Tuesday, February 17, 2009

Should Presiding CCA Judge Sharon Keller be Impeached?

Rep. Lon Burnam of Fort Worth, a member of the Texas House of Representatives and perhaps that body's most liberal member, has filed a resolution, HR 480, which amount to articles of impeachment to remove from office Presiding Court of Criminal Appeals Judge Sharon Keller, a jurist who openly declares herself "pro-prosecution," thumbs her nose at innocence claims, and who was the subject of a complaint filed with the Commission on Judicial Misconduct signed by 130 attorneys.

To be fair, Burnam's hardly the first to suggest this. And the idea has not been unkindly received: See bloggerly reactions here, here, here, here, here, and here. See also initial MSM coverage of the impeachment articles from Burnam's hometown paper.

I certainly understand Lon's motivation; it was the same impulse that drove me to pen an essay in 2007 titled "Why no one likes Judge Keller and she should quit and go home." I've made my own brief against Keller many times on this blog, calling her poor stewardship of the Court of Criminal Appeals one of the top ten Texas crimnal justice stories of 2007, writing in a year end wrap-up:
Sharon Keller Disgraces Court, State
While in most states the big death penalty news in 2007 was the de facto moratorium until SCOTUS decides on the constitutionality of lethal injection procedures, in Texas the bigger controversy arose around the de jure decision to execute Michael Richard after SCOTUS issued its decision to review lethal injection in Baze. How many sitting judges can say about 150 attorneys and a thousand other citizens have signed onto complaints against them with the state Commission on Judicial Conduct? Only one that I know of: Texas Court of Criminal Appeals Presiding Judge Sharon Keller. Her decision not to notify her fellow judges of an 11th hour delay in a death penalty appeal - including keeping the jurist responsible for the decision out of the loop - arguably could have ranked at the top of the list except for one reason: Keller and the CCA have so long ago disgraced themselves that the egregious behavior that shocked the rest of the world seems to those of us here in Texas nearly routine.
This is the first time the Legislature has met since the infamous "We close at 5" incident, but I'm not necessarily on board with impeachment for a number of reasons, though I admire the chutzpah and recognize the symbolic value of the resolution.

My personal belief is that the best way to handle such matters is at the ballot box, and those who think Judge Keller or her allies on the court shouldn't be in office should be sure Democrats have strong candidates in place for the 2012 elections when she's next on the ballot.

I'm going to put up a reader poll to take input on this topic, so let me know your opinions there and in the comments and I'll do a followup post next week offering a more reflective view.

MORE: Evan Smith at Texas Monthly is nominating moderators for an Impeach Sharon Keller Facebook page, but a commenter notes that two already exist!


Anonymous said...

Let's see if we can get a resolution for the "Bexar County District Court Judges" on their "neglect of duty". Innocent people to jail, civil rights violations, no investigation on their employee with a pending sexual harassment case, under the table raises. We could go on but whu bother?? The District Judges would not care if Fitzgerald set the village a fire.

Judge Keller needs to step down...now. She should save herself the bad press and disgrace.

Mack T. Harrison said...

The bill now has one coauthor: San Antonio Rep. Roland Gutierrez signed onto the bill today, according to the Lege's website.

Mack T. Harrison said...

Sorry, try this link instead.

Anonymous said...

5:00 closed means 5:00 closed..........

Anonymous said...

There are two real problems with this impeachment:

1) Why in the world should a convicted murderer get the benefit of missing a deadline when most other litigants who miss a deadline would be SOL? The murderer here got many many appeals and then couldn't meet a simple deadline? Sorry. Moreover, what right do convicted killers have to demand that state employees, who, after all, have lives stay on beyond closing time. On top of that, there are serious issues of favoritism here. Courts are supposed to treat all litigants equally. By bending the rules for one litigant, the other litigant has a right to complain.

2) The defense lawyers created this problem. They had ample notice of the execution date, and it's not like lethal injection claims were a secret, yet they, for tactical reasons decided to file at the last minute. A court is certainly well within its rights to look at such garbage and say "Tough".

Typical f'in criminal coddling democrats.

Anonymous said...

"Typical f'in criminal coddling democrats."

How many days did Republican Scooter Libby spend in jail for exposing an undercover spy operation that was providing the US with valueable information about Iran's efforts to gain an atomic weapon? Zero. Because Republican George Bush commuted his sentence.

F'in criminal coddling treasonous Republicans!

Anonymous said...

