Thursday, January 21, 2010

When is breaching an "oral tradition" different from violating an "unwritten rule"? When you're Judge Sharon Keller

Readers of this blog by now surely have heard about the fact finding report issued yesterday in Judge Sharon Keller's case before the Commission on Judicial Conduct. From the moment I posted about this on Grits, it was clear lots of people have strong opinions about the ruling. Here's mine.

Having now had time to read and digest Judge David Berchelmann's findings of fact (pdf), I think I've honed in on what bothers me most about this outcome. Berchelmann concludes that Judge Keller "did not violate any written or unwritten" rule of the court. But his own description of facts in the case defies that conclusion. He describes the detailed, unwritten procedures followed by the court in death penalty cases - rotating turns as the "duty judge" in charge of all after-hours communications in the case. Aren't these "unwritten rules," one might wonder? And didn't Keller violate them?

Instead of acknowledging that uncomfortable fact in his "fact finding," Judge Berchelmann employs a bizarre term of art, saying the court's internal procedures represented an "oral tradition," not unwritten rules. An "oral tradition" - as though the Court of Criminal Appeals were some Native American tribal council passing down the stories of their ancestors.

Given that as soon as this "oral tradition" was violated the Court codified it as a public, written rule, it's hard to see much distinction between an "oral tradition" and an "unwritten rule" in this context. Indeed, on page 7 of the opinion, Berchelmann himself uses the terms interchangeably, writing of this "oral tradition" that "the purpose of this rule was to ensure that one judge was the point person for anything related to the case."

How does an "unwritten rule" differ from an "oral tradition" if, even in the parlance of the fact finder, those things are one and the same? What does that distinction say about the veracity of Judge Berchelmann's conclusion that Keller "did not violate any written or unwritten rules"? In that respect, the conclusions reached in the document don't seem to jibe with the facts described.

Bottom line: Judge Berchelmann was asked by the Commission on Judicial Conduct to serve as a fact finder, but instead he acknowledged then ignored the facts, characterizing them in a disingenuous way to excuse Judge Keller's usurpation of the duty judge's responsibilities under this "oral tradition."

Mainly this document is not a statement of facts but an argument by Judge Berchelmann to the Commission about what the punishment should be. Judge Berchelmann's recommendation that Judge Keller deserves no sanction primarily hinges on the conclusion that she violated no unwritten rules. If she had, the ruling implies, the need for stronger sanctions than "public humiliation" might be merited. For my part, I think it's pretty clear she violated the court's unwritten rules, its oral traditions, its verbal prescriptions or its lingual decrees, whatever you want to call them.

The Commission on Judicial Conduct should ignore Judge Berchelmann's punishment recommendation and reprimand Judge Keller, but not recommend removing her, based on these findings of fact. Berchelmann is wrong: Keller did violate the court's unwritten rules. And Keller brought any "public humiliation" on herself. But her technical distinctions between the court and the clerk's office (at one point Berchelmann basically calls her a liar, saying no "reasonable person" would say she'd close the clerk's office again under the same circumstances) probably obfuscate the legal question enough to conclude removal isn't justified, even if "there is a valid reason why many in the legal community are not proud of Judge Keller's actions."

This outcome doesn't surprise me; it's what I predicted after the Commission's charges first came out. But I do think that Judge Berchelmann got it wrong, and I'm disappointed that the thing ended up looking so much like a whitewash.

The Stand Down Project has compiled MSM coverage. See related commentary from:
MORE: Register your opinion in the reader poll in the sidebar: Will Sharon Keller run for reelection when she's up again in 2012, and if so will she win?

61 comments:

doran said...

I suspect that what may have informed Judge Berchelmann's opinion in part is that under the Administrative Procedures Act a "rule" is not a "rule" unless it has been adopted pursuant to that Act. Having been away from that area of practice for some time, I cannot say with certainty that the APA applies to the judicial branch of State Government. If it does not, Judge Berchelmann has simply fogged up the issue by his strong reliance and resort to the concept of a "rule" of the Court. If the APA does apply to the judiciary, then he was correct -- that a rule was not violated because there was no written rule. But there was an informal procedure, which may be what he meant by "oral tradition," which was violated.

This is a highly technical and misleading analysis for Judge Berchelmann to have taken. But, Courts do such things.

The Texas Supreme Court has, for example, in more than one case, determined that "shall" really meant "may."

The US Supreme Court, and the Texas CCA, have ruled that a warrantless and probable causeless stop and pat-down for weapons is not really an unconstitutional arrest and search, because it was not an arrest, it was a "detention," and it was not a search for weapons, it was a -- well, it was a pat down for weapons and neither the Fourth Amendment nor the Texas Constitutional prohibition against warrantless searches and seizures apply to "detentions" and "pat downs."

Judge Berchelmann has simply followed in the tradition of such over-educated sophistry.

Gritsforbreakfast said...

Doran, I suspect there's something else going on, primarily because Berchelmann explicitly claimed she "did not violate any written or unwritten rule." There would never be such a thing as an "unwritten rule" by the line of reasoning you describe, so there'd be no reason to claim she didn't violate one. Right?

I just don't see whey he'd include that language if it didn't mean something. If that's what he's saying, why not just quote the definition of a "rule" (something written), then there'd be no reason to split these bizarre hairs. Quien sabe?

Gritsforbreakfast said...

On calling this distinction without a difference "sophistry," btw, I couldn't agree with you more.

doran said...

Ahhh. But there are "unwritten rules." Maybe not in the judicial branch, but certainly in those State agencies to which the APA applies.

Gritsforbreakfast said...

Doran, describe some of those so we'll know what you're talking about.

doran said...

