Thursday, February 18, 2010

Examiner: Findings from Sharon Keller misconduct case left too much unsaid

The case against Texas Court of Criminal Appeals Presiding Judge Sharon Keller has never been more strongly laid out than in the 14-pages of objections to Judge David Berchelmann's Findings of Fact, which purported to exculpate the state's top criminal court jurist.

I'm not going to repeat points commonly made in MSM coverage, so to get the basics, see:
But anyone really interested in the story should read the latest primary documents themselves. the objections (pdf) to the Special Master's findings (pdf) and Judge Keller's response (pdf).

Before getting to the meat, it's interesting to me how everyone (including most reporters, as well as this writer) has struggled to accurately portray this rarified and seldom-viewed judicial disciplinary process. Hardly anyone is familiar with it, so coverage of these events has tended to analogize it with a criminal trial. So, in translation, "examiners" become "prosecutors," "findings of fact" become a "ruling." But this is an administrative procedure governed by its own rules (pdf). I'll admit, I've found myself struggling to wrap my own head around the intricacies and nuance of the process.

In any event, these new "objections" identify what was to me the most frustrating aspect of Judge Berchelmann's work: He didn't actually issue findings on most of the questions asked of him, instead opining at length on other topics. Nobody asked him whether the Texas Defender Service or Judge Keller was more at fault, but that was the main focus of his writing. What's more, "The Special Master exceeded his role by making recommendations as to sanctions, if any." Said examiners:
The issue here is not TDS's conduct, but Judge Keller's conduct. The Special Master's conclusions concerning causation are irrelevant to the issue of whether Judge Keller by her conduct violated the constitutional, statutory and canon provisions cited by the examiner. The Commission should not be diverted by the Special Master's erroneous attempt to frame this case in terms of who ultimately caused the failure of the USSC to grant a stay.
Instead of focusing on TDS, said examiners, "Judge Keller's conduct on September 25, 2007 should be examined based on what she knew, heard, thought, said, did, decided, and failed to do - and not on things she didn't know."

Most importantly, Berchelmann failed to rule on whether Keller's actions constituted incompetence, and whether they were willful and persistent. Examiners suggested substitute language to the Commission urging them to find affirmatively in the case of both. This was such a gapingly bizarre omission in the findings, one wonders if Judge Berchelmann, like the reporters covering the process, didn't fully understand or appreciate his role.

Examiners bypassed the whole question of whether this was an administrative or judicial decisions, noting that the administrative employees involved were under Keller's direct control and acted based on her orders. So she can't point the finger at underlings like Ed Marty when they reported to her and did what she said, and whether the decision was an administrative or judicial one rightfully becomes irrelevant, by this logic. Judge Keller retained her duties as a member of the court no matter which hat she's wearing. Notably, Judge Berchelmann "failed to make any finding, despite the Examiner's request, as to whether Mr. Acosta and Mr. Marty were 'subject to [Judge Keller's] supervision and control.'"

I also thought the examiner devastated Judge Berchelmann's strange and inexplicable distinction between the court's "oral tradition" and "unwritten rules," though Keller's response clung to that bizarre trope. They proposed replacement language "in light of Judge Keller's testimony that the unwritten protocol on September 25, 2007 was known by her and was verbatim the same as what was reduced to writing in November 2007," when the unwritten rule was formally codified.

The most remarkable thing about Judge Keller's response to the Special Master was its agreement with the examiner that most of Judge Berchelmann's findings were irrelevant to the case at hand. In other words, the only thing the two sides seem to agree on is that Judge Berchelmann did a poor job.

In any event, don't take my word for it. Read the documents themselves and make up your own mind. Given the acknowledged gaps in the record, the State Commission on Judicial Conduct has a tough job ahead of them to come up with findings on all the issues where the Special Master punted. I'm less confident than before, however, that they'll give Judge Keller a free pass. The examiners are sticking to their guns.

Next up: Judge Keller will file a response to the examiners, and I'm hopeful the commission also receives amici briefs from concerned parties. Then, probably several months from now, the SCJC will hold a public hearing before recommending whether or not to sanction Texas' most polarizing, controversial judge.


Crazy Uncle Mitch said...

This just in: John Bradley appointed chairman of the State Commission on Judicial Conduct.

Marie T said...

