New York Times: Keller be gone

Reacting to the recent suggestion that Texas Court of Criminal Appeals Presiding Judge Sharon Keller should be impeached for ordering a clerk not to accept a tardy, last-minute death penalty appeal in 2007, the New York Times editorialized this morning that, "If the facts are as reported, Judge Keller should be removed from the bench." According to the editorial board at the Grey Lady, it would require "monumental callousness, as well as a fundamental misunderstanding of justice, for a judge to think that a brief delay in closing a court office should take precedence over a motion that raises constitutional objections to an execution."

Unfortunately, not only are the facts as bad as the Times reported, they're actually worse. Judge Keller did indeed tell a clerk to inform defendants, "We close at 5," when computer problems delayed a last-minute filing with an execution looming. Making the matter even more egregious, it wasn't her decision to make. By rule, the court had appointed a duty judge, Cheryl Johnson, to make all decisions about the case in its final hours. Judge Johnson was "angry" at Keller for usurping her authority and said later she would have ruled differently.

The more I see this subject debated, the more I think impeachment, though unlikely, may actually be justified - not as some culture-war style anti-death penalty jihad, but in response to egregious, overt judicial activism. Keller really did insert her own political agenda over the rules of the court and the interests of justice; it was not the first time, either; it was just the last straw.

BLOGVERSATION: Patricia Hart says the New York Times got it right. QuickLaw agrees, and Impolite Company hopes impeachment proceedings go forward. Mark Bennett is glad the Commission on Judicial Conduct has grown some backbone. Scott Greenfield hopes this will be a warning to other judges.

RELATED: The Austin Statesman brings word that the State Commission on Judicial Conduct has finally decided to act on a complaint (pdf) against Judge Keller, reporting that:

The state judicial ethics commission Thursday charged Sharon Keller, the presiding judge of the state’s highest criminal court, with violating her duty and bringing discredit upon the judiciary when she declined to allow a death row prisoner to file an after-hours appeal in 2007.

Keller will face a public trial to answer the charges and could be removed from office, reprimanded or exonerated.

“Judge Keller’s willful and persistent failure to follow (her court’s) execution-day procedures on Sept. 25, 2007, constitutes incompetence in the performance of duties of office,” according to a notice of formal proceedings from the state Commission on Judicial Conduct.

The Texas Supreme Court will appoint a special master — a sitting judge from outside Travis County — to preside over Keller’s trial, which has yet to be scheduled.