Monday, August 17, 2009

Sharon Keller misconduct trial more about judicial activism than the death penalty

Presiding Court of Criminal Appeals Judge Sharon Keller's ethics trial begins today in San Antonio. Here are previews from the Austin Statesman and the SA Express News.

Unfortunately, this hearing is being portrayed by both sides of the capital punishment debate as being primarily about the death penalty, though at least prosecutors are keeping their eye on the ball. Reported the Statesman::
"This isn't about whether you are for or against the death penalty. It's really about process," said Seana Willing, executive director of the State Commission on Judicial Conduct, which investigates allegations of wrongdoing by Texas judges.
This case is about Judge Keller putting her own preferences before the court's process, ignoring the duty judge appointed to make the decision on Michael Richard's appeal and substituting her own judgment instead. Yes, Keller is ardently pro-death penalty, but that was merely her motive for the violation, not the pivotal issue in the debate.

The Keller case is a brazen example of judicial activism. Judge Keller is a critic of last-minute death penalty appeals and notoriously anti-defendant in her rulings in such cases. But in this instance she allowed those opinions to motivate a judgment call - rejecting Michael Richard's execution-day appeal - that was simply not her decision to make. Her colleague on the court, fellow Republican Judge Cheryl Johnson, will testify at the hearing that she was the scheduled duty judge under court rules existing at the time and would have ruled differently if the clerk had asked her whether to allow the appeal.

Here's the formal charging document against Judge Keller; read it for more background. At the end of the day, IMO it's clear Keller did indeed commit the specific acts of which she's been accused by the Commission on Judicial Conduct - the question will be whether such acts exhibit "incompetence," or "cast public discredit" on the judiciary.

Despite the hype around this case among pro- and anti-death penalty factions, in reality that's not what this suit is fundamentally about. Michael Richard already has been held accountable for his crimes. Now we will learn whether the Presiding Judge on Texas' highest criminal court can also be held accountable, or whether it's okay for her to flout the rules and practices of the court in cases where the defendant is accused of a particularly detestable offense.

If this were happening in Austin I'd head over this morning to cover today's fact finding hearing, but since it's in SA I'll have to rely on the MSM like everybody else.

RELATED: See additional "preview" stories from Texas Monthly, the Wall Street Journal Law Blog, and more from the Austin Statesman, where Chuck Lindell will be liveblogging the trial.

UPDATE (8/18): Here's a roundup of Chuck Lindell's excellent blog coverage from the first day:

28 comments:

Soronel Haetir said...

I hope she is found not guilty or liable or whatever the term for the outcome of such a proceeding is. It would simply be the perfect exclamation point to cap the routine corruption of the CCA.

Anonymous said...

Reminds me of the lawyer joke: "Of course I can defend you. I'm just not sure I can do it with a staight face."

Prole said...

"The Keller case is a brazen example of judicial activism."

So now actually following the rules exactly as written and not bending them to reach a particular outcome is judicial activism?

Oceania has always been at war with Eastasia.

Gritsforbreakfast said...

BS, Prole, that's not what she did at all.

The court had procedures for how decisions about late appeals should be made in such circumstances. Judge Johnson was the pre-designated "duty" judge assigned to the case and Sharon Keller as Presiding Judge should have referred the decision to her instead of usurping that authority.

It's precisely Judge Keller IGNORING the rules of the court and overriding the authority of her colleague to reach a particular outcome that got her into trouble. If she'd followed the court's rules there'd be no trial going on in San Antonio today.

Anonymous said...

Grits that is true, and there well still be one dead convict and like Tony the Tiger says "THATSSSSS GREAT"

Boyness said...

Killer Keller has her own agenda. She is typical of the Texas Good Ole Girl (and Guy) crowd that make this state the laughing stock of the nation. She needs to GO!

Anonymous said...

According to the article in Texas Monthly, it's not even clear that the she knew that the request was being made by Richards' attorneys.

Beyond that, the request was not whether the COURT would remain open past five, but rather whether the CLERK'S office would receive filings after five.

Apparently, there was ample precedent for death penalty filings being made with the individual justices after hours. David Dow and his collegues at the Texas Defender Service no doubt are aware of this practice.

