Thursday, February 19, 2009

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.


Anonymous said...

If this occurred in 2007, why are impeachment proceedings just now being introduced by the state rep?

It don't smell right.

Anonymous said...

I thought politicians were only impeached for crimes and when it was that we just don't like the way they do the job then we elect somebody else next time.

Rage Judicata said...

anon 8:43:

If this occurred in 2007, why are impeachment proceedings just now being introduced by the state rep?

If David Temple killed his wife in 2004, why wasn't he prosecuted until three or four years later?


Republican judicial activism? That's unpossible!

Mack T. Harrison said...

If this occurred in 2007, why are impeachment proceedings just now being introduced by the state rep?

Because the Legislature only meets in regular session every two years, and this happened in October, after the 2007 session had ended.

Gritsforbreakfast said...

Repro writes: "I thought politicians were only impeached for crimes and when it was that we just don't like the way they do the job then we elect somebody else"

That's the position I initially took when the resolution was filed, but I can see merit in the the argument that the fact that she supplanted Judge Johnson's authority in violation of court rules could rise to the level of an impeachable offense, particularly in a capital case.

And to 8:43 - this is the first possible time such a resolution could have been proposed.

Anonymous said...

God this is lame. A judge gets a phone call and is expected to do the attorneys' job for them. Gimme a break. The court closed at five.

I wish Keller had told the attorneys "lack of plannning on your part does not constitute an emergency on my part."

Gritsforbreakfast said...

10:35, you're ignoring that Keller is the one who broke the rules. She had no business telling the attorneys anything. Judge Johnson was assigned to the case.

Anonymous said...

I am not ignoring the rules. They called, she was there and answered a question. The attorneys created this problem, not her.

Sam said...

OMG 11:25, does it really matter that the attorney's effed up? It was a death case, someone's life hung on the decision to close at 5 pm. Are we that callous that we can't make an exception?

I mean really, as a prosecutor I want to see justice done and that includes allowing the process to proceed even if it means that Judge Johnson would of stayed a little longer to review the documents. Which of course, she didn't know about because Justice Keller didn't let her know, I believe.

Anonymous said...

It would be different if the convicted killer was claiming he was actually innocent of the crime.

His appeal was that leathal injection was cruel and unusual because MAYBE it hurts.

I bet it hurt a lot less than what his victims endured.

Gritsforbreakfast said...

Actually, it wouldn't be different 12:12. At issue isn't whether or not you support the death penalty, it's whether judges should put their personal agendas above the rules.

Anonymous said...

Yes Sam it does. Remember, these guys could have filed their lethal injection claims much sooner but didn't. And then they come to the court with some tale of woe about computer problems and the judge says, "Guys, we close at five." And we're going to impeach the judge?

Sam, you're a wuss. It has NOTHING to do with callousness. It has to do with lawful process. The courts don't exist to favor one litigant over all others. And certainly judges aren't expected to do attorneys' jobs for them.

And as for Grits' personal agenda argument. Hello genius, the attorneys called late in the day and asked if they could file late. They didn't cite any authority or anything typically associated with motions etc. And the judge was supposed to deduce from that some right that they were asserting to pass along this telephonic request to file late. Maybe so, but the bottom line is that's why attorneys are supposed to make arguments, not just ask if the court can stay open late. If we don't do that, then you have issues of favoritism. And now we want to impeach a judge because she told these yo-yos the court closed at 5.

Let's see you apply that standard to all the f'in liberal judges who, in the face of controlling legal authority cited in briefs, go the other way

TxBluesMan said...

Just out of curiosity, how are you going to get around Article XV, Section 1 of the Texas Constitution?

A Justice of the Court of Criminal Appeals is not listed as an officer that the Texas Senate may sit as a court of impeachment for...

It seems that when the Court of Criminal Appeals was created (by amending the Texas Constitution), they forgot to add them to the part dealing with impeachment.

They are covered by Chapter 665 of the Government Code, but there is a pretty large loophole there - since a statute cannot change or alter the Constitution...

Gritsforbreakfast said...

To 1:03 - blather, make excuses, and call people names all you want. It still wasn't her call to make.

Bluesy, if you're correct (I haven't checked it), that's an excellent point.

The truth is impeachment is going nowhere and the only way to oust Keller is at the ballot box in 2012. But it's still funny to see the lawnorder types blustering to defend an activist judge who puts her agenda above the rules.

TxBluesMan said...

I agree that the articles of impeachment are a lost cause (but good politics).

In any case, next time you are at the Lege, you ought to mention that Art. XV, Sect. 1 probably needs to be amended...

I also don't agree that impeachment is the correct remedy for this - it doesn't rise to that level of misconduct.

Sam said...

Okay, I guess because I would rather err on the side of not killing someone I am a wuss.

Cogent and compelling argument on your part to resort to name calling.

