Keller appeal marked by byzantine legal debates

This afternoon I attended Sharon Keller's appellate hearing mentioned earlier today on Grits, and I must say I don't envy the three justices charged with deciding the obscure, narrow legal issues before them. The legal arguments were so byzantine nobody seemed to completely grok how all the different rules and statutes worked together, and it seemed to me the simplest solution might be for the court to remand the case back to the State Commission on Judicial Conduct for the equivalent of re-sentencing.

The hearing was lightly attended - just 21 people in the audience that I counted, including myself and three reporters (at least who I could identify). Quite a few of the others in attendance were employees of the attorneys working the case or the SCJC, plus a handful of anti-death penalty activists who'd been protesting with placards outside before the hearing began.

The justices shut down fairly quickly Keller's attorney Chip Babcock's efforts to reassess the merits of the case (he accused attorney David Dow of "lying" several times and declared at one point, "This is all a media creation based on a series of lies"). Instead the discussion mostly focused on whether the State Commission on Judicial Conduct improperly imposed an excessively lenient sentence on Judge Keller - giving her a "public warning" instead of subjecting her to "censure," which would have forbade her from sitting as a visiting judge after leaving office.

At the hearing before the Commission on Judicial Conduct earlier this year, it was Keller's attorney whose arguments suffered from "bad facts." Today it was the SCJC's attorney Mike McKetta who was more on the defensive, trying to explain why the Commission failed to follow its own written procedures distributed to judges about how such cases are handled and why SCJC Executive Director Seanna Willing had made public statements that seemed to support Keller's arguments about the proper range of punishments. See these prior Grits posts for more on that controversy:

• Texas Supreme Court to review 'lawless' leniency for Keller by Judicial Conduct Commission
• Special treatment for Keller may create 'bad law' around judicial misconduct
• More backstory on Keller public warning
• Three options in Keller case for Judicial Conduct Commission

The debate was confusing and confused even for the principals and the three jurists, mainly because the portions of the Government Code and the Supreme Court rules governing the process clearly never countenanced this situation. In some instances they plainly contradicted one another or used the same terms in different ways, particularly the word "sanction." (I stopped in at the Senate Criminal Justice Committee offices after the hearing to suggest they review the record from the proceedings and consider updating the Government Code to account for the inconsistencies identified this afternoon.)

McKetta made a somewhat persuasive argument that the broader array of punishment choices were justified. The portion of the Constitution Keller cited, he pointed out, listed censure or a recommendation for removal as the only possible outcomes, though everyone acknowledged that "dismissal" was also an option, which in fact was the outcome the Judge was pushing for. McKetta cited other examples where the Texas Constitution used the word "or" in that way - not to say definitively either-or but in a more de-limited fashion. But in this writer's non-lawyerly view, Keller's arguments were more persuasive that the leniency given her by the Commission in light of the damning findings of fact was probably improper.

Which brings us to the question: What now? Keller's attorney argued that the justices should simply dismiss all charges and that the Commission's ruling was "void" because they'd overstepped their authority. But two of the three justices expressed reservations on that score. Justice Elsa Alcala pointedly asked Babcock what they should do if they found the Commission's decision was "erroneous" but not "void." He insisted only the latter result was acceptable, and I found myself wishing they'd asked the same question of Mr. McKetta. I asked him myself after the hearing, but he refused to comment, adding, "You're asking the right question, though."

It's hard to guess the next move. The judges could outright dismiss the charges as "void," affirm the Commission's strange, "lawless" leniency and move forward with the appeal, or potentially (an outcome that wasn't discussed but which wouldn't surprise me) kick the case back down to the Commission with an order to pick a punishment from the three, constitutionally approved options.

To their credit, it didn't appear from the questioning that the justices involved came to the table with any preconceived notions about the outcome, which one certainly couldn't say for Special Master David Berchelmann who presided over the original fact finding in Keller's case. But these would be hard questions for anyone to answer. As I said, I don't envy them their task and I certainly didn't leave the room feeling as though there was an obviously "correct" decision I could easily identify. Quien sabe? We'll know soon enough, I suppose.


UPDATE: The Austin Statesman reports the three-judge panel will issue its decision by Oct. 8.