The ones I have encountered are just exactly like the "unwritten procedural rule" at issue in the CCA. The agency unwritten rules tend not to be substantive, but procedural. Like, they won't consider documents on the same day of filing if filed after a certain time. Or, if filed after a certain time, the document will be "deemed" to have been filed the morning of the next business day. Or they will require some form of document that the Rules of the agency do not even mention. These tend to be rules that the staff makes up as they go along, generally to make their own jobs easier to do.

I can't tell you what all is out there, because I have but a limited experience with practice before State agencies. I'll bet there are people who follow this blog who could give you some concrete examples.

Bureaucratic B.S. type of rules.

Gritsforbreakfast said...

In that case, if under the APA, "unwritten rules" are "just exactly like the 'unwritten procedural rule' at issue in the CCA," then I stand by my contention that Berchelmann got it wrong, whether or not the APA applies.

The whole thing about labeling the court's unwritten rules an "oral tradition" and simply defining his way out of the problem that way seems 100% bogus to me.

Marie T said...

Judge Berchelmann's finding on Page 8 "Judge Keller SHOULD have told Marty to refer TDC's call to Judge Johnson instead of answering it herself;"...Page 11 "She SHOULD have been more forthcoming with Marty that he should, at a minimum, notify Judge Johnson of the TDC's call;"... "She also COULD HAVE CALLED Judge Johnson herself for she KNEW that Judge Johnson was the assigned judge;" "Judge Keller SHOULD have spoken up the next morning....;" Page 15 "She SHOULD have been more open...She SHOULD have direct the TDC's..." continuing on page 15 -
"Although she says that if she could do it all over again she would not change any of her actions, THIS CANNOT BE TRUE."

These words from Judge Berchelmann are the most damming. He is denying what Judge Keller herself said and positing "Naugh, she doesn't really mean what she is saying." He then goes on to say, "No reasonable person..." and that is the crux of the discussion. Judge Keller is not reasonable and therefore should be removed from office.

Gritsforbreakfast said...

Good argument, Marie.

Berchelmann's response would be that, under the law, she had 100% discretion to make the administrative decision to close the office. So even if she made a regrettable decision, he would argue, it was entirely hers to make and unreviewable under the law.

Of course, Rick Casey points out that "Berchelmann didn't mention damning testimony showing that Keller had persuaded a federal judge to dismiss a lawsuit over the same matter by saying it was a 'judicial action,' which gave her immunity that administrative acts don't have." If he'd included those facts in his fact finding, it might have precluded her "administrative" defense.

Anonymous said...

What is, in fact, "a rule" is the Rule of Appellate Procedure that allows filing with the clerk of the court OR the individual justices. And it's darn well in writing! It's also rule, codified in law, that normal business hours for state agencies is 8-5. Given the fact that Dow, et al, could have filed directly with Judge Johnson or any other justice willing to accept their pleading, there was NO compelling need for Keller, as the adminitrative officer of the court, to require the clerk's staff to hang around past their normal working hours thereby violating any number of federal wage and hour requirements for FLSA non-exempt employees.

Would've, Could've, Should've is a far cry from what Keller was legally obligated to do. It's not her job to teach Dow how to practice law, and more than it's her job to wipe his hiney! He's a grown man with a law license! He's a LAW PROFESSOR for God's sake.

I do wonder how Grits would feel if it was revealed that Keller was advising prosecutors on legal arguments that they should make in their briefs on cases heard before the CCA?

At the end of the day, the clerk's office closes at 5:00. Keller knew it. Dow knew it. Everyone who routinely has any business before the CCA (and most other courts for that matter) knows it. There are deadlines and statutes of limitations that lawyers have to know and comply with. It's their job. They are paid to know the law. If there's some reason you're going to have to file late with the CCA, you darn well better get on the horn and be calling a judge to agree to receive your late filing.

Get off the witch hunt against Keller, Grits. You reasoning and logic is totally off base; and your bias against Keller is completely transparent! Have a nice day!

TxBluesMan said...

The next day filing is common, for example, SCOT Local Rules on e-filing (Rule 5.2) state that an e-filed document (other than a complaint) filed after 5:00 PM is "deemed to be the next day..."

While this is not an "unwritten rule," it is common. For example, if an officer is discharged (even at an at-will department), he or she has the right to appeal the grounds for the termination as reported to TCLEOSE on the F-5, which is heard by the State Office of Administrative Hearings (SOAH). SOAH has the same rule on filings (see Rule 155.101, Tex. Admin. Code).

Gritsforbreakfast said...

Anon 11:50, read the opinion. All the couldas and shouldas Marie T quoted about Judge Keller were Judge Berchelmann's opinions. Or is he on a "witch hunt" too?

Ted said...

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master - that's all." (Charles Dodgson AKA Lewis Carrol in 'Through the Looking Glass')

Perhaps WHO is to be master is the question here. Which, of course, leads us to today's US Supreme Court ruling and such issues of that guy behind the curtain and the shock of discovering that, while the rest of us are gambling, the folks running the game rigged it long ago.

-- Ted (political hack not lawyer) Melina Raab

Gritsforbreakfast said...

Bluesy, the "unwritten rules" in question here are the CCA judges' internal policies for assigning a duty judge to handle last minute appeals in death penalty cases, not what time they close the office.

They had a system in place to handle this eventuality - one which has since been codified into a formal written rule. Judge Keller just circumvented it. Also,as Rick Casey points out, since she's claimed in prior litigation that was a judicial, not an administrative decision, the whole "what time does the office close" question might not be that relevant, anyway.

Gritsforbreakfast said...

Hi Ted - the Humpty Dumpty quote is spot on.

TxBluesMan said...

Grits,

I believe that you miss the main point in the findings of fact.

“the majority of the problems involving the Richard execution were the responsibility of the TDS.”

