Friday, July 09, 2010

Judges as Grantmakers: Sharon Keller's secret soft side on indigent defense

Brandi Grissom at The Texas Tribune describes an underreported aspect of Sharon Keller's role as Presiding Judge of Texas Court of Criminal Appeals: Chair of the Texas Task Force on Indigent Defense, which has spearheaded over the last decade a remarkable expansion of public-defender offices around the state. Reports Grissom:
Lawmakers created the task force in 2001 when Texas was a national laughingstock for its dismal provision of legal representation for poor criminal defendants. Now, counties must meet minimum standards for legal representation, thousands more poor defendants get qualified attorneys, and 91 counties — many in rural areas with few public resources — are served in some capacity by a public defender. Both critics and supporters of the Texas criminal justice system agree the task force has overseen a sea change in defense representation for people who can't otherwise afford it. And despite the roiling controversy over her judicial conduct, most seem to agree that Keller’s leadership has been instrumental. “We started at ground zero,” said state Rep. Pete Gallego, D-Alpine, a member of the task force and chairman of the House Criminal Jurisprudence Committee. “We were one of the worst states around, and as chairman of the task force, she’s really been in a real sense responsible for building the whole thing.”

Among the major initiatives that have improved representation for the poor is increased funding for counties to provide defense services. Before 2001, the state gave counties no money to provide indigent defense. Lawyers who did the work often received a pittance, making it difficult for courts to find qualified lawyers to take the cases. Last year, the task force awarded counties statewide $31 million to run public defender offices and provide indigent defense. Andrea Marsh, executive director of the Texas Fair Defense Project, said Keller has worked not only to give counties funds they need for indigent defense, but also to give them incentives for new and innovative programs. Task force grants have helped launch programs like Travis County’s Mental Health Public Defender Office. “She has been supportive of giving more of that money to program improvements and not just giving that money for the same old thing that isn’t working,” Marsh said.

Having judges like Keller on the indigent defense task force isn’t ideal, Marsh said. Oversight of defense lawyers, she said, should be independent of the judiciary in the same way it is for prosecutors. Despite general concerns about potential conflicts of interest, Marsh said Keller has been an effective leader of the task force, knowing that qualified lawyers at the beginning trial stages mean fewer cases for appellate judges to wade through down the line. “The court system doesn’t work if defendants don’t have competent representation,” Marsh said. “It creates all sorts of problems that a court like hers has to deal with later.”
It's absolutely true that the Task Force on Indidgent Defense under Judge Keller's leadership has made  remarkable strides, and also that she doesn't get as much credit for that as she might and perhaps even should. IMO that's in part because so much credit is universally given to the lead staffer on the task force, Jim Bethke, whose likable, mild-mannered, mostly behind-the-scenes approach has succeeded in weaving together cooperation from an impressive and influential array of unlikely allies. Bethke's leadership has allowed the defense bar to some extent to trust the TFID process even if they don't trust Keller, which arguably has been the secret behind the organization's success. I've always admired Bethke's ability to earn trust across the spectrum. (Clearly Grits has not accomplished that feat, though perhaps there's a reason Mr. Bethke, a fellow Tylerite, offers his opinions far less freely!)

But as a practical matter, Bethke works for Judge Keller - he was sitting behind her at the recent removal hearing along with other supporters like Judge Barbara Hervey - and there's no doubt he couldn't do what he does if she did not endorse it. What's more, when I've heard her speak on the subject (rarely and briefly - she typically lets Jim operate as front man), she's seemed genuinely informed, engaged and supportive about improving the quality of indigent defense. I've had this conversation with quite a few folks over the years: It's a strange contradiction, with the only common denominator with her judicial stances possibly being her generally low estimation of the defense bar.

