Texas' top judges hold summit to address trust in criminal justice system

Thanks to Grits contributing writer Eva Ruth Moravec for attending this event in Dallas. Grits had wanted to go but ended up at the dentist instead, so I appreciate her writing it up.

A daylong summit on race in the justice system for Texas judges recently held in Dallas was initially supposed to be 20-minute shorts aired nationally on the Public Broadcasting Service.

"But we're different here in Texas," said Nathan Hecht, chief justice of the Supreme Court of Texas at the December summit in Dallas. "We decided instead just to invite all the judges."

Personal invitations from Hecht and Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, were enough to summon 50 Texas judges out of their courtrooms on a weekday and into a heavily secured auditorium at Paul Quinn College. Total attendance at the summit was about 200.

The need for the curriculum - whether in televised shorts or taught live - arose in the wake of the fatal shooting of Michael Brown and riots that followed in Ferguson, Missouri, in 2014, Hecht said. Over the past 12 months, he said, the Conference of Chief Justices has been working on how to keep the community from distrusting courts.

"We need to be proactive about trust issues and to enhance trust," Hecht said. "We're concerned about how courts are affected by mistrust."

He opened the summit with a montage of news footage from high-profile shootings by and of police, then asked attendees to reflect quietly. Otherwise, the day was completely packed by the summit's planners, including state supreme court Justice Eva Guzman - the wife of a Houston police sergeant and daughter of immigrants - with interesting speakers.

"A single day is certainly not enough time to restore complete trust in the justice system," Guzman said, adding she hoped attendees realize how their life experiences affect how they handle things.

Keynote speaker Houston Police Chief Art Acevedo implored attendees to be courageous, bold and to "put away broad brushes. Don't be afraid to lose your job."

The theme of courage united several of the day's diverse speakers and panel participants, like Emily Thompson, a Dallas Area Rapid Transit officer who is back to work after her husband was killed in an ambush attack along with four others officers last summer.

Arielle Clarkson, a Paul Quinn student, said the strangulation of her brother by a police officer 10 years ago "shattered my understanding of what it meant to be protected by the police." She hopes to become a lawyer to address injustices.

 At St. Paul United Methodist Church in Dallas, a program called Together We Learn tries to bring the community and law enforcement together for things like basketball games so their interactions aren't always negative.

"The harsh reality is, people of color, when we see the police, we think something's wrong," Senior Pastor Richie Butler said. "We have to change perceptions and see people for who they really are - humans."

Cornell Law School professor Jeffrey Rachlinski said even the well-intended have biases and lectured on human beings' decision-making processes. He advised judges to start recording demographics and outcomes of their cases so they are more aware of disparities.

(Rachlinski's suggestion was one of two I heard throughout the day on how to improve trust in the courts; the other was an idea from Hecht for trial judges to explain their rulings.)

To demonstrate how underlying biases may affect juvenile justice, former state judge and professor F. Scott McCown moderated a panel of experts who told the audience what would happen to a hypothetical foster child who got in trouble at a new school. Sadly, most panelists concluded the youngster would eventually end up in jail.

"We have to get past race," said criminal defense attorney Carmen Roe of Houston, a panelist whose pretend-task it was to defend the troubled foster child.

"How do we make changes? One person at a time," said Dr. Griselda Villalobos, a licensed clinical social worker in El Paso who regularly works with children in and out of the system.

Although most of the day's dialogue pointed out problems that lacked solutions, attendees seemed pleased they were there. As the summit closed with remarks from Oak Cliff Bible Fellowship's Senior Pastor Tony Evans, sunlight streamed through the oatmeal-colored floor-to-ceiling drapes that had separated the day's events from the campus and surrounding deprived neighborhood.

"We are looking at a fraying society," said Evans, analogizing that high-profile shootings are like cracks in the walls of a home with a failing foundation. "If we get the one thing right, it can solve many things."

Voters should approve "Sharon Keller Disciplinary Case Memorial Amendment"

The Dallas Morning News, with tongue only partially in cheek, declared that Proposition 9 on the November ballot should be called the “Texas Court of Criminal Appeals Presiding Judge Sharon Keller Disciplinary Case Memorial Amendment.” They explained, "The State Commission on Judicial Conduct reprimanded Keller with a public warning in 2010 for her actions in closing the court before a death-row inmate could file a last-minute reprieve. Keller later got a special court to dismiss that reprimand, since the Texas Constitution does not specifically say a disciplinary case could lead to a warning, although the state’s legal code does."