In other words, David Dow didn't do his job very well, and then attempted to pass it off on the judge. It really is quite clear, as I explain here.

Anonymous said...

You just can't do it, can you Grits? You can't bring yourself to utter one word of criticism for a fellow liberalite. We understand. It's an illness without a cure.

Anonymous said...

What she did was wrong, however why should she be prosecuted when the top TYC people were allowed to go scott-free after all their criminal activities?

Anonymous said...

MARGUERITE DIXON.

Whitney said...

What a lot of people seem to be missing is that no matter how poor a job TDS did, Judge Keller acted unprofessionally and violated the court's own unwritten rules. The presiding judge of the state's highest criminal court should be held to the highest ethical and professional standards, which the special master himself repeatedly pointed out that Judge Keller failed to do. Why is it that TDS' mistakes should cancel out Judge Keller's? Is it okay for judges to break the rules as long as the defense attorneys also mess up?

Anonymous said...

Big, gaping silence over bad stuff by David Dow. Hmm. Is this guy some sort of god? Or does this not fit with your anti-death penalty rant?

Gritsforbreakfast said...

I'm not actually anti-death penalty, 2:47, so I don't have an "anti-death penalty rant." I don't focus on Dow because a) the CJC inquiry isn't about him, it's about Judge Keller, and b) she's the elected official who's accountable to the public, not him.

There will be many views expressed about this case and no doubt many will be critical of Dow and TDS. None of that excuses Judge Keller and it's not relevant to the question of whether she's fit to be a judge.

Anonymous said...

MARGUERITE DIXON.

Anonymous said...

You are not anti-death penalty? How long is your nose? Your credibility drops by the word.

Anonymous said...

So, Dow, who with proper legal work, could have delayed an execution, is not held publicly accountable by you? Sorry, but your liberalness is showing again. Pull up your pants.

Anonymous said...

I know of only one other source of law that has oral tradition: the (Catholic) Church. They take it VERY SERIOUSLY -- so Texas should take it seriously too. Especially since this court also reject an appeal based on the fact that the fire expert relied upon what are now known to be invalid theories. Someone has to make it known to the CCA that they have to take their jobs seriously. Removal is not too high a penalty to impose for this violation.

Anonymous said...

The principal cause of Richard's premature demise was the demonstrated incompetence of the TDS attorneys-not some technical non-compliance with some nebulous "unwritten rule" that Keller might have had some kind of moral compulsion to follow. I'm sorry, Grits, but your tortured logic and unwillingness to ackowledge that which has become patently obvious to anyone with a lick of sense has become almost laughable. Perhaps Keller "should've" done more---but she wasn't obligated to. Dow's actions, on the other hand reflect malfeasence or incompetence that appear to have led to Richard's premature demise.

TxBluesMan said...

Anon 7:42,

I agree with most of your post in that Grits is so focused on the evil of the police and the courts that he ignores the evil of those convicted.

In regards to my disagreement with your comment?

The principal cause of Michael Wayne Richard's demise was not the acts of Judge Keller nor the demonstrated incompetence of the TDS. It was, instead, the fact that Richard, only two months after his parole from prison, brutally raped and killed Marguarite Lucille Dixon. Richard confessed and led police to the murder weapon.

The injustice here is that even though it has been shown that Dow "embellished" the facts, that he provided false or "inaccurate" information to the media, that apparently it is OK for Dow to wage war against a Judge who does her job.

doran said...

Tx, the logical implication of your criticism of Grits, and of that of the other Anons, is that Grits and Judge Berchelmann are making common cause in attacking Judge Keller's behavior, rather than that of Dow. Do you really intend to suggest that Judge Berchelmann should not have reached the conclusions he did about Judge Keller? Or that his logic is "tortured," or that he is "waging war" against Judge Keller?

Anonymous said...

Summary:
Two months after he had been paroled from prison, Michael Richard approached Marguerite Dixon’s son, Albert, in front of the Dixon home in Hockley and asked if a yellow van parked outside the home was for sale. Albert said the vehicle belonged to his brother who was out of town and suggested that Richard come back another time. Richard left. When Albert and his sister, Paula, left a few minutes later, Richard returned and entered the house. He took two television sets and put them in the yellow van, sexually assaulted Mrs. Dixon and shot her in the head with a .25 caliber automatic pistol. Richard admitted he was involved in Mrs. Dixon’s murder and offered to help find the murder weapon. Police found the weapon and testing revealed it to be the gun that fired the fatal shot.

Grits (Scott) is so busy pushing his left wing agenda that he tends to hide the facts.

Gritsforbreakfast said...

9:17, Bluesy, et. al, Judge Berchelmann didn't mention any of those facts, either. Neither does he mention the victim's name, the details of the murder, etc.. Do you think that's because the Judge was concealing the truth? Or is it that the issues you're raising are unrelated to the questions surrounding Judge Keller's actions?

Anonymous said...

Gotta keep your eye on Grit. He slick.

Anonymous said...

Wow.

GritsforBreakfast, you write, "He describes the detailed, unwritten procedures followed by the court in death penalty cases - rotating turns as the 'duty judge' in charge of all after-hours communications in the case. Aren't these unwritten rules,' one might wonder? And didn't Keller violate them?"

The answer is "no, obviously, she didn't." Judge Johnson was the duty judge. Judge Keller wasn't. If Judge Keller had spoken to the TDS paralegals, she would've been obligated to tell Judge Johnson about it. However, she didn't speak to the TDS paralegals. A deputy clerk did. That deputy clerk spoke to the general counsel. The general counsel then spoke to Judge Keller.

None of this violated any law or rule, written or unwritten.

There is nothing mysterious or devious about Berchelmann's use of the term "oral tradition"; it was not meant to excuse misconduct because there was no misconduct.