My question is whether there is any precedent whatsoever for the clerk's office to be open at any hours other than 8 to 5. My guess is that most, if not all, of the employees in the clerk's office are merely ministerial types who stamp and file pleadings and are otherwise subject to FLSA wage and hour requirements precluding them from working more than a 40 hour week. My question is whether Justice Keller even has the authority to order the staff of the clerk's office to stay on past 5:00 to receive a special pleading and whether this has ever been done before? At the end of the day, these are merely public servants whose salaries are paid by the Legislature. Seems to me that Keller's announcement that the clerk's office closes at 5:00 was nothing more than a statement of fact...not an ethical usurption of any authority on the part of Justice Johnson.

Anonymous said...

I guess the death penalty has become so common place in Texas that she probably was unaware that a man was supposed to be executed that day and she was among the one group of people in the entire world that might have been asked to stop it. Procedures were in place. She knew.

You're grasping at straws 12:52.

Already Lit said...

Actually we do execute one killer about every other week or so.


It was common practice for the defense attorney to sandbag the appeal until 4:59pm on the day of the scheduled execution to file an appeal because sometimes the court would simply grant a 30 day stay of execution rather than staying at work late to make a ruling. If this case does nothing else good at least it eliminated that sleazy defense technique.

Anonymous said...

Looks like Ed Marty is gonna fall on his sword.

Boyness said...

Anonymous said...

Seems to me that Keller's announcement that the clerk's office closes at 5:00 was nothing more than a statement of fact...not an ethical usurption of any authority on the part of Justice Johnson.

8/17/2009 12:52:00 PM
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Give me a Texas sized break. The presiding judge of the CCA didn't know what was going on the DAY of an execution? You actually believe that?? I have some swamp land in East Texas you need to look at...dumba$$.

Anonymous said...

Boyness,
If you think you can just stroll into any courthouse in the state and file a pleading at the court clerk's office outside of normal business hours, you're the one who needs to buy some swamp land. In fact, on Friday afternoons you might have a hard time filing anything after 4:00!

Judges may think they have a lot of authority, and in some cases they really do, but if you think they can dictate the lives and work hours of numerous FLSA "non-exempt" employees just because some death row inmate's lawyer is trying to game the system by pushing the envelope with the last minute filing, it is you sir, who is the Dumba$$! Wake up!

Anonymous said...

boyness there is alot of swamp land in east Texas.

Boyness said...

Anonymous said...

Judges may think they have a lot of authority, and in some cases they really do, but if you think they can dictate the lives and work hours of numerous FLSA "non-exempt" employees just because some death row inmate's lawyer is trying to game the system by pushing the envelope with the last minute filing, it is you sir, who is the Dumba$$! Wake up!

8/17/2009 04:37:00 PM
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Look idiot, Killer Keller could have stayed that execution just as easily as she said "we close at 5." She knew what was going on and if she didn't, she should have. We are not talking about filing a change of venue or a motion for bond after-hours, we are talking about a DEATH ROW APPEAL. You can hide behind the rules and regulations all you want but she knew damn good and well what was going on and in taking her side, you become an accomplice. Dumba$$!

Anonymous said...

Keller 1 Other 0

Court clerk says judge Sharon Keller didn't close access to court

06:00 PM CDT on Monday, August 17, 2009
Associated Press
A clerk for the Texas Court of Criminal Appeals says he doesn't believe Presiding Judge Sharon Keller closed the door on a condemned man's final appeal.

Keller went on trial Monday in San Antonio on five charges of judicial misconduct. She is accused of denying convicted killer Michael Wayne Richard (ruh-SHARD') his right to file an appeal before being executed in September 2007.

The first day of testimony ended with the court's deputy clerk, Abel Acosta. He testified that he told Richard's legal team that he wouldn't accept any paperwork past 5 p.m, but that he was personally aware of other avenues to file an appeal.

Acosta said he didn't remind Richard's attorneys of those avenues because he isn't supposed to give legal advice.

Testimony is expected to resume Tuesday.

Anonymous said...

Anonymous 8:32

That was not a score for Keller. It says that Acosta "testified that he told Richard's legal team that he wouldn't accept any paperwork past 5 p.m, but that he was personally aware of other avenues to file an appeal".

