Ferguson established that officials can be impeached in Texas. In fact, that case held it was the "responsibility" of the Legislature to pursue impeachment if the officeholder breached the public trust.

Burnam's resolution focuses only on her actions in the Michael Richard case, but he said there were at least three other grounds for impeachment he believes are applicable. If the House were to approve impeachment articles, he said, Judge Keller would be temporarily removed from the bench until a trial in the Senate could permanently remove her.

A former appellate judge from the First Court of Appeals in Houston, Michol O'Connor (a female), was the first witness, declaring that three things justified her impeachment - her actions in the Michael Richard cases, her stated partiality toward the prosecution, and her incompetence as a judge. In the Richard case, she said, the court wasn't closed "in any real sense" at 5 p.m., she said, since the assigned duty judge was waiting there to hear the appeal. She said she'd never heard of a capital case when a request for a 20-minute delay was denied by an appellate court.

Judge O'Connor particularly emphasized Judge Keller's partiality toward the prosecution, declaring that alone should be enough to justify her removal. This to me is an even stronger argument for her ouster than the Michael Richard debacle. Imagine a family court judge who declared themselves "pro-husband"!

Judge O'Connor went through all the various reasons judges had been removed from office in Texas, arguing that Judge Keller's behavior was worse than any of them. She said she doesn't know anyone who believes Keller should stay in office.

The hearing lasted nearly three hours with most of the testimony favoring impeachment.

See also an analysis of the facts in the case from two dozen legal ethicists recently submitted to the Commission on Judicial Conduct.

MORE: From Mark Bennett who attended the hearing; he testified in favor of the resolution at the 5:41 mark in the archived video on behalf of the Harris County Criminal Lawyers Association.

AND MORE: At my request, Rep. Burnam's office forwarded me a copy of the written testimony from Charles Herring, an attorney, scholar and author on legal ethics and malpractice who testified at the hearing.

Also, go here to download the Texas Supreme Court's ruling in Ferguson v. Maddox (1924), a case that was much discussed at the hearing. This appears to be the key precedential case governing impeachment proceedings in Texas.

Finally, Burnam's office forwarded me another document that I'm having trouble uploading - a resolution from the Texas House in 1975 appointing a committee of the type Burnam is seeking to prepare impeachment articles against Judge O.P. Carillo from Duval County. The House later charged Carillo with 12 counts of misconduct, including stealing groceries. (Only two counts were sustained by the Senate.) That's the last time the state of Texas impeached a sitting judge, and according to Burnam, Rep. Senfronia Thompson is the only current legislator who actually sat on the impeachment committee.

MORE: Steve McGonigle at the Dallas News has a good account of the testimony from Keller's only defender at the hearing, former CCA Judge Frank Maloney. Here's an account of the hearing from Mary Alice Robbins at Texas Lawyer.

27 comments:

Anonymous said...

Judge O'Connor particularly emphasized Judge Keller's partiality toward the prosecution, declaring that alone should be enough to justify her removal. This to me is an even stronger argument for her ouster than the Michael Richard debacle. Imagine a family court judge who declared themselves "pro-husband"!

If Judge Keller made that statement back in 1994, she can't be impeached for it, even assuming it is an impeachable offense. She's been re-elected since then.

Rage Judicata said...

Good lord how embarrassing for Keller. O'Connor is about as respected a lawyer/judge as there is in Texas. More than any other member of the bench or bar I can think of, if O'Connor says something should be done, then it should be done.


If Judge Keller made that statement back in 1994, she can't be impeached for it, even assuming it is an impeachable offense. She's been re-elected since then.Right. The statute of limitations on impeachable offenses runs at re-election. Everybody knows that.

Anonymous said...

If I remember correctly, she said it before she even elected the first time--as a private citizen so to speak.

Gritsforbreakfast said...

It's not just what she said in 1994, of course, that's objectionable, but the fact that she went on to act on those biases in her rulings right up until the present day.