Nevertheless, Judge Berchelmann criticized Judge Keller for failing to make sure that Judge Johnson knew about TDS's communications with the deputy clerk. Judge Keller accepted that criticism, as she should have. It would have been prudent for her to have reminded her general counsel to tell Judge Johnson about the communication (there is some controversy, noted in the findings of fact, about whether the general counsel did or didn't tell Judge Johnson about the converstations TDS had with the deputy clerk). However, imprudence is one thing; misconduct is another.

This isn't very difficult stuff, guys. Yes, it's extremely important but no, it's not complicated, it's not obscure, and it hasn't been whitewashed.

What happened here isn't what you originally thought had happened. Life's like that sometimes. The honorable thing for you to do would be to acknowledge that and adjust your commentary accordingly.

Boyness said...

Sharon Keller is like a sock with a hole in it, she aint goin anywhere!

Gritsforbreakfast said...

10:36 writes: "There is nothing mysterious or devious about Berchelmann's use of the term "oral tradition"; it was not meant to excuse misconduct because there was no misconduct."

If there's nothing mysterious about it, why don't you explain it? How were the court's procedures for designation of the duty judge, etc., not an unwritten rule?

Your comment sounds like somebody who hasn't read the findings. Judge Berchelmann disagreed with you that Keller had no obligation to tell Judge Johnson. See Marie T's comments above at 11:31 for the references where he contradicts you.

IMO this doublespeak was PRECISELY "meant to excuse misconduct." The distinction otherwise serves no purpose either that I can see or that you've identified.

doran said...

Those of you who have been posting snide, off-the-point remarks aimed at grits, personally, really should try to keep in mind that the controversy is not about grits, it is about Judge Keller. And tangentially, about Judge Berchelmann.

Why are not all you critics of grits addressing your remarks to Judge Berchelmann, instead? His Honor's findings and comments are so much more devastating of Judge Keller's behavior, attitude, competency and ethics than anything that could be or has been written by a blogger.

Why don't you all, including Tx, send stern letters to His Honor, setting out therein precisely the same criticisms of him that you have made of Grits? And sign your real names, of course. And send copies to gritsforbreakfast for publication here.

Answering my own questions, I think you don't do something like this because [a] you don't dare use the kind of juvenile and sophomoric language to a Judge that you use here, and [b] you are basically c.s. cowards, afraid to own-up to those biases of your own which inform your comments here, and to identify yourselves.

What I find most interesting and amusing about your comments is that you make them, here. Your commenting is a tribute to grits' skill at continually drawing comments from readers who not only do not agree with him, but who seem to be severely aggravated by so much of what he writes.

It is fun to watch you squirm.

Anonymous said...

This is Anonymous 10:36 (I'll register next time, I guess).

Grits, you wrote, "If there's nothing mysterious about it, why don't you explain it? How were the court's procedures for designation of the duty judge, etc., not an unwritten rule?"

I suppose it's because the oral tradition is a custom that was not a rule, an accepted custom of the court that was a usual practice but not a requirement. I don't really know, though. However, I do know this: It doesn't matter what the precise meaning of the term is because Judge Johnson was the duty judge and Judge Keller had no obligation to tell anyone about the deputy clerk's communications with TDS. In other words, because Judge Keller didn't violate the oral tradition (whatever the precise meaning of the term), the distinction you are trying to make between an oral tradition and an unwritten rule is irrelevant. It's interesting, I suppose, but it's a red herring.

As for MarieT, she ably recites Judge Berchelmann's use of the word "should." Note that he didn't use the word "must." The reason for that is, as I said last night, Judge Keller really "should" have told Judge Johnson about the TDS paralegals' communications with the deputy clerk as a prudential matter; but that, because she was not the duty judge, she had no obligation to do so under the court's oral tradition, unwritten rules, written rules, canons of ethics, or laws.

Again, I agree with Judge Berchelmann that Judge Keller should have communicated better with the court. Really, she should have. Judge Keller's lawyer has said that he agrees that she should have, too.

However, what one should do and what one must do are not always the same thing. They are not the same thing here. Judge Keller deserved the ample criticism she received in the findings. She also deserved to be exhonerated of the charges against here.

That's because, even though she should have done things differently, SHE DID NOT VIOLATE ANY RULES OR LAWS. If you disagree, fine: now would be the perfect time to identify a rule or law that she violated. In your post, you suggested that she violated the "oral tradition" regarding the duty judge. I've demonstrated that she didn't (because, again, she wasn't the duty judge and didn't speak to a party.

Thanks for your time.

Anonymous said...

doran,
I think the main reason most people are posting comments critical of Grits regarding this issue is because he has been one of the most vocal public critics of Judge Keller throughout this whole ordeal. He gobbled up the bogus claims advanced by Dow and the TDS "hook, line and sinker;" and used them to justify his argument that she should resign, be impeached, tarred and feathered, etc., etc., etc.. A lot of his readers, at that time, cautioned him about jumping to conclusions---that there was more to this than met the eye or was being reported in the media. And yet he held fast to his guns promoting that Keller violated all sorts of laws, rules, ethical standards, and so on in her zeal to ramrod poor ol' Michael Richard all the way to the gurney. Well now we know better!!! The truth is out!!! Whatever mistakes in judgment she made as it relates to the events leading up to the Richard execution; we now know that they had little or no bearing whatsover on what ultimately transpired that day. She said "the clerk's office closes at 5:00." That's all she did. Well big woopty-doo!!! You would have thought, based upon TDS claims (repeated ad nauseum on this blog) that Keller not only conspired to railroad Richard, but that she was also the shooter on the grassy knoll!!!

