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:

• Effort to remove judge resumes, Austin Statesman
• Discipline sought against Keller, SA Express News
• Prosecutors: Death row judge deserves punishment, AP
• Prosecutors urge commissioners to reprimand Judge Sharon Keller, Fort Worth Star-Telegram
• Both sides take issue with Special Master's findings in Keller case, Texas Lawyer
  

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.