Acosta was aware that there were other avenues, but he only relayed the orders of Keller that he could not accept anything after 5.

"Acosta said he didn't remind Richard's attorneys of those avenues because he isn't supposed to give legal advice."

Anonymous said...

This case is actually about the death penalty, specifically it is about the process of how the death penalty is administered in Texas. While it may not be about the morality of whether one is for or against the death penalty, it is about whether one is in favor of the way the death penalty is administered in Texas.

The death penalty system is flawed from start to finish, from the investigation of crimes and the collection and analysis of evidence, to flaws in how both prosecutors and defense lawyers represent their clients, to flaws in the judicial system, such as election of judges which can lead to "pro prosecution" judges like Keller, whose actions are just this week's most notorious example of what can go wrong with the death penalty in a state that uses it far too often and without having taken time to carefully examine how it is administered, such as could be done by creating a commission to study the death penalty, as has been repeatedly proposed in the Legislature since at least 2001.

Anonymous said...

"Acosta said he didn't remind Richard's attorneys of those avenues because he isn't supposed to give legal advice."

That's right. If an atty doesn't know how to file an after hours appeal or to read the appellate rules, he shouldn't be handling death penalty cases.

They may succeed in bringing Keller down, but she is taking David Dow and his merry band of IACs with her.

Supremacy Claus said...

What material harm did Judge Keller cause? None.

Here is the collateral mortal sin harm she caused. She precluded many hours of lawyer appellate work, all pretextual, on behalf of a guilty murderer.

So she must be destroyed by the lawyer hierarchy. Because rent seeking is armed robbery, self-dealing, and the trial carries an inherent conflict of interest, it is her prosecutors and judges who need an hour's fair trial.

Anonymous said...

The precedence was that they could still accept last minute appeals. Note the word "precedence". So the defense claim that "she was following the rules" doesn't apply because the "precedence" nullified that.

Courow said...

I think Keller is a terrible judge but I also think she should prevail in this trial.

Some of the peope who are against Keller in this trial are taking a logically inconsistant position. You want to ignore the actions of the condemned man, a person who raped and murdered a woman after only 2 weeks out on parole. You want to ignore the willful incompetence of the defense attorneys, who knew the proper after-hours filing procedure but did not follow that procedure and then lied about it. But you want us to remember what a HORRIBLE BITCH Judge Keller has always been and not just in this case but her entire horrible career.

If you want to take the past into account lets consider ALL the past. If we do that well then this is no big deal because the killer got what he deserved.

Brian McGiverin said...

I appreciated the link to the formal charging document. It really made it clear that this is a far more remarkable case than the other stories I'd read had led me to believe.

I'm assuming that there will be an opinion from the case that will be made publicly available. Any clue how long it will take them to make a verdict?

Courow said...

Hey just last October Judge Keller wrote an opinion that said defects on the face of the charging instrument are not fatal if the defendant "could have inferred" the State’s intended scope of prosecution by the nature of the court in which the instrument was filed.

I'd love to see that steaming pile used against here in some way here today.

Boyness said...

Wow...Sharon has her fans!!! Y U C K!

Supremacy Claus said...

Wow...rapist-murderer has his fans!!! Y U C K!

Anonymous said...

@ (B) S . Claus,

No one in these comments has spoken in favor of the executed defendent, so what "fans" are you yammering about?

Boyness said...

Supremacy Claus said...

Wow...rapist-murderer has his fans!!! Y U C K!

8/18/2009 10:29:00 PM
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No one on here has said anything in support of the executed man. On the other hand, we are shredding to pieces an activist judge who would have sent your ass to the gurney that day just as fast as she did this guy.

This issue is much, much larger than a single case. Sharon Keller doesn't follow the rules. If the justice system cannot be trusted, and I would argue that in Texas it cannot 100% of the time, our problems have only just begun. Tout your law and order stupidity all you want and God forbid you find yourself a felon someday which in Texas aint hard to do.

henry young said...

Hey, she stood up for what she believed in, I commend her for that, meaning, she is teaching crazy working career people that we all have a family to go home too and we can’t kill ourselves for work…she will get her respect back in due time. I have faith.