A lot of folks who read and comment on Grits' blog do so for the shear amusement of watching how ridiculously comical liberals can be when they get all self-absorbed in their own self-rightousness. They can be completely delusional and you can look no further than what's happening in Washington--and this week in Massachusetts--to see exactly what I'm talking about. Those of us who stepped back from the anti-death penalty propaganda and watched this case develop objectively knew that it was just a matter of time before the truth came out. The anti-death penalty folks are so sanctimonious that they have no problem whatsover telling a "bald faced lie" when they think it will advance their cause. The only "squirming" going on right now is Grits, and his liberal buddies, trying to still salvage some semblence of a justification for claiming Keller did anything wrong at all. Now THAT is entertaining!

TxBluesMan said...

Doran,

No, I agree that Judge Keller could have done things better, but I also agree that she violated no actionable standard that would warrant removal or sanctions. By the same token, I agree that Dow and the TDS performed miserably and then attempted to cover it up by blaming the judge.

Grits,

No, I'm aware that it does not have a bearing on the inquiry into Judge Keller's actions, I am merely pointing out that you have shown a marked tendency ignore the fact that the criminal deserves what they have earned in order to go after those men and women that protect society, either on the street or the bench.

Mark # 1 said...

You people who are following the shiny toy under the sofa by referring in any way to whomever the criminal defendant was or what he did just don't understand the issue here. Further, by the comments here, It's very easy to see that most of the anon mouth-breathers have not even read the findings of the special master. But, then, he's probably part of the "liberal anti-death penalty crowd" as well. . .

Anonymous said...

Grits? Where are you? Want to comment on the fact that Keller didn't violate the "oral tradition"? And because she didn't violate the "oral tradition", it doesn't matter whether that term alludes to a rule or a mere custom? And that, therefore, the use of the term "oral tradition" can't be a nefarious scheme by one Republican judge to exonerate another? (this is Anonymous 10:36 and 8:28, by the way -- I really will register next time I comment when I have more time). Thanks.

Gritsforbreakfast said...

To 1:22 - The oral tradition wasn't a "custom," it was a detailed set of prescriptions that were codified as soon as they were violated. That fact alone - and the fact that the written rule was identical to the unwritten version - make me dispute your claim that it was merely a "custom" (as though we were describing the habit of prayer before meals), as opposed to detailed rules and procedures.

The specific, unwritten rule she broke were the procedures designating a duty judge to receive all communications and make all decisions on the case. This was an unwritten rule.

Since Judge Keller claimed in federal court this was a judicial decision, not an administrative one (something Berchelmann omitted from his fact finding), she DID have an obligation to follow the court's unwritten rules. Your argument would have more merit if it could be credibly claimed (as Berchelmann tries to) that this was an administrative decision, or could be construed as such. The fact that Keller said in federal court it wasn't an administrative decision but a judicial one means she DID have an obligation to defer to Johnson, IMO - she can't have it both ways.

Gritsforbreakfast said...

Bluesy writes, "I'm aware that it does not have a bearing on the inquiry into Judge Keller's actions."

In other words, you're aware your comments were a complete red herring and utterly irrelevant, but you thought you'd take an anonymous cheap shot, anyway. That's typical. Thanks so much for your constructive participation.

And to others: I deleted several off-topic troll comments, btw, if the writer was wondering. If you want to insult people, at least do so in the context of the topic of the post. Content-free smears will be deleted.

Anonymous said...

(This is Anonymous 1:22. I still intend to register. Sorry.)

"The specific, unwritten rule she broke were the procedures designating a duty judge to receive all communications and make all decisions on the case."

1. Judge Keller never spoke with TDS. She never even spoke with anyone who spoke with TDS. She spoke with someone who spoke with TDS. The person -- the deputy clerk -- whom the person she spoke with -- the general counsel -- had an obligation under the [whatever the hell the thing should be called: an unwritten rule, a custom, Davy Crockett, Neptune, labrador retriever, and so on] had an obligation to tell the duty judge about his communications with TDS. Nevertheless, I -- along with Judge Berchelmann and Judge Keller and pretty much everybody else -- thinks that, as a prudential matter, Judge Keller *should* have told Judge Johnson about the deputy clerk's communication; or that she *should* have told the general counsel to tell the deputy clerk to tell Judge Johnson about the communication with TDS. However, she was not *required* to do so under the [Davy Crockett]. This distinction is important.

2. The duty judge wasn't supposed to make all decisions in the case. The 5 p.m. closing time is a statutory requirement. Alternatively, the "chief administrator of a state agency" -- Judge Keller -- could keep the clerk's office open past 5 p.m. In other words, the duty judge can't, as a matter of law, set the hours of operation of the court or keep the clerk's office past 5 p.m. (What she can do is accept filings from anyone at any time. This is true, as I'm sure you know, of all of the judge of the court under the rules appellate procedure.)

3. I don't know what you mean by "broke . . . the procedures designating a duty judge." There's been no controversy about the manner of Judge Johnson's selection as duty judge.

That's really all there is to say about this. You're objectively wrong about the importance of the distinction between the terms "oral tradition" and "unwritten rule."

However, that doesn't mean that you're objectively wrong about anything else regarding this case. I encourage you to blog more about the case and discuss your opinions with us. It's wonderful that you spend your time and effort on this and the Texas legal community owes you quite a bit. Accordingly: Thanks.

Anonymous said...

Grits removed my warning that "political correctness" is putting our lives in danger. He doesn't want you to have this information.

Anonymous said...

Grits is an advocacy blog. He tries to promote his views, not yours.

Gritsforbreakfast said...

8:02, when Keller spoke with the clerk, she made a decision to instruct him not to accept the filing after 5 o'clock. This was NOT an administrative decision as you want to pretend. We know this because Judge Keller told the federal court it was a judicial ruling so she could gain absolute immunity. So if it's a judicial ruling, it doesn't matter if she told the clerk or TDS directly, it usurped a decision that should have been Judge Johnson's to make.