To 3:56:
After reading the six comments, along with yours, I walked out to our hallway where the Texas Monthy article "The Exonerated" is on wall giving the backgrounds of 37 men who spent over 525 years in prison for crimes that they did not commit. Judge Keller, I have no doubt, would have treated these innocent men exactly the same way she treated this convict - the difference is most of these were able to get someone other then this disgrace of a judge to assist them in obtaining justice. And this is from a "Typical f'in criminal coddling democrat" who has been involved in putting more felons into prison than you can ever image - and am well aware of the shortcomings in the system. As said earlier, Judge Keller is a disgrace to both Texas and to this nation's concept of justice. :~(

Anonymous said...

To 5:16:

I don't really give a tinker's damn about how many people you have put in jail, and I don't care about your conclusions about the fairness of the system. That's not the issue, and you know it.

The issue is whether Keller acted improperly, and I don't see how she did, and judging by how you spout irrelevancies about how many innocents have been convicted or generally speaking how fair the justice system is.

Fact: The attorneys waited until the last minute to file their appeal despite the fact that lethal injection claims were well-known. Given that gamesmanship, is it really so bad to demand that a deadline is met. They were the ones that put themselves in a position where a computer failure could cost them a chance at appeal.

Fact: litigants have to be treated fairly. You can't just bend the rules. If courts can bend the rules for a convicted murderer, why can't ordinary citizens point to that in excusing their missing of a deadline.

Since when do judges have to stick around? They have lives. Ever hear of the saying, "A lack of planning on your part doesn't constitute an emergency on my part."? That one sure seems apt here.

These slimeball Democrats are trying to intimidate the judiciary into treating capital defendants with kid gloves. Typical democratic BS. I am of course speaking from a Northern perspective. I am sure Texas Dems have a little more sense, but these clowns are of the Northern Dem variety--criminal coddling liberals.

So Mr. Dem DA, address these issues instead of pointing to how many f'in felons you've put away.

And by the way, what really is a disgrace to the justice system is how courts allow these last-minute BS filings, which typically have NOTHING TO DO WITH INNOCENCE, to generate last-minute stays. These last-minute stays are deeply offensive to the victims' families and make the process a joke.

Anonymous said...

Anon 3:56, there is an excellent reason why death penalty litigants should be treated differently than other litigants: because when other litigants lose, we don't KILL THEM! duh!

Exedge, Scooter Libby was neither charged with nor convicted of exposing any spies. He was convicted for lying to federal agents about whether certain people had made certain statements to him and for obstructing justice. The actual person who exposed Valerie Plame was journalist Robert Novak, who got her name from from Richard Armitage. No one has ever been charged with exposing her, apparently because at the time she was exposed, her activities did not fall within the parameters of the law forbidding exposure.

Hooman Hedayati said...

Sharon Keller also has a website dedicated to her at:

And a parody blog:


Anonymous said...

Anon 3:56, there is an excellent reason why death penalty litigants should be treated differently than other litigants: because when other litigants lose, we don't KILL THEM! duh!

Well, duh, why don't you get the courts to pass rules to this effect? Unless there's a rule, it's your policy preference. And certainly, we don't impeach people because they follow rules. Oh. I am sorry, Dems don't care about rules, just feelings.

Anonymous said...

Please note that the CCA has enacted a rule to prevent such last minute filings as a result of this situation.

Anonymous said...

To follow-up on 3:56 and 6:09, the defense attorneys in the Michael Richard case have a history of filing last minute claims in order to game their way into stay of execution.

Gritsforbreakfast said...

The commenters saying Judge Keller acted properly are ignoring what she did that was actually wrong. This simply wasn't her decision to make. A different judge (Johnson) had been assigned to handle last minute appeals on that case, but Judge Keller took it upon herself to usurp that role and shut down the appeal on her own authority with her "We close at 5" dicta. Judge Johnson has said she would have ruled differently and was "angry" that she should have been the one to make that judgment.

The last minute appeal wasn't the cause of the problem - they had systems in place to deal with that. The problem was that Judge Keller put herself ABOVE those systems and substituted her own judgment for that of the colleague whose call it should have been.

Anonymous said...

There was no legitimate issue as Baze v. Rees has demonstrated.

Gritsforbreakfast said...

7:16, that's obfuscatory BS. Judge Keller usurping the authority of another judge is a "legitimate issue" REGARDLESS of the outcome of Baze, which of course wasn't decided until after the events in question.