Judges as Grantmakers?
Grissom's story raises a larger issue I've intended for a while to focus on when I have more time to research it: The Court of Criminal Appeals' secretive, little discussed role as a major criminal justice grantmaker. According to Texas Courts Online:
Texas is one of four states in which the administrative office of the courts has no responsibility for judicial education. In Texas, judicial education is administered by the Court of Criminal Appeals, pursuant to Chapter 56, Texas Government Code, and Appropriations Act riders applicable to the Court of Criminal Appeals. Chapter 22, Texas Government Code mandates certain topics of judicial education: family violence, sexual assault, child abuse, diversions from prison, and guardianship.
The CCA most prominently doles out tens of millions each biennium for continuing education, but as Grissom notes, Keller also basically controls (or at least has substantial input on) grants from the Task Force on Indigent Defense, which among many other worthy causes gives grants (if I remember correctly, $200K annually apiece) to innocence clinics at Texas' four public law schools. However, a little-discussed 2009 report from the state auditor lamented that the CCA "lacks formal, written policies and procedures for awarding and administering grants."

There's also a seldom discussed political aspect to this grantmaking function that's always left me a little uncomfortable. For example, here's the list of current grantees for the CCA's Judicial and Court Personnel Training Fund:
  • Texas Association of Counties
  • Texas Center for the Judiciary
  • Texas Council on Family Violence
  • Texas Criminal Defense Lawyers Association
  • Texas District and County Attorneys Association
  • Texas District Court Alliance
  • Texas Justice Court Training Center
  • Texas Municipal Courts Education Center
  • The Center for American and International Law
Of those, the Texas Association of Counties, the Texas District and County Attorneys Association, and the Texas Criminal Defense Lawyers Association are significant political players at the capitol on criminal justice topics, so there's an appearance the CCA judges are giving fat grants to powerful legislative insiders. It can be intellectually justified because the grants go mostly for continuing legal education and fulfillment of those professional organization's basic roles, but the perception continues to hover there, persistent, inevitable. It's made me wonder in the past whether it's wise for the CCA to double as the state's second biggest source of criminal-justice grant funds after the Governor's Criminal Justice Division, or whether that function should be shifted to the Office of Court Administration as it has been in all but four states?

Sharon Keller does indeed deserve credit for grantmaking on her watch, but that has nothing to do with her judging, and there's an argument to be made that such grantmaking functions shouldn't either.


Anonymous said... she does some nice things. Whoopiddy freaking do. I bet even Hitler was nice to his dog. Doesn't change the fact that she broke the laws she's supposed to uphold, not once but several times.

Charles Kuffner said...

However, a little-discussed 2009 report from the state auditor lamented that the CCA "lacks formal, written policies and procedures for awarding and administering grants."

And of course, it was a lack of formal, written policies and procedures regarding last minute death penalty appeals that got Keller into official trouble in the first place. Funny how these things work, isn't it?

Anonymous said...

Keller is a "strict constructionist." She doesn't interpret the law in an expansive fashion or attempt to usurp the will of the people as expressed through the legislature. She also seems to give great deference to the verdicts of juries and doesn't lightly overturn them. I'm not sure why that seems to upset so many people on this blog, but maybe it's because liberals have become conditioned in this country that judges should actively insert their own personal liberal views into matters of public importance regardless of what the public has voted for or expects. At any rate, none of these means that Keller doesn't believe in fair play and the rule of law. Her accomplishments with the Task Force on Indigent Defense doesn't really come as any surprise to those who have watched how she conducts herself for some time now.

Anonymous said...

A human being cannot be reduced to the worst thing s/he has ever done - even Sharon Keller. But that doesn't mean she should not be removed from office for the worst thing she has ever done (that we know of).

Anonymous said...

Calling Keller a "strict constructionist" is absolutely laughable. She decides first who she wants to win a case then concocts an argument to support her favored party. And a "strict constructionist" wouldn't be as quick to overlook flagrant violations of law as "harmless error." What a joke!

Anonymous said...

She doesn't usurp the will of the people as expressed through the legislature? Are you kidding me? In Montoya v. State, she spearheaded the charge to rewrite the law that the legislature had just rewritten. Decided that they didn't really mean to change the law. She respects nothing.

TDCJEX said...

Grits the best question is should the CCA be the source or branch of government that provides financial aid for criminal defense . I would think that there is a inherent conflict of interest . And those receiving grants will avoid offending the grant maker . Such as raising issues about the fairness of the CCA and it 's blatant pro prosecution bias where they have upheld the flimsiest of convictions on the Harmless Error rule .Those become worse when every pone of those judges is at the end of the day a politician and will do politically popular things instead of what is right . That was the reason behind appointing a supreme court in the US Constitution . Though I think it is time to limit how long a person can be in many government positions . I know of people who simply gave up challenging their conviction because thy knew the CCA would find some way to up hold the conviction despite the facts .I know a few sick individuals will take perverse pleasure in this .