See Grits' analysis of the underlying issues following oral arguments in Judge Keller's case. I suppose this was necessary at some level, but the Judicial Conduct Commission had ample authority to reprimand Keller legally, just not the cojones. Like the Ethics Commission, the Judicial Conduct Commission was seeking any excuse to reduce the penalty while acknowledging Keller's violations and ended up doing so in a ham-handed way that breached their constitutional authority. Still, as the Austin Chronicle noted, the amendment "would remove a disincentive to the conduct of open proceedings" and by that reasoning alone it deserves passage.

Sharon Keller ethics fine whittled down by 75%

Presiding Judge Sharon Keller on the Texas Court of Criminal Appeals had her record $100K ethics fine knocked down by three quarters, but neither the Ethics Commission nor the Attorney General will explain why, reported the Houston Chronicle ("Keller settles record ethics fine," Aug. 10)

Sharon Keller, the state's top criminal court judge, has reached a deal to substantially reduce a record $100,000 fine levied by the Texas Ethics Commission for failing to fully disclose millions of dollars of real estate and income in financial statements.

Under the settlement, released Friday, Keller will pay $25,000 to resolve repeated violations of the section of state law that governs personal financial disclosures for elected officials.

In a move that surprised even state watchdog groups, the commission in April 2010 slapped Keller with a $100,000 fine - the largest-ever civil penalty against a politician - after finding that she did not report a total of at least $3.8 million in earnings and property on two annual financial statements.

Keller fixed the omissions on the financial statements, but appealed the commission's fine to a Travis County state District Court, where it languished for three years.

On Thursday, the Ethics Commission approved the settlement with a 7-0 vote, but referred questions to the attorney general's office, which represents state agencies in legal matters. The attorney general's office declined comment.

The decision was announced on Friday afternoon, a tried and true tactic to minimize press coverage of controversial government decisions. The Chronicle gave this detail about the violations for which the penalties were ratcheted down:

According to the Commission's complaint, Keller in 2006 failed to report between 100 and 499 shares of stock, $61,500 in income, interest in eight properties valued that year at $2.4 million and two expenses totaling $3,760 that were accepted under the honorarium exception.

The commission said that in 2007 Keller failed to report the stock, nine sources of income totaling $121,500 and two honoraria valued at $6,010. She also failed to report the eight properties again, then valued at $2.8 million.

Keller has said the omissions were unintentional, but admitted in the settlement that they "constituted violations of her reporting obligations" as required by state law, according to the settlement. She will have to pay the $25,000 within 30 days after the deal is finalized.

The income Keller failed to report in 2007 alone is nearly as much as she made for her job as a judge, which makes it difficult to accept the claim that the omissions were an oversight. If asked your income on a sworn document, would you be likely to forget nine sources of income totaling in the six figures? In any event, Austin District Judge Orlinda Naranjo must approve the settlement agreement before it is finalized.

Lege should send constitutional amendment to voters on Judicial Conduct Commission

The State Commission on Judicial Conduct receives about 1,200 complaints per year against Texas judges, executive director Seana Willing told a House Appropriations Subcommittee today. About half of those are people who don't understand the system and are improperly trying to use the commission as a sort of appellate process. Of the other 600 or so, most complaints are dismissed. Last year the commission gave 49 sanctions to Texas judges, she said,  down from a high of 79 or 80 several years ago. Almost all of the sanctions were "private" and the public may never know about them.

Sunset Commission staff complained at the hearing that the commission's confidentiality provisions wouldn't let them adequately evaluate the process, recommending the agency be evaluated again in six years instead of twelve. Moreover, Sunset implied that there really wasn't a good reason for so many informal findings to be secret, and one legislator pointed out that their own foibles were instantly public.

Though she never mentioned her by name, Willing raised the conundrum that caused Court of Criminal Appeals Presiding Judge Sharon Keller's misconduct finding to be overturned: The commission has access to a complete range of punishments in its secret proceedings, but in its public proceedings the range of punishments they can give are inexplicably limited. Sharon Kellers' misconduct trial was one of the commission's rare public proceedings (they've had 12 in 10 years) and their ruling was overturned because they chose to "warn" Keller instead of "censure" her. From any perspective it was an absurd and unsatisfying outcome, with the punishment deleted but the misconduct findings remaining intact. To fix the problem would require a constitutional amendment, said Sunset staff, that would require a one-time cost of $105,000 to hold an election.

I hope the Lege does send such a constitutional amendment to the voters. Sharon Keller's misconduct trial demonstrated there's massive confusion over conflicts between the state constitution, the statutes, and Texas Supreme Court rules governing judicial oversight. And Grits surely agrees with Sunset there's no good reason judicial misconduct findings should be secret.