Mitch: Where did you get your info? Just called the commission office and Rangel is chairing the meeting currently in session according to the receptionist and his term doesn't end until 2011. Is this what the meeting is about?

Gritsforbreakfast said...

Marie, Mitch was cracking a funny. :)

Anonymous said...

Hilarious! You spend years tirelessly advocating for rights of the accused and for scrutiny of prosecutors and now look what you've gone and done here, little ol' Grits: You decided that the accused was guilty of the charges (and, hey, hey, hey other charges, too!) before she was put on trial. After she was acquitted, you still think she's guilty. What's even more amazing is that you're taking the prosecutor's side -- so much so that you pretend that the accused agrees with the prosecutor! -- after the acquittal and you're still pressing for punishment. (And yes, terms like "prosecutor" aren't, strictly speaking, applicable here, but you know what I mean.)

If you think she's guilty based on your own look at the facts and law, fine: You're wrong and people on your own blog have conclusively demonstrated that you're wrong; but, again, fine.

What I wanted to point out is the irony of your current position. It is as shameful as it is convenient.

Gritsforbreakfast said...

9:48, you appear to be one of those folks I described in the post who doesn't understand this process. I say that because of statements like "After she was acquitted ... " etc.. She's not a defendant; she was not indicted; she was not "acquitted." The SCJC decides whether there was misconduct, and they've yet to issue a decision. So you've severely mischaracterized the process.

Also, I never claimed every defendant is innocent, so I feel no compunction to defend positions I've never taken. Any "irony" you perceive clearly stems from some stereotype you carry around in your head, not anything I've written.

As for saying, "You're wrong and people on your own blog have conclusively demonstrated that you're wrong," I assume what you're talking about is the claim that I'd misinterpreted Berchelmann's distinction between "unwritten rules" and an "oral tradition." Someone who sounds a lot like you insisted I was wrong about that at tedious length. However, Keller's attorney explicitly relied on that distinction in her response, which undermines en toto the suggestion that you/they/whoever "conclusively demonstrated" any such thing.

Otherwise, I've followed the case closely and explained in detail in the past why I think - based on the evidence - that she's guilty of the as-yet undecided misconduct allegations waged by the SCJC against her. You're entitled to hold a different view, even if you're not confident enough in your conclusions to attach your name to them.

Marie T said...

Mitch: you got me! I take things so literally. Good Joke on me. LOL

Marie T said...

“What are men to think when they look on the wise magistrates and the solemn priests of justice, who with tranquil indifference have a criminal dragged with slow ceremony to his death; or when they see a judge, with unfeeling coldness and perhaps self-satisfaction in his own power, walk past a poor creature who writhes in his last anguish and awaits the fatal blow, on his way to enjoy the comforts and pleasures of life.” (59)
Cesare Beccaria,Born Milan, 1738,Wrote Of Crimes and Punishment at 24

I think he spoke of judges like Keller. Sad

Anonymous said...

9:48 here, Grits. Yes, I'm one of the commenters who tried to explain to you why you were wrong. We gave you a bunch of reasons, any one of which would be sufficient to demonstrate that your theory about the "oral tradition" was absurd. However, you were either incapable or unwilling to acknowledge that you were wrong. At the time, I figured you were unwilling: I thought that you'd stuck your neck out by positing the theory and that you had too much pride to admit that you'd offered something ridiculous. Like the other people who'd tried to help you, I eventually gave up and figured that you were entitled to your pride.

Now, though, I'm starting to think that you weren't unwilling to acknowledge that you wrong; you were instead incapable of understanding why you wrong.

What's leading me to that conclusion are things like your claim that "Keller's attorney explicitly relied on that distinction in her response." Seriously? I mean, you read the response? And you really think he was relying on the distinction between an "oral tradition" and "rules" and "laws"?

When he uses the phrase on page 5, he says that says that "rules" and "laws" are "including" of the "oral tradition". Do you understand what that means for your argument? As I suggested above, I'm starting to doubt it. Maybe this will help, though:

When he uses the phrase on page 6, he refers to laws and canons but not court rules, which suggests -- of course -- that the "oral tradition" was a set of rules. Still having trouble? Okay, last chance to figure it out:

On page 7, he does the same thing, referring to the "oral tradition" instead of "rules" in a littany of binding court procedures.

Like I've said before, you seem like a good guy and I think it's great that you work so hard on this blog. I sincerely appreciate what you do.