Is there away OT find out who got the grants I and what issues they raised in the CCA as well as who thy took on as clients ? That will tell you a lot . I don't like the idea otter state have a independent public defenders office that is separate from law enforcement and many of them do a very good job despite occasionally whine about them not doing a good job because they got convicted .

R Shackelford . I fully agree Keller is a evil person and I hope she goes to TDCJ

Gritsforbreakfast said...

Sharon Keller is not evil.

She hasn't always exhibited a judicial temperament and IMO she lets her personal political agenda sway her judging, but the situation is bad enough without resorting to hyperbole.

As to the grants, the grant requests from each group should be available under the Public Information Act (assuming it doesn't fall under one of the exceptions carved out for the judiciary, which would be unfortunate). For starters, though, read the full state auditor's report for much more detail than I've given here.

Anonymous said...

I call bullshit.

Anonymous said...

TDCJ EX, I'm not saying she's evil. Just callous, criminal, and unsuited to being a judge. If we're talking evil, my vote would go to Bradley or Kevin Brackett in SC. Brackett is even worse than Bradley, if you can believe it.

TDCJEX said...

Scott I will stand by my statement that Keller is evil I look at as some one who was incarcerated in TDCJ and also in this light . Any one who willing use their power to ensure that a possibly innocent person is executed is a evil being . I cannot imagine the horror of those being on death row knowing you are innocent and one person in particular will do anything in their power to ensure you are executed . Oi cannot imge the horror they feel in the last days and hours of their life and then being f strapped to a gurney forcibly by cowardly men who refuse to allow their names be public and That humans life snuffed ouas if they are just number on a docket To do this because of a political agenda and to further their career that is the definition of evil .

We aretalkng about the power to decide who lives and who dies who will be incarcerated and who wil not . Abusing succh power is evil to do so willingly and with the knowledge that a person innocent person might well lose thier life or spend years in prison is evil .

I think it is righto call her for what she is it is not hyperbole to say she is evil she might at onetime not been a fair person but that was a longtime ago . Keller has become everything she claims to be against . Any one who will wiling an knowing let a possibly innocent human be executed is evil . Any one who refuses to use their power to look into the possibility of innocence or misconduct in any case is evil .

I have been in TDCJ on Polunsky . I cannot imagine what a totally innocent person feels . Prison is not at all what any one who has not been there like . I cannot describe to you what I lived . The loneliness, the stripping away any of your humanity and any dignity you might have had it is .You become a number in white it is living in total despair the fear of losing ones sanity is what prison is .it is being subjected or exposed to all manner of depravity mostly on the part of bosses and rank who are some of the most brutal and sadistic people I have ever encountered they are far worse than those they guard . I saw men snap and lose their minds I saw guards subject humans to depravity that would disturb any one and lived this for many years. What ever any one thinks of prison it is not what you think or see on “lock up type shows Prison in it self is a evil place .

I suggest asking those who were innocent and were in TDCJ what it is like to live that knowing you are innocent an because of Keller s influence you cannot show it . Her words in her interview regarding Roy Criner are chilling . She claim she does not know how a person can show their innocence and believes procedure and finality take precedence over fact and humanity . That is evil to say well you have to stay in prison because Sharon Keller demands finality the jury does to want to have hurt feelings because they got it wrong and the victims need closure is evil . That is human sacrifice . Keller has said that humans are expandable that is evil .

RS I agree that others are even worse in SC )justice system is both corrupt and evil they will willing and knowingly send innocent people to prison . They will knowingly and deliberately suborn perjury to secure a convection . That is evil

If a person spend time as a prisoner in TDCJ you will see why I call Sharon Keller evil .

Anonymous said...

Well, when you put it that way TDCJ EX, I guess that DOES sound pretty evil. Ok, I concede that she's evil. Let's hope she gets the chance to see first hand what she has wrought, namely by being cast down into a hell of her own making. In other words, I hope she goes to prison and has a really horrible time.