Also I am not anti-death penalty in case you figured I was.

Anonymous said...

"If this occurred in 2007, why are impeachment proceedings just now being introduced by the state rep?

It don't smell right."

TX Blues Man....You hit it on the head, it is "good politics."

"Because the Legislature only meets in regular session every two years, and this happened in October, after the 2007 session had ended."

I know they only meet every two years, unless it's a special session. If this was such an important issue to the state rep, why not ask for a special session?

"If David Temple killed his wife in 2004, why wasn't he prosecuted until three or four years later?"

Certainly wasn't because it made good politics. You and I both know there is no limitation on a murder.

Gritsforbreakfast said...

Bluesy, I'll run that up the flagpole, but with Burnam's deal it would probably become more partisan than it should be.

Sam, don't you get it?! It's not enough to support the death penalty, one must favor it above all other punishments in every case for every serious offense to curry favor with the Kellerites. In addition, Kellerites consider the smallest judicial delay - even to vet actual innocence claims - as tantamount to opposing capital punishment. Without that framework, it's difficult to understand where commenters like 1:03 are coming from.

To 1:50 - only the Governor can call a special session. Burnam's resolution is as timely as it could have been.

TxBluesMan said...


Minor point of error. For impeachment purposes, the House may be called into special session by: 1) the Governor; 2) the Speaker on written request of 50 or more members; or 3) by proclamation signed by a majority of the members of the House.

For trial purposes, the Senate may be called into special session by: 1) the Governor; 2) the Lt Gov, if the Gov has not called a session within 10 days of receiving the articles of impeachment; 3) the President Pro Tem of the Senate if the Lt Gov has not called a session within 15 days; or 4) by proclamation signed by a majority of Senators if the President Pro Tem has not called a session within 20 days.

Anonymous said...

This was just announced today.

State Commission on Judicial Conduct Notice of Formal Proceedings Against Sharon Keller

Anonymous said...

To 1:03 and those who continue to blame the defense attorneys and anyone or thing other than Keller, be reminded that they couldn't have filed any earlier as the Supremes had only announced that they would hear Baze v. Rees that morning. Members of the the CCA anticipated some type of filing based on Baze. At 2:40 PM an e-mail was sent to all CCA judges that a writ and application were to be filed. Prior to 5 PM attorney's called and requested permission to file a few minutes late. Judge Keller was aware of the request and intentionally prevented the receipt of the filing and though aware of Baze and admitted that she knew that it had been common in the past to recieve late pleadings on execution days after the clerks office closed and she knew that the execution day procedures called for the designated judge - Judge Johnson - to remain available after hours to receive last minute communications regarding scheduled executions. Per the State Commission on Judicial Conduct Notice of Formal Proceedings for removal.

Anonymous said...

It gets better! the Formal Notice states that the next morning Judge Keller failed to inform her own associates that the attorneys had called requesting to file after 5PM but that she had personally intervened and prevented them from doing so, never informing Judge Johnson. Because of her unilateral activist decision-making and violation of CCA Execution-Day Procedures Richard was the only individual executed prior to the court's decision in Baze.

Anonymous said...

You hit it on the head again Tx Blues.

Anonymous said...

Anyone who thinks Judge Keller may not be in deep doodoo should read the State Commission on Judicial Conduct charges against her. Can be clicked in Scott Cobb's comment on this post. Thanks for providing that, Scott.

Charles Kiker

Anonymous said...

I'm glad to see the Commission take this action, although I don't think it's fair to blame them for the 'delay.' The last thing anyone should do is rush to file a complaint of this magnitude.

This case also gets at the problem of how can judicial administrative laws be enforced against a judge who refuses to follow the law. If a trial judge doesn't follow a substantive law, you can simply appeal. If a high appellate judge refuses, you're SOL. If any judge refuses to follow an administrative law, you're SOL. Take for example the Fair Defense Act's mandatory requirement that judges follow a "wheel" to ensure the appointment of qualified counsel to indigent defendants, and to avoid cronyism. Despite the crystal clear "shall" in the statute, many trial judges still refuse to follow it. As it is, there is no enforcement mechanism against that.

Anonymous said...

Don't forget this appeal fizzled at both the 5th Circuit and the US Supreme Court later on the evening of the execution AFTER the antics of Judge Killer.

No blood. No foul.

Anonymous said...

Anon @10:32, the higher court appeals failed because they weren't the appropriate venue for the appeal.

The Texas CCA should have handled the appeal. Without them handling the appeal, the 5th Circuit and Supreme Court dismissals are near automatic.

It's wholly inappropriate to imply that the rejection by the 5th Circuit and Supreme Court occurred after a review of the merits of the petition, because it's simply untrue. There was a technical issue that weighed against the appeal, one created by Sharon Keller's actions, and that technical issue meant the appeals would be denied.