You're pretending that by speaking with the clerk she created a Chinese wall that shielded her from accountability. But if this was a judicial decision - as she told the federal court, then you're wrong. She usurped Judge Johnson's role as duty judge under the court's unwritten rules by making that decision. If it was an administrative decision, by contrast, then she misled a federal court.

To 9:26, see my comment above about staying on topic. The comments I deleted were a) filled with personal smears and/or b) had nothing to do with the subject of the post.

Anonymous said...

"You're pretending that by speaking with the clerk she created a Chinese wall that shielded her from accountability. But if this was a judicial decision - as she told the federal court, then you're wrong. She usurped Judge Johnson's role as duty judge under the court's unwritten rules by making that decision. If it was an administrative decision, by contrast, then she misled a federal court."

The judicial/administrative-decision question -- like the financial disclosure forms -- are important problems that may yet bring Keller down. I look forward to reading what you say about this because it's interesting.

It is, however, also completely irrelevant to the specific argument that you made in your post and that I have been refuting over and over and over again (note that I'm not saying it's unimportant or wrong; rather, I'm saying merely that it's irrelevant here). The reason for that is very simple and one that I've already discussed in this comment thread:

Judge Johnson didn't have the authority to keep the clerk's office open past 5. Judge Keller did. Closing time of state offices is governed by state law (ch. 658 of the Government Code if I remember correctly, but don't hold me to it). That law provides that normal office hours are 8 a.m. to 5 p.m. but that the chief administrative officer of an agency can change those times. See? Whether that's a judicial decision or an administrative decision is something that Judge Keller's lawyers -- and the rest of us -- will get to talk about quite a bit over the next year or so. However, the specific question that Judge Keller answered -- whether the clerk's office could stay open past 5 p.m. was, under state law, Judge Keller's to answer and no one else's.

Having said that, under the Rules of Appellate Procedure, any judge could accept a filing at any time. Not just Judge Keller or Judge Johnson -- any judge on the court. As duty judge, Judge Johnson's responsibility was not to decide whether the clerks should stay past 5 p.m. or even to accept late filings (although, again, she could have accepted late filings): it was to receive communications about pending executions and to do other things necessary to make sure that the court completed its business (e.g., call the other judges if a vote needed to be taken on something).

To re-cap, Judge Keller didn't usurp Judge Johnson's role: Judge Johnson couldn't have kept the clerk's office open past 5 p.m.; Judge Keller performed one of her duties as presiding judge of the court.

Oh, and as for the chinese-wall stuff: as I'm sure you know from reading the court's now-written rules regarding execution-day procedures, all calls regarding the execution must be referred to the duty judge. That means that the deputy clerk should have called Judge Johnson when the TDS paralegals called him. It doesn't mean that Judge Keller had to tell Judge Johnson that she talked to her general counsel about the case. (But, for about the 50th time, yes, as a prudential matter, she should have told Judge Johnson about the call or instructed the court's general counsel to do so).

Gritsforbreakfast said...

1:21 writes: "However, the specific question that Judge Keller answered -- whether the clerk's office could stay open past 5 p.m. was, under state law, Judge Keller's to answer and no one else's."

I see your point. But that's a particularly generous reading of the findings on Judge Keller's behalf. Berchelmann was less sure than you, declaring it was "unclear" whether Keller was referring to the clerk's office or the court and that most likely no one "was making a precise distinction between the two."

Who was "we" in "we close at 5," the court, or the clerk? Quien sabe? Judge Keller has given different answers depending on which one will get her off the hook in which venue.

Also, when Berchelmann said Judge Keller "should" have notified Johnson, I read that as saying it was dictated by her obligations under the duty-judge rule not to make decisions that were others to make (and it was a "rule," not just an "oral tradition"). He wasn't saying it would be nice, he was saying "that's what she should have done." And she didn't.

Finally, while she was not REQUIRED to tell her colleagues the next day, one might infer that the failure to do so demonstrated a guilty frame of mind because she knew she'd usurped Judge Johnson's authority and would be embarrassed to admit it. Judge Johnson was (rightly) mad when she found out.

We may just disagree on this. You accept that "we" referred to the clerk, not the court, and that this was as an administrative decision about the clerk's office even though she swore to a federal judge it was not. But when I see her speak out of both sides of her mouth trying to weasel out of accountability and concealing her conduct from her peers, that seems like guilty behavior that makes me think the interpretation in the Commission on Judicial Conduct's original charge was probably the right one.

Anonymous said...

"I see your point. But that's a particularly generous reading of the findings on Judge Keller's behalf. Berchelmann was less sure than you, declaring it was 'unclear' whether Keller was referring to the clerk's office or the court and that most likely no one 'was making a precise distinction between the two.'"

My point would be just as valid if she were referring to "court" rather than "clerk's office." That's because Judge Johnson wouldn't have any authority under chapter 658 to keep the "court" open past 5 p.m. And because Judge Johnson wouldn't have any authority to keep the court open past 5 p.m., Judge Keller couldn't have usurped Judge Johnson's authority when Judge Keller reminded the general counsel that they closed at 5 p.m. Okey doke?

Guess I'll wrap this up: In order for the argument in your post to have merit, you'd have to establish that Judge Berchelmann found that Judge Keller violated the "oral tradition". He didn't do that. In other words, if, as you argue, Judge Berchelmann's purpose in creating the term "oral tradition" was to provide a category of guidelines that were hortatory rather than mandatory so that Judge Keller could violate them without being punished, he'd have to have concluded that she violated them; but because he didn't so conclude, Judge Berchelmann must not have used the term "oral tradition" as a means of avoiding a recommendation that Judge Keller be punished.

