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:
- Rick Casey
- Simple Justice
- Robert Guest
- Jeff Gamso
- Jamie Spencer
- Michael Hall
- Wall Street Journal Law Blog
- The Texas Tribune
- Off the Kuff