E.g., last week, she authored an opinion (dissenting, thankfully) saying you can be convicted of obstructing a roadway when you were not, in fact, in a roadway. Why? Because for her and several others on the court, only one side is ever right. That faction says so week in and week out in their rulings, she's just the only one who ever campaigned on that platform in public.

O'Connor's prime example of Keller's lack of impartiality was the Roy Criner case, where she refused to acknowledge exonerating DNA evidence as a legitimate habeas corpus claim and made up arguments nobody ever presented at trial to justify upholding the conviction. (The Legislature created the Chapter 64 DNA testing procedures in 2001 in reaction to her rulings in that case.)

In any event, I agree it would be appropriate to hear much more evidence regarding Judge Keller's biases before including the charge in any impeachment articles. I very much look forward to such a hearing.

Finally, personally I'm torn about impeachment. I initially opposed the idea on the blog, but have altered my view to "agnostic" on whether she should be impeached. Perry might not appoint anyone better, so why not leave her a wounded duck and a national laughingstock for three years, let the Judicial Conduct Commission do its thing, then let her fall on the spearpoint of a Democratic sweep of those CCA seats in 2012? That'd be my personal preference, but as it happened, nobody asked me. :)

Rage Judicata said...

Because there's not going to be a sweep Grits. I wish there would be, but with rural Texas voting anti-Obama by immense margins and the cities going back and forth on much smaller margins, there will be little if any change in state-wide elections. Obama will be less of a phenomenon, voter ID will narrow some of the margins further, and in general nobody cares about the CCA because most voters don't even know what it is. The fact that the do-nothing Texas legislature even cares enough to try to start proceedings is remarkable. To stop them would be unthinkable.

Gritsforbreakfast said...

Who knows what the electoral landscape will look like, Rage, but your final point is an excellent one.

In truth, after I saw the JCC's findings, I changed from skeptical to "agnostic" on impeachment because I am convinced its constitutionally justified, for reasons Chuck Herring quite smartly stated at the hearing. I just didn't think from a political perspective it was possible.

In that sense, the fact that a GOP committee chair gave Burnam a hearing tells us a lot, and is one reason I agree it would be "unthinkable" not to move forward. This state desperately needs a bipartisan re-establishment of the concept of a neutral judiciary, and if that can start here, then great. Credit Todd Hunter, who could easily have sidelined the hearing request.

One other thing tells me this doesn't stop regardless of my opinion: Burnam said a motion to impeach is a "privileged" one, which means, if he's correct, that he can't be stopped by the chair from making the motion from the floor. So before the session is done, there will likely be a House floor vote on Keller's impeachment, and if this hearing is any indication it may not just be Democrats who support the motion.

I've gotta hand it to Lon Burnam: This idea appears to have a lot more legs than I gave it credit for!

Anonymous said...

It's not just what she said in 1994, of course, that's objectionable, but the fact that she went on to act on those biases in her rulings right up until the present day.

... Because for her and several others on the court, only one side is ever right. That faction says so week in and week out in their rulings, she's just the only one who ever campaigned on that platform in public.

So are we going to impeach all the other judges who voted with her in her opinions?? Come on, give me a break.

Rage Judicata said...

I didn't think it was politically possible either.

Glad Craddick is gone, because although a committee vote may be impossible to stop I'm not sure the Speaker could be swept aside so easily. Hopefully Strauss will show some stones and let it go to a vote. He seems to be priding himself on this session's "deliberateness" that you and I might call do-nothingnes, but I have to say that in general doing nothing is better than what they usually do. My favorite quote so far this session is "The bad news is that a record number of bills have been proposed. The good news is that a record number will fail." Can't remember who said it. But in that landscape, if getting rid of Keller shows some momentum, get the hell behind it and start pushing.

Kudos to Mark Bennett for testifying. That's the sort of leadership someone in his position should be showing. There are plenty more issues out there for him to press.