But you're really struggling with this and you ought to be able to acknowledge when you screw something up.

You screwed this up: Judge Berchelmann didn't use the phrase "oral tradition" to obfuscate. He found that she violated no laws and no rules. And you know what? He was right. And you still want to punish her. okey doke. You're obviously entitled to think that. And you're entitled to allow that thought to make you post really, really, silly stuff. But when smart people demonstrate that it's silly, it'd be good for all of us -- and especially you -- to acknowledge it and move on to something less silly.

doran said...


You've obviously got something against Grits than just this dispute; or maybe you are so enthralled by Judge Keller than you feel you have to attack those who disagree with you. So, why don't you address the 14 pages of objections to Judge Berchelmann's Findings? Try doing it without the vitriol, as that kind of language makes it very difficult to take you seriously.

TxBluesMan said...

Anon 9:48,

According to Grits and Doran, the rule of law and technicalities are important if you are a poor mistreated criminal, who society has apparently failed.

Those two items are not important when it comes to the police, prosecutors, or judges. They should just be thrown to the wolves, with no protection, no rights, and no presumption of innocence.

doran said...

Kinda like your attitude toward the FLDS, tx.

Anonymous said...

Yawn...Next topic, Grits. Your "Keller obsession" is getting really old. I'm thinking your hopes of scoring a date with the kind judge are pretty much a lost cause at this point.

Angee said...

Anyone wanting the news without the commentary could opt to getting it from the papers. Some of us enjoy a chance to discuss issues without smart ass retards trying and failing us with brilliance. This is a place for sharing opinions and everyone has one. My opinion is that there are a couple that have a problem with any information that comes from here. Your unending smugness and and attack tactics are the stuff of back yard bullies. How is it that people with such a wealth of knowledge have the time or inclination to bother with this forum? Surely you could be out changing the world more to your lliking.

Gritsforbreakfast said...

10:50, do you feel better now? We simply disagree, but if you keep repeating your tired spiel, perhaps one day you'll convince yourself. The examiner clearly articulated exactly why Keller violated these oral traditions, unwritten rules, or whatever you'd like to call them.

7:39, Bluesy, if you've got so many complaints, go elsewhere. Nobody forced you to come here or read anything I write if it's all so biased and false. And Bluesy, as the Official King of Red Herrings, you know how much in particular I value your utterly unbiased opinion. Anonymous cheap shots do not persuasive arguments make, but I know you'll keep trying. If the only tool you have is a hammer ...

Finally, thanks, Angee - I think you hit the nail on the head.

Anonymous said...

He gets in a lather every time he has a chance to go after a public official. Doesn't seem to be bothered by the misconduct of his pets.

Anonymous said...

Nice job by Seana Willing and the Graves, D folks on their brief--it beautifully points out the hatchet job by the supposed "fact finder."

i do find it curious why the TX ACLU's VP of Development is advocating to keep Sharon Keller on the bench. It appears to be in connection with his day job at the law firm, but good luck getting progressives to cough up funds when you are on that side of "justice."

TDCJ EX said...

Cyber bullies and trolls post their insults and other abuse to silence a debate . It is a tactic used when someone is losing a debate or lacks the capability to make a reasoned one . It works people give up in the face of relentless verbal abuse .

On this blog the death penalty and Sharon Keller bring out the trolls and cyber bullies. Some are well known . Once their identities are known . They slink to their own racist & hate website , rant that people disagree with them and ban them when they violate other site or forum rules . They think absolutely right and can do what they want with out facing any consequences.

The best policy is ignore them , once in a while a response is the right thing to do. Thinking if they abuse people , they will change their minds and agree with the cyberbully or troll is not rational . It is delusional or doing it for entertainment .

One suggestion ,if this blog bothers you that much don't read or post .You can put your hate fueled rant elsewhere.

Topics IE closing down TDCJ units do not get much attention though the cost of having 155,500 humans incarcerated , more on parole or probation is extremely expensive . That topic gets few replies even though it directly effects your lives.

Once in a while a topic here has lead to other media with larger audience even national media picking up on a Grits thread !

Back to Sharon Keller . She got herself into this due to her behavior as the Chief Justice of the TX CCA . Her position makes her fair game. She is a state politician who has national recognition. Media of all sorts can and will discus her .