Hampton candidacy v. Keller reliant on Gods of Down-Ballot Ticket Splitting

Grits has predicted for years that if and when Democrats finally win a statewide race in Texas, odds are the first one will be on the Court of Criminal Appeals, where Republican candidates routinely poll several points lower than statewide candidates atop the ticket. In that light, Keith Hampton's challenge to Presiding Judge Sharon Keller on that court will be worth watching.

As demographics begin to narrow partisan results in Texas, IMO judges on the state's two high courts will be the first statewide pols to become vulnerable, with Judge Keller and Co. providing a more inviting and cost-effective target of opportunity whenever Democrats decide to make a serious go of it (this, for whatever reason, was not that cycle). During the last presidential election in 2008, incumbent CCA Judge Tom Price won with just 51.6%, a lower figure than statewide candidates at the top of the ticket (McCain took 55.4% of the statewide vote; Sen. John Cornyn got 54.7%), but still higher than Democrat Susan Strawn's 46.4%. Tom Price, though came with none of Judge Keller's baggage, and Strawn's spending in that race was negligible compared to statewide candidates further up the ballot.

Keith Hampton's campaign has garnered support from a variety of unlikely editorial boards - including the Bryan College-Station Eagle and the Amarillo Globe News - not to mention larger papers from the Dallas Morning News , the Ft. Worth Star Telegram , and the Houston Chronicle. His hometown paper, the Wichita Falls Times Record-News, has a flattering feature on his candidacy today. Hampton has tried as well as he could to make hay of the "We close at 5" episode and the fact that Judge received the largest ever fine ($100K) from the Texas Ethics Commission.

On its face, the prevalence of straight ticket voting and a Libertarian alternative makes Hampton's challenge an uphill fight in 2012. OTOH, this is Keller's first electoral test after the the state's guardians of judicial ethics accused her of misconduct, only to see their result thrown out because of an improperly lenient penalty. So I'm pleased a credible candidate stepped up to challenge Keller (as seriously as one can spending $80,000 in a statewide race, if a recent Texas Tribune report is accurate). My father likes to say "there's never been a horse that can't be rode, never been a cowboy can't be throwed," and at least Hampton had the gumption for two cycles in a row to climb up into the saddle. May the Gods of Down-Ballot Ticket Splitting smile favorably upon him tomorrow.

Old foes haven't changed stripes: Keller v. Baird 12 years after Roy Criner's pardon

With Texas Court of Criminal Appeals Judge Sharon Keller facing the only contested general election race among her colleagues (she faces Democrat Keith Hampton in a sleepy but potentially significant contest), and former CCA and District Judge Charlie Baird running as a Democratic challenger for Travis County District Attorney (against incumbent Rosemary Lehmberg), Grits was interested to run across this pair of old interviews of the two former colleagues with PBS Frontline regarding the Roy Criner case, which was essentially Texas' first DNA exoneration, though he was freed by executive pardon rather than the courts. Here's what the two judges had to say about the case back then.

• Charlie Baird
• Sharon Keller

Criner's liberation opened the door for the dozens of DNA exonerations the state has witnessed since, but because Governor Bush pardoned Criner, the case didn't change much about the court's jurisprudence. Sharon Keller won the debate on the court, even if she lost it in the court of public opinion. She convinced a majority of CCA judges to side with her against Charlie Baird, but the following year the Legislature created the state's DNA testing statute in rebuke (Ch. 64 of the Code of Criminal Procedure). When the courts upheld prosecutorial objections to DNA testing, the Legislature came back in 2011, at the recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions and removed most grounds for opposing testing when the evidence could be probative.

What stands out most to me looking at these interviews more than a decade hence is how little Judge Keller has changed her views on innocence and post-conviction writs, and what a tremendous influence her thinking has had on the court. Criner's pardon didn't change the court's ruling, and Judge Keller's arguments back then against exonerating Criner based on DNA were essentially similar to the arguments a more recent 5-4 majority used to keep from granting habeas writs when a conviction was based on junk science. Judge Keller told Frontline:

This DNA test gives negative, not positive, evidence. It would not have made a difference in the jury's verdict. . . Nobody knows for sure. But no state ever says, "I'm not sure. Let's just give him a new trial." Before trial, it's up to the state to prove that he's guilty. Now, it's up to him to prove that he's innocent. That's his burden under the law: Has he unquestionably established that he's innocent?

This is the same argument as in Ex Parte Robbins, where a 5-4 majority including Keller declared that testimony by a medical examiner had "not been proven false" even though the medical examiner (ME) herself and numerous other experts concurred that her trial testimony had presented wrong conclusions unsupported by science to the jury. The district judge had recommended granting a habeas writ, finding that the recanting ME's "opinions were the sole bases of the State's case as to cause and manner of death, without which the State would not have obtained a conviction."