Gritsforbreakfast said...

No, 12:12, not all of them, but I think impeaching Judge Keller could send a strong message to the others about the importance of judicial neutrality. She's the most overt about her biases.

Besides, I already agreed "it would be appropriate to hear much more evidence regarding Judge Keller's biases before including the charge in any impeachment articles," and that I'd "very much look forward to such a hearing."

These are interesting questions to explore, whichever side you land on, and Burnam's resolution only asked the committee to decide whether the charges warranted further investigation. IMO it'd be hard to listen to that testimony and credibly say there's nothing more to look at.

TxBluesMan said...

Grits,

Her dissent pointed out that there was, in fact, evidence that the tents encroached onto the roadway and that the court did not view the evidence in a manner most favorable to the verdict.

The impeachment effort is a leftest witch hunt, led by the head wingnut.

Gritsforbreakfast said...

Her dissent said no such thing, Bluesy. Either you're intentionally misleading or you didn't read the opinion and are just making it up, which is my guess.

The closest she came to arguing that was to say that an officer "expressed concern over the fact that farm equipment commonly seen on the country roads takes up the whole roadway, which would cause an oncoming vehicle to have to pull into the ditch."

In other words, they were in a ditch on the side of the road, not the roadway.

Anonymous said...

To bad it didn't rain and flood the ditch.That's funny.

TxBluesMan said...

Grits,

You might want to re-read her dissent. It states:

there was in fact evidence that the tents themselves obstructed passage or made it hazardous. As a reviewing court, we may not simply disregard that evidence.and

Photographs from the August protest show tents, cars, and port-a-potties encroaching on the pavement, and people sitting, standing, and walking on the pavement.and in fn 8

The jury charge defines "highway or street" as "the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel.You should check the Penal Code and Transportation Code. The legal definition of "highway" includes bar ditches, etc, anything from property line to property line, and is not limited to the actual paved roadway.

Rage Judicata said...

Bluesy:

You think a corner of a tent on a piece of pavement is wholesale obstruction?

123txpublicdefender123 said...

I can hardly believe that it has really gotten that far. I agree that O'Connor's strong testimony in support of going forward is huge. She is hugely respected.


If Judge Keller made that statement back in 1994, she can't be impeached for it, even assuming it is an impeachable offense. She's been re-elected since then.I'm pretty sure Richard Nixon was re-elected after the Watergate break-in and all the slush-fund stuff, too. That didn't stop the move to impeach him.

I am glad people have not forgotten the Criner case. That opinion, authored by her, is an absolute disgrace. It kept an innocent man in prison for years and slandered a rape and murder victim by calling her a whore. Her attempt to defend that decision on "Frontline" only brought even more disgrace on the judiciary in this state.

Gritsforbreakfast said...

@ 123txpublicdefender, Personally, I never looked at the court the same after the Criner case. That was the moment when it became crystal clear she honestly didn't care if the person convicted was guilty or innocent.

As far as I know, Keller never backed off her disgraceful reasoning in that case, which included accusing the victim of promiscuity because the rape kit didn't match the defendant. It's one thing to SAY you're pro-prosecution. It's another to ignore evidence of actual innocence to sustain a false conviction.

Bluesy, the photographs mentioned were of people other than the defendants in the case and irrelevant to the question before the court. Also, neither the dissent nor the majority opinion endorse the sweeping, fence-to-fence definition of "roadway" you suggest and it sounds like BS to me. You're just throwing garbage at the wall, at this point, hoping it will stick.

TxBluesMan said...

Grits,

Look at Trans. Code Sec. 541.302(5), which defines a highway as "the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel."

Then compare that to the jury instruction referred to in the dissent, which stated:

The jury charge defines "highway or street" as "the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel.

Do you notice any similarity?

The model jury charge for Obstructing Highway uses that definition and it was used in this case. See Texas Criminal Jury Charges, Judge Berry, Judge Gallagher, and Mr. McClung; James Publishing, 2008.