Reading her decisions is frustrating . Following her contorted line of reasoning upholding a conviction that is unconstitutional or the appellant is obviously innocent make you lose faith in the justice system . It is the states job to meet the burden of beyond a reasonable doubt with out shredding the Constitution . Keller and her ilk's decisions take away everyone's constitutional protections. Keller forgets the Constitution was to make convictions difficult to obtain not the other way around. She is a good reason for term limits and not electing judges and prosecutors.

Keller in her own words.

Keller on a Frontline PBS interview.

How can Roy Criner establish his innocence?

I don't know. . .”

“Has justice been served in this case?

Justice is served by allowing the criminal justice system to function by the rules that are in place to determine the truth. That is the function of all our rules and standards. I abide by those standards, because they are the surest way to determine the truth. . . As a judge, I look at what the law requires, which is that he unquestionably establish that he is actually innocent. That was my focus in reviewing this case. It's the jury's job to speculate about whether a person is actually innocent or actually guilty. I review the propriety of the conviction by whatever legal standards are in place.

So it was a proper conviction even if it leaves open the question of his actual innocence?

[Roy Criner] did not meet his burden to prove that he is actually innocent of this offense. At best, he established that he might be innocent. We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important. When witnesses testify, and when jurors return a verdict, they need to know that they can't come back later and change their minds. . . DNA evidence in this case did not prove that he didn't commit the offense. That's the standard we use, and he didn't prove it. At best, he made some people think that he might be innocent. But he didn't prove it. “

Keller is frighteningly wrong .

Anonymous said...

Bluesman and others that are missing a important point Grits is making. If this were civil litigation courts would be looking at a course of business and how who was in charge had treated that course of business in the past. Here, something far more severe, is the course of business of executing someone. Regardless of what was a written protocol or what became the course of business or "unwritten rules" and an "oral tradition." Call it what you like, the attorneys who were filing these last minute stay request filing had been implicitly authorized to do so for some time to the point it could be considered a course of business. Keller didn't change that course of business or "unwritten rules" and an "oral tradition" IN WRITING until after her ass was on the hot seat. Part of what the criticism of the findings is this was not addressed. Blues fails to address what Keller did and actually didn't do based upon what she had authorized to happen for a long time and then decides to change that at 5 pm and say too late we're killing someone WITHOUT TAKING THE TIME TO PUBLICLY SAY THIS IS THE LAST LATE FILING AND ADOPT RULES LIKE SHE DID AFTER THIS EXECUTION AND DEBACLE. In other words, you can't hide behind what you have been allowing that is different than written protocol and then change the course of business or "unwritten rules" and an "oral tradition" because of a frustrated whim and then execute someone. I make the analogy of a civil case to say if its good enough of a standard to use for civil matters it should be good enough of a consideration how we look at the conduct of a Judge responsible for executions. There are plenty of analogies to civil cases that are clear if we had only one highest court, would make any Judge in that highest court look like a fool if they wrote some of opinions in the CCA and compared them to similar procedural, evidence, or others considerations of cases coming out of the Texas Supreme Court . This knee jerk narrow minded decision (Keller's close the door and execute decision) is just another example like many Keller decisions, including Criner, where Keller's credibility as far as doing a thorough analysis of what to do, should be thoroughly reviewed. There is no double standard here Blues. Simply the need for a thorough analysis just like any prosecutor would do in a trial to attempt to convict someone.

Anonymous said...

TDCJ EX said...

Cyber bullies and trolls post their insults and other abuse to silence a debate. It is a tactic used when someone is losing a debate or lacks the capability to make a reasoned one. It works people give up in the face of relentless verbal abuse.
Cyber bullies and trolls are anyone who disagrees with Andres. Right Andres?

Anonymous said...

"Keller is frighteningly wrong."

No, she is following the rules of appellate procedure and case law and is correct.

Anonymous said...

"He gets in a lather every time he has a chance to go after a public official. Doesn't seem to be bothered by the misconduct of his pets."

Yeah, he has sympathy for those who have broken into your house and contempt for public officials.

Grandmom said...

Grits was there at the hearing. I was there. Was Anonymous 2/18, 9:48 there? I don't think so. We know a cover-up when we see/hear it. Anon spews a ton of insults and verbiage to obscure the fact that he knows nothing and thinks a lot about it. Keller has never met a conviction she doesn't like, regardless of prosecutorial misconduct, coerced confessions, witness lies and forensics mistakes. CCA overturned convictions dropped from 36% to 3% during the last 20 years. That's when the court turned Republican!