A corollary to my proof is the following: what else in this matter could the term "unwritten rules" -- and you'll recall that Judge Berchelmann found that Judge Keller broke none of those -- refer to besides whatever "oral tradition" refers to? Seriously. Think about it.

Gritsforbreakfast said...

2:30 writes: "In order for the argument in your post to have merit, you'd have to establish that Judge Berchelmann found that Judge Keller violated the "oral tradition". He didn't do that."

Yes, he did. Berchelmann wrote that under this "oral tradition," Judge Keller "should have told Marty to refer the TDS's call to Judge Johnson instead of answering it herself." The "answering it herself" part is what she did wrong under the "oral tradition," unwritten rules or whatever you want to call them.

He then goes on to say Keller's excuse for not referring the matter to Judge Johnson is that she was only referencing the clerk's office closing time, which gets us back to her contradictory positions in state and federal court.

Like I said, I understand your reading of this, but it's a very generous one toward Judge K.

Anonymous said...

"Yes, he did. Berchelmann wrote that under this 'oral tradition,' Judge Keller 'should have told Marty to refer the TDS's call to Judge Johnson instead of answering it herself.' The 'answering it herself" part is what she did wrong under the "oral tradition,' unwritten rules or whatever you want to call them."

I think I've adequately demonstrated the difference between "should" and "must." For the sake of argument, though, let me stipulate that you're right. Even pretending, as I am now, that Judge Keller violated the oral tradition, how can your argument survive the fact that Judge Berchelmann refers to the "oral tradition" as a "rule" (can't remember which page it's on but I know the two terms are used in the same paragraph to refer to the same thing). And I'll repeat the question I asked in my previous comment: What could the term "oral tradition" refer to that the term "unwritten rules" does not?

There's just nothing here, Grits. You picked the wrong ground on which to fight your battle. As I've said before, that doesn't mean that you're wrong about everything in this matter and that Keller is awesome and the death penalty is neato; it just means that Judge Berchelmann didn't use the term "oral tradition" to cover anything up.

I know this will sound arrogant, but that's ok. I'm arrogant: I won this argument. You lost. If you make another argument, you're liable to win it. I'll holler at you then.

JWM said...

The term "oral tradition" was used during the hearing by both sides and by several witnesses. It originated before the findings were written.

Anonymous said...

Grits - I must say that I do not always agree with you. That said, I do agree with you here. And more than that, I empathize with your attempts to use logic with people who obviously don't get it. Nothing about Dow or TDS's actions or even the actions of the defendant in this case are relevant. What is relevant is whether or not Keller prevented an appeal from being filed on the SAME DAY that the U.S. Supreme Court agreed to hear arguments regarding whether or not the same lethal injection used in Texas constituted cruel and unusual punishment. Everyone involved in the Texas justice system should have worked together to ensure no executions were carried out until the Supreme Court issued its opinion in the matter. The "honorable" judge in this case (whom I suspect has recently received a lot of "campaign" money) made a lot of findings regarding what she "should" have done. Keller is the highest ranking person on the CCA and should have acted ethically and must be held to a higher standard and the fact that people can say how many different things she "should" have done must considered when determining if she should be removed from office. Her unethical (or at least unprofessional) actions suggest she that if she can't do things correctly in a case where the ultimate penalty is on the line (death), she is not likely to behave appropriately in other cases. She wields so much power over some of the most powerless peole in the state (I remind you that not all convicted people are guilty, in case you haven't been following that lately) that she needs to be removed from office.

Anyway, I wanted to say that Grits, I thank you for holding to your guns and pointing out the logical fallacies in this "fact finding" and in the comments of people on this blog. I probably would have given up by now. : )

Anonymous said...

Sharon Keller, if nothing else, is a spoiled rotten, GOP-holier than thou b---h who is TYPICAL of what's wrong in Texas' justice system. She was WRONG period, end of story.

Of course, one of her GOP cronies, would offer her a glowing report with nothing more than cursory slaps on the hand.

Dont expect anything to be done to this woman other than the "public humiliation" she has suffered. She will run, be re-elected, hell at this point she could probably get elected Governor.

The Sharon Killer case is a detailed and prime example of what's wrong in this state...bottom line though...no one will care on election day.

Anonymous said...

Maybe Bill "Sanctuary City" White will win the governor's race.

Oronmay said...

Both the 5th Circuit and the US Supreme Court also refused to stop the execution AFTER the Keller "we close at 5" debacle in Texas. The Supreme Court wouldn't even *consider* stopping the execution in light of their own Baze announcement. Although the federal courts do not consider this sort of appeal until State remedies are exhausted, given that the execution would occur before sunrise, isn't this the same sort of bullshit technicality as "we close at 5?"

Where is the outrage, people? Doesn't Ruth Bader Ginsburg need to be thrown under the same bus as Judge Killer?

Gritsforbreakfast said...

3:12, saying you "win" doesn't make it so. You're reading the word "should" in a way that's VERY generous to Keller and which ignores all the language around the sentence in question. The judge said that under the oral tradition, Keller SHOULD have done one thing and INSTEAD did another. "Should" is only part of the sentence, you have to read the whole thing. What she did was wrong. This simply WAS NOT her decision to make and she made it anyway.

Your question "What could the term "oral tradition" refer to that the term "unwritten rules" does not?" is exactly MY point. Berchelmann created a distinction without a difference. She DID violate the rule and he's giving her a pass anyway for no good reason but he feels sorry for her "public humiliation." That's the whole point of this post. The judge's conclusions did not match the facts he details.

10:16, thanks for your kind words.

Oronmay, as I'm sure you know, it's not that SCOTUS wouldn't review the case, it's that they COULDN'T unless the CCA did. Keller's actions had the effect of CAUSING those other courts to not review the case. That's a complete red herring.