Before you call something BS that is both in the law and the jury charge, you might want to research it.

Anonymous said...

For the record, Judge O'Connor is Justice Michol O'Connor.

I know it's confusing keeping Chief Justices, Presiding Judges and Justices straight, but it's amazing how many media outlets can't get enough of a grasp on it to think about double checking. The Dallas paper seems particularly challenged in this respect.

Gritsforbreakfast said...

Bluesy, you're full of it.

The language you cite clearly references the road, not the ditch on the side, which is not "open to the public for vehicular travel".

I'll stick with my BS assessment. Obviously the CCA majority didn't agree with you, either.

Anonymous said...

I was at Camp Casey in 2005. If what Bluesy asserts is true, then my friends & I would have been arrested by one of the many sheriff's deputies &/or DPS present at the site. As it was, they kept their backs to us & their eyes on the counter-protesters, then when the day was done, came over to the Peace House to chat & chow down.

Everyone was well aware of the rules & the only reason they camped in the ditch is that was the only place Cindy was permitted to walk.

TxBluesMan said...

Grits,

You don't understand the law.

The title of the offense is Obstructing Highway or Passageway. The majority opinion recognized that:

"The arrests were based on the prohibition in the county ordinance on erecting tents, even empty ones, in the bar ditch, not for disobeying a reasonable order to move from a passageway and thereby avoid becoming an obstruction. Proof that appellants violated the county ordinance is not proof that they violated Sec. 42.03"This is clearly a case that hinged on free speech, not obstructing the highway.

You may want to look at Price v. State, 861 S.W.2d 913 (Tex. Crim. App. 1993), reh. den'd, where John Wiley Price was charged with Obstructing a Highway for blocking traffic while on a sidewalk and Criminal Mischief for damaging a vehicle that attempted to exit a driveway.

A private driveway is clearly not a public road, but the sidewalk is within the boundary lines...

Look, your liberal friends got off, be happy...

Anonymous said...

@ 8:16 said:

"For the record, Judge O'Connor is Justice Michol O'Connor."

Well, you're mostly right :) Yes, her first name is Michol (a biblical female name). Technically, she's a *Justice*, but those of us who work for her just call her "Judge."

Gritsforbreakfast said...

Bluesy, your problem is that you make up stuff, obfuscate facts and falsely spin case law so much (always to justify excessive police actions) that regular readers including me don't believe you without doublechecking every single fact, and you spin out so much garbage nobody has time to do that.

In this case, you can't drive in the bar ditch so it's not "open to the public for vehicular travel" and is not a "passageway" to anywhere. Obfuscate all you want, but the "roadway" is not the bar ditch and that's what the CCA majority said.

The language you quote from the majority contradicts your claim directly so there's no need to look at the Price case. The part you quoted said PRECISELY that while they may have violated a county ordinance they weren't charged with, that DOESN'T mean they obstructed a roadway because they did not. They were by the side of the road.

Gritsforbreakfast said...

Thanks 8:16 and 9:48, I fixed the spelling of her name. I did actually try to doublecheck the spelling on Google first since it was an unusual name, but searching Judge O'Connor kept getting me either a bunch of men or Sandra Day!

FWIW, Justice O'Connor herself at the hearing kept referring to Presiding Judge Keller as the "Chief Justice" of the CCA, so I think mixing up those appellations is a pretty common thing. :)

Rage Judicata said...

You could have looked her name up on the practice manual for just about an area of law there is. She is the modern equivalent of Dorsaneo. She has tons of help editing, etc., but if you ask just aut any lawyer for their "O'Connor's" they'll know exactly what you're talking about.

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Anonymous said...

Let this woman go....she is not Jesus Christ. There is no place for her abusing power. She is not above the law. Why such a struggle with her removal? Time out for getting away wrong because of this society mess....GIVE HER THE BOOT.