What you're conveniently overlooking is that Judge Johnson (no squeamish death penalty abolitionist), whose decision this should have been under court rules, disagreed with Keller and was "angry" at the presiding judge for circumventing her authority. Further demonstrating there was a "legitimate issue," after that, the CCA stayed all pending capital cases that came to them until after Baze was decided.

The critique of Keller on this isn't about whether you're pro- or anti-death penalty. It's about whether activist appellate judges should usurp authority that doesn't belong to them to promote their own, personal political agenda.

Anonymous said...

Grits, thanks so much for letting us know that it was Judge Johnson's case. That fact has notably been left out of the articles I have read on this issue. I had no idea that's what actually occurred.

However, although Keller may be somewhat at fault, she does not deserve all the blame. It's common knowledge that those of us who handle death-penalty appeals and writs can easily copy and paste from prior habeas-corpus applications, motions, and stays in making last-minutes motions for stays of execution. All the attorney needs to do is change the names, the facts, and in this case, cite to Baze. So, writing (and proofreading) the stay should take no longer than 20 minutes. The problem is (and again, the articles I've read have not mentioned the attorney's specific actions in this case)that the facts here seem to suggest that the attorney waited until the last minute to not file the stay, but to actually start writing it. I don't know if that is true, but I would certainly like to know when the attorney started working on the stay. Did he start the night before, the morning of, or at 4:30 in the afternoon? If it was in the afternoon, cetainly the attorney provided ineffective assistance of counsel and should share some of the blame.

Anonymous said...

As a result of the kinda of games this jackass appeals attorney Dow was playing in the Michael Richard case the Texas Court of Criminal Appeals adopted "Miscellaneous Rule 08-101" you can look it up on Google or even search on Grits!

Gritsforbreakfast said...

Another way to look at that, Milkshake, is that the attorneys were playing by the rules the CCA created. Then when the CCA changed them, they played by those. So who's at fault for how the system operates? The lawyers, or those who created the rules?

Anonymous said...

Even under "Miscellaneous Rule 08-101", attorneys are allowed to file a last minute appeal if they can justify the delay and if they attach a detailed explanation to the proposed filing saying why they found it "physically, legally, or factually impossible to file a timely request or motion".

The U.S. Supreme Court did not accept the Baze case until the morning of Richard's scheduled execution, which was later than 48 hours before the execution. But even if Miscellaneous Rule 08-101 had been established already before Sept 25, 2007, the lawyers would have been able to justify their untimely filing on the fact of the Supreme Court's actions.

There were other rules in effect at the CCA on the day that Keller said "we close at 5". She was obligated to follow those rules, but she ignored them. She later sent a copy of the rules in effect on that day to a reporter for the Houston Chronicle. The rules were:

A designated judge will be assigned to be in charge of each scheduled execution. Generally, judges will be assigned in rotating seniority order by the general counsel. Exceptions in order of assignment will be made for prior involvement in the death-row inmate's case as trial judge, prosecutor, or defense counsel, or for recusal. Judges may also trade assignments, with notice to all other judges and general counsel, for other good cause such as anticipated absence from court on the day of execution. Unless the Court has been informed by defense counsel that no pleadings will be filed, or pleadings have been filed and ruled on, general counsel shall be present at the Court on the date of the scheduled execution until the time of execution has passed. The assigned judge shall be present at the Court, or immediately available, on the date of the scheduled execution until the time of execution has passed. Support staff may be requested to remain, also, as needed.

All communications regarding the scheduled execution shall first be referred to the assigned judge. The term “communications” includes pleadings, telephone calls, faxes, emails, and any other means of communication with the Court. The assigned judge may call a special conference or gather votes by telephone, email, fax, or other form of communication.

If the communication includes a request for stay of execution, the assigned judge shall contact, by any reasonable means, the other members of the Court and request a vote on the motion to stay. Non-assigned judges will provide to the assigned judge an adequate means of contact. "Reasonable means" includes calling a special conference and contact by electronic communication.

Anonymous said...

Yes, yes, yes, she should be impeached immediately, and if she had any sense of decency (not) she would step down immediately.

123txpublicdefender123 said...

Sharon Keller broke her own rules, plain and simple. The Supreme Court chose to take Baze that day. It most likely would have been prudent for his attorney to have a stay ready in anticipation of the court's ruling on that cert petition, but that doesn't change the fact that Judge Keller screwed up.

Let's face it. The idea of impeaching Judge Keller has resonance with so many because of way more issues than just this one case. It's things like the Roy Criner case where she refused to reverse the conviction even when the DNA excluded him (this is when she came up the "unindicted co-ejaculator" theory otherwise known as "the victim was a slut" theory). It wasn't until even further DNA tests on the cigarette butt found near her body that he was finally released after spending months or years more in custody.

