Examiner's objections due soon in Sharon Keller removal proceedings

Now that Judge David Berchelmann has issued his findings of fact in Court of Criminal Appeals Presiding Judge Sharon Keller's removal proceedings before the Texas Commission on Judicial Conduct, what happens now? What should happen?

Some media outlets, egged on by Judge Keller's attorney, portrayed Judge Berechelmann's findings as essentially putting to rest allegations against Judge Keller. That was premature. The Judge was only empowered to make recommendations to the Commission, which may still decide whether to dismiss the charges, reprimand Judge Keller, or recommend her removal to the Texas Supreme Court.

So what happens next? According to the Commission's removal procedures (pdf), the Commission's examiner (the equivalent of the prosecutor in the case) may file objections to the Special Master's report within 15 days, which by my count would be Thursday, February 4 (though the examiner is also allowed to request an extension).

This will be a critical moment in the drama. If the examiner files objections to the Special Master's findings - and I can think of plenty! - the the SCJC will hold its own hearing. Otherwise:

If no statement of objections to the report of the special master is filed within the time provided, the findings of the special master may be deemed as agreed to, and the Commission may adopt them without a hearing. If a statement of objections is filed, or if the Commission in the absence of such statement proposes to modify or reject the findings of the special master, the Commission shall give the judge and the examiner an opportunity to be heard orally before the Commission, and written notice of the time and place of such hearing shall be sent to the judge at least ten days prior thereto.

The biggest, outstanding objection to the Special Master's report surely is his failure to mention damning evidence presented contradicting Judge Keller's claim that her conversation with the court clerk regarding the Michael Richards case was of an "administrative" nature. She'd claimed contrarily in federal court that they were judicial decisions (in order to claim she deserved "absolute immunity" for what happened). Apparently on this question Judge Keller tells whatever court she's in whatever they need to hear to let her off the hook, even if overall her statements contradict themselves.

That's pretty darn objectionable, in my book, and I hope the examiner's staff is busy preparing a a detailed response.

The examiner should also object to Judge Berchelmann's rhetorical chicanery in arguing that Judge Keller violated no "unwritten rules," distinguishing such from an "oral tradition" that the Special Master acknowledges she failed to follow.

In relation to the specific "charges" against the judge, a recurring theme was that Judge Keller's conduct was "willful or persistent." Certainly that much can't be argued! Even Judge Berchelmann found Judge Keller's impudent claim that she would do nothing differently implausible, saying her statement "cannot be true."

In any event, until we see the examiner's response - which should be filed by Thursday if he doesn't request an extension - we've only seen one of the two important documents that will be presented to the Commission if removal proceedings go forward.

If the examiner issues a response - which seems clearly warranted given the Special Master's overt omission of evidence - the Commission then would set a hearing date at some point, though it could order more evidence to be gathered or even hold a fact finding hearing itself (a "hearing for the taking of additional evidence").

By the end of the week, we'll know a lot more about where this case is going, when it might end, and how.

UPDATE: Chuck Lindell at the Austin Statesman reports that both the examiner and Judge Keller's attorney have been granted an extension until Feb. 17. That lets us know that the examiner will indeed file objections to the findings of fact, and that the Commission on Judicial Conduct will hold a public hearing to air the charges.