TDCJ EX said...

Keller did not follow any case law there is not any thing anywhere about finality go find it . If they are referring to the Criner case. It is one of Kellers convoluted rationalizations Criner met the standard . She made up some bizarre idea he might have worn a condom . If it then would be up to the state to prove it . Criner had proven the DNA tests Excluded him . The state on it's appeal is obligated to prove he did not . Keller made up a excuse to uphold a false conviction . That is painfully obvious . Even GW Bush agreed Criner was innocent . G W Bush is hardly a “bleeding heart liberal.” I believe Grits could fully explain that case .

When did convicting innocent people become justice? If a innocent person is incarcerated then the guilty party has not been held accountable and is free to go about doing what they wish . That does not make any one safe . It isn't Keller's job to provide “closure” finality it is no where in the Constitution or case law . If people want justice and some sense of finality then hold those who do the investigating prosecuting and judging accountable for their mistakes , d misconduct and or crimes to secure a conviction.

Then the state be comes the criminal that is what grits is talking about in this and many other issues. . It seems some people are more concerned with protecting a broken corrupt system than justice

Grandmon , True enough a few annons spew a lot of insults and gibberish to hide the fact they do not know what they are talking about . The frightening and frustrating thing is many people are showing a total lack of knowledge on many issues. .I should not be surprised when people are more interested in Tiger Woods sex life than very real problems we face as a nation.

The type of Government the “tough on crime”types advocate for is strikingly similar to the governments of Iran most closely , a totalitarian theocracy . Maybe they can move so they can feel safe from crime that according to them is out of control and they must live in fear 24 /7 . According to Iran's state run media Iran has very little crime except those protesting for the freedoms the tough on crime take away here.

Anonymous said...

09 - This is not a place for a book. Cap it.

Anonymous said...

Y'all have a lot to say about trolls, vitriol, and justice but nothing to say about the specific arguments that Grits and his critics have made.

I wouldn't even try to convince liberals like Grits that Sharon Keller is a good judge and that the CCA is a good court. Those questions are completely subjective; they are entirely matters of opinion.

What isn't a matter of opinion is that Grits was and is wrong about whether Judge Berchelmann in his findings -- and Judge Keller in her response to the findings -- made a distinction between an "oral tradition" and "rules" and "laws".

Here's why I'm not going to let up on this issue and why I won't even start to try to argue about whether Judge Keller is a good judge:

Texas voters have already answered the subjective questions. If an administrative agency is going to ignore the voters' answer, reverse their choice, and refashion a constitutionanl office according to its taste rather than the outcome of an election, it MUST answer the objective questions correctly.

And so I -- and apparently some others on here -- keep pounding away in specific, detailed, and rigorous arguments about facts and law.

Whatever y'all think of Judge Keller and the court is, here, irrelevant. What matters is only whether she broke rules and laws. If -- as we've shown -- she didn't, she must not be removed from her constitutional office and Texas voters' decision must not be vititated.

Consider the alternative. Sooner or later, Texas is going to have a lot of liberal judges again and the judicial conduct commission might charge one of them with something he simply didn't do. You'll look back in horror on how you treated the charges against Judge Keller when, some day in the not-too-distant future, millions of Texans' ballots -- as well as facts and law -- are ignored and a duly elected and qualified liberal judge is removed from office so that just a few members of an agency can appease part of the press, some of the bar, and a few people in far away places whose approval the agency's members covet.

Anonymous said...

TDCJ EX = Andres = Idiot! We found you!

TDCJEX said...

Who the hell is Andres ? Someone is is seriously paranoid. My name is not Andres not even close .

This is getting very bizarre you anons really have gone of on some strange tangent and way off topic

I have to say this to be one of the strangest moments on the internet in awhile . A bit creepy too . Who ever Andres is it is not me .

At any rate you seem to be decompensating into a very unstable paranoid delusional state rapidly for what ever reason . That is cause for concern for a lot of peoples safety and well being .

Who ever this annon is they seem to have a unhealthy if not dangerous obsession with Sharon Keller. When ever she is discussed the annon becomes greatly disturbed and irrational .

Now this whole Andres thing not only way OT but is very strange and unnerving .

OK back to reality please

Anonymous said...

OK Andres