Anonymous said...

Scott, you are full of it. The Supreme Court's decision to grant cert. in Baze has nothing to do with the ability to file a claim challenging lethal injection. Lethal injection claims were very well known then.

The bottom line is that you can argue all you want. The attorneys were late, and the judge wanted something in writing, not some phone communication asking for a stay.

The lawyers with their gamesmanship cost the client some months of life. Ha. Ha.

Anonymous said...

Dear Anonymous 02:04:00 PM,

Thank you for telling me I am "full of it" in your anonymous post. I guess it is easy to use such language when you are hiding your identity.

The lawyers were trying to submit something in writing. They requested an extra 20 minutes beyond 5 pm to do so. Keller had no authority to intervene.

Under the rules in effect on that day, Keller was obligated to inform the designated judge on duty of the request to submit the appeal. Instead, she said 'We close at 5".

Re-read the rules in effect that day: "All communications regarding the scheduled execution shall first be referred to the assigned judge. The term “communications” includes pleadings, telephone calls, faxes, emails, and any other means of communication with the Court. The assigned judge may call a special conference or gather votes by telephone, email, fax, or other form of communication."

Feisty said...

Thanks for the great post, though I disagree with your stance on impeachment. While it seems somewhat likely that a high profile elected official (such as a Governor, or even a state rep) could be kept in check by the electorate, I don't imagine that many citizens pay close attention to judges or their records. Even worse, Judge Keller could spin her pro-prosecution orientation as merely a "tough on crime" attitude -- certainly a popular attitude in Texas.

For a jude to openly declare herself partial to the prosecution seems, on it's face, to be judicial misconduct. In addition, it seems that Judge Keller's partiality makes her incapable of administering justice -- that is, incapable of doing her job.

Any public figure who has a) engaged in misconduct, and is b) incapable of performing the duties required of him or her, should be removed from office as soon as possible in the interest of justice.

Anonymous said...

"The U.S. Supreme Court did not accept the Baze case until the morning of Richard's scheduled execution, which was later than 48 hours before the execution. But even if Miscellaneous Rule 08-101 had been established already before Sept 25, 2007, the lawyers would have been able to justify their untimely filing on the fact of the Supreme Court's actions."

That's "full of it". They knew of the f'in claim, yet blew it off, and because the Supreme Court decides to grant cert., that fixes a timeliness issue? Ok, gotcha. (And that some idiot judge may swallow such nonsense doesn't make you any less full of it.)

As for your other point, so what? They asked for an extra 20 minutes, and Keller said no. Was Keller supposed to research the law and figure out how to deal with that goofy request? No. Judges aren't there to do attorneys' jobs for them, particularly where, as in this case, the attorneys could have avoided the mess entirely.

And even assuming you're right that she was incorrect for simply telling these guys that the court closed at 5, so what? Judges make mistakes all the time, particularly where, as here, you have a rush job and no supporting argument from counsel.

Remember, counsel created this problem.

Once again, a lack of planning on your part doesn't constitute an emergency on my part.

Ha. Ha. Ha. Ha. Ha. Ha. Texas saved some money executing this guy a little early. What's really too bad is that the Supreme Court violated its own precedent in granting stays to all pending Baze claims. If you're so f'in concerned about the rule of law, why aren't you concerned about that?

Let's execute some more criminals. Save money, reduce carbon footprint.

Anonymous said...

Dow and crowd had filed this same claim with the same supporting documents in other cases before the Richard case. The only new item was the certiorari grant. They could have easily filed it earlier in the afternoon. Of course, that would have made it easier for the State to respond and for the Court to address its merits without having to issue a stay. They overplayed their gamesmanship.

Anonymous said...

These anonymous allegations about the actions of Richard's lawyers are really disappointing. If you have some actual evidence of such "gamesmanship" then come out of your hiding places and use your real names.

Tomorrow's New York Times has an editorial about the Keller case that argues for a legislative inquiry:

"If the facts are as reported, Judge Keller should be removed from the bench. It would show 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. If the facts have been misreported, the impeachment process would allow Judge Keller to set the record straight.

Impeaching a judge is not a step a legislature should take lightly. It is important that judges be insulated from political pressures so they have the independence necessary to administer justice fairly. But judges cannot be allowed to use their extraordinary discretion to deny litigants the fundamentals of due process. That is especially true if the stakes are literally life or death."

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