Anonymous said...

"This simply WAS NOT her decision to make and she made it anyway."

Here's how it works, Grits: judges have the powers and duties that the law and rules give them (there's a common law doctrine regarding "inherent authority" but it's irrelevant here). The rules -- the "oral tradition" -- require that communication be directed to the duty judge so that there's someone on call to accept submissions and tell the other judges about them. That's it. The duty judge has no other authority under the rules. OK? The rules don't give the duty judge authority to close or open the clerk's office or the court. If a rule did so provide, it would conflict with section 658.004 of the Government Code. That rule would then be invalid. Section 658.004 gives the chief administrator of a state agency -- Judge Keller -- authority to close or open the court at hours different from those prescribed by law. That means that leaving the court open past 5 p.m. was, as a matter of law, only Judge Keller's to make. I hope you understand all of this. If you don't, well, that'd suck.

You then write, "Your question 'What could the term "oral tradition" refer to that the term "unwritten rules" does not?' is exactly MY point. Berchelmann created a distinction without a difference. She DID violate the rule and he's giving her a pass anyway for no good reason but he feels sorry for her 'public humiliation.' That's the whole point of this post. The judge's conclusions did not match the facts he details."

I demonstrated in the first paragraph of this comment -- as I've demonstrated many times before in this comment thread -- that Judge Keller didn't violate a rule or law when she told the general counsel to tell the deputy clerk that they close at 5. But leave that to one side for a minute or two. Doesn't the fact that Judge Berchelmann called the "oral tradition" a "rule" in his finds of fact vitiate the possibility that he invented the term "oral tradition" to create a category of guidelines that Judge Keller could violate without being punished? The only possible answer to that question is "yes." Similarly, doesn't the fact that both sides referred to the "oral tradition" at trial also vitiate the possibility that Judge Berchelmann invented the term "oral tradition" to create a category of guidelines that Judge Keller could violate without being punished? The only possible answer to that question is "yes."

What you are left with is this and this alone -- nothing more: That Judge Berchelmann identified a rule that Judge Keller violated but either forgot or ignored it when he concluded that she'd violated no unwritten or written rule.

That's risible, but that's fine. What's not fine is allowing your original argument to stand when it has been thoroughly, utterly, repeatedly destroyed. For the last time -- yep, I'm getting the hell out of this thread for good in a couple of minutes -- you are still perfectly welcome to criticize Judge Keller for lots of different things and present lots of different arguments in doing so. Your original argument is, however, wrong; it is wrong as a matter of law and it is wrong as a matter of fact. Say whatever else you want about this -- hopefully we'll be back to refute it if we disagree with it -- but please, for your sake and ours, abandon the notion that Judge Berchelmann invented the term "oral tradition" to create a category of guidelines that Judge Keller could violate without being punished.

Gritsforbreakfast said...

7:15 - we've been through this already. We just disagree.

You write: "The rules -- the "oral tradition" -- require that communication be directed to the duty judge so that there's someone on call to accept submissions and tell the other judges about them."

That's a mischaracterization. The rules designate the duty judge to make ALL decisions about the case. Judge Keller usurped that "oral tradition," rule, whatever you want to call it. You're (somewhat conveniently) ignoring that aspect of the duty-judge arrangement.

As such, you have "destroyed" no one's arguments - in fact, you're arguing in circles. You want to hinge your argument on the administrative/judicial distinction - that the closing time for the clerk's office is all that was at issue. But Judge Keller swore to the federal court that wasn't what this is about - that she was making a judicial decision (which should have been Judge Johnson's). It's fine if you want to interpret the facts in a way that's most favorable to her, but let's not pretend there's not SERIOUS problems with that stance.

Anonymous said...

"That's a mischaracterization. The rules designate the duty judge to make ALL decisions about the case. Judge Keller usurped that "oral tradition," rule, whatever you want to call it. You're (somewhat conveniently) ignoring that aspect of the duty-judge arrangement."

Oh God I lied. I'm back. Dammit. Read page 7 of the findings of fact. Read the once-unwritten rules that were reduced to writing a couple of years ago. You'll find that the rules did not and do not give the duty judge the power or duty to do anything other than receive and relay communications. That's it. If the rules provided otherwise -- specifically, if they purported to allow the duty judge to keep the court open past normal closing hours -- they would be invalid because they would conflict with sction 658.004 of the Texas Government Code. That's it, Grits.

Like the rest of my arguments, that argument has absolutely nothing to do with the judicial/administrative distinction. That distinction is interesting and important, but it is irrelevant to your post, which, appropriately enough, is all I've been discussing in this comment thread.

And no, the point of your post wasn't that Judge Berchelmann forgot or ignored that he'd identified a rule that Judge Keller violated when he concluded that she hadn't violated a written or unwritten rule. Whether you realize it or not, your point was that he used the term "oral tradition" in order to absolve her of guilt. I've demonstrated that she didn't violate that oral tradition -- that only she had the power under state law and the court's written and unwritten rules to keep the court open past 5 p.m. -- but that's neither here nor there for purposes of tonight's lesson: what I want you to realize is that the fact that Judge Berchelmann called the "oral tradition" a "rule" and the fact that both sides referred to the term "oral tradition" vitiates your original argument which -- and this can't be be news to you by now -- was that Judge Berchelmann tried to avoid punishing Keller by claiming that she violated a mere "oral tradition" rather than a rule or law.

I'm going to be nice and not say anything mean about you now. Instead, I'll say that, even though we're obviously on the other side of issues like these, you seem like a good, honest, earnest guy and I really don't want you to make the mistake of defending your original argument because it makes you appear to be something you're not -- a complete idiot. Okey doke?