But using the same logic as they did to deny Roy Criner, Keller and Co.denied habeas relief even in the face of a complete lack of inculpatory evidence. The court's own precedents say a conviction may only be overturned if "no reasonable juror" would support it after considering the new evidence. In Robbins' case, the recanted testimony was the "sole" basis for the conviction, but the court ruled its falsity insufficient to overturn the conviction. I can't imagine what "reasonable juror" they're envisioning, but such is the Kellerite logic dominating the majority on today's Court of Criminal Appeals.

You see the same misshapen logic deployed in other arenas dominated by prosecutors, as with the Todd Willingham case at the Forensic Science Commission. The trial testimony about fire and arson was all hokum, it was the only directly inculpatory evidence presented to the jury, but Williamson County DA John Bradley insisted that just because there's no evidence of arson doesn't mean it couldn't have happened. Problem is, the jury wasn't told it "could" have happened; they were told the "fire doesn't lie." This is the precedential ghost of Roy Criner's case, further evidence that Sharon Keller's consistent if often invisible hand is still guiding the state down the same dark path that left the court humiliated in Criner and a national laughingstock. Rather than learn from the experience, Keller and Co. and the hard-line prosecutors whose interests they represent chose to double down and do everything in their power to prevent future science-based exonerations, culminating in the Willingham fiasco and Ex Parte Robbins.

Judge Baird, by contrast, for his dissent in Criner and his decision to speak out about it upon leaving the court, merits recognition as virtually the father of Texas DNA exonerations. It was his testimony before Congress that brought a national spotlight to the case, leading Republican Sen. Orrin Hatch to call the court's ruling "outrageous." Unlike Judge Keller, Baird acknowledged how it would impact jurors' decision if, instead of pointing to guilt, scientific evidence showed the defendant "didn't commit the offense -- at least, [he] didn't commit it under the theory the prosecution advanced at the trial."

When that happens, Judge Keller and the CCA majority think it appropriate for appellate judges to hypothesize other theories of the crime besides the one presented to jurors and suggest they "could" have found this or that alternative convincing. They could have, one supposes, but the case presented to the jury is the basis for appeals, not imaginary alternatives.

Baird, by contrast said of the Keller court's Criner decision, "What they have done, and I think improperly so, is to create or invent reasons that explain away the DNA evidence. But those reasons were never presented to a jury, and that's the basis of the entire judicial system -- you put those facts before 12 individual citizens, and let them decide if that evidence is reliable and believable, or not." One could say the same thing about the Willingham case as well as Ex Parte Robbins. To sustain the verdict would require supposition outside the bounds of what was actually argued at trial.

Keller's virulent pro-death penalty rhetoric and rulings on the court ("We close at 5," etc.) get the most attention from all the culture warriors, but IMO it's the string of cases from  Criner to Robbins that represents perhaps her most lasting and harmful achievement. The Texas Court of Criminal Appeals was going to be pro-death penalty no matter who sat on it, but Presiding Judge Sharon Keller (and her colleagues populating the court's extremist wing) are responsible for this odd, anti-science bent to Texas' innocence/habeas jurisprudence.

Judicial Conduct Commission facing Sunset review in April

Grits hasn't had a chance to read the Sunset Advisory Commission report (pdf) on the State Commission on Judicial Conduct, nor the agency response (pdf), nor the agency's self-evaluation (pdf), but I at least wanted to give readers the links as well as point out bloggerly critiques at Texas Watchdog and the Burnt Orange Report, both of which fault the agency in particular for a lack of transparency. A public hearing April 10 will focus on the agency (with TDCJ and correctional managed health care up in June, see their meeting schedule [pdf]).

One key Sunset recommendation for the Judicial Conduct Commission, the first one, in fact, harks back to the Sharon Keller fiasco where the commission imposed what turned out to be an illegal sanction after adopting findings of fact critical of the judge's decision making and forthcomingness with her fellow judges in the whole "We Close At 5" brouhaha. Sunset Staff recommended Texas adopt a "Constitutional Amendment," to "Authorize the Commission to use its full range of sanctions following formal proceedings."

Another key problem identified by Sunset staff was also readily apparent in the Keller fiasco, in retrospect: "Inconsistencies Between Its Statute and Rules Create the Potential for Litigation and Inefficiencies in the Commission's Operation." Indeed, discussions by commissioners during that episode made it clear this was an ongoing issue that arises for them frequently, whereas the first recommendation was more or less unique to Keller's situation.

Other recommendations and critiques, say the two blog posts, related to a lack of transparency even (perhaps particularly) with Sunset staff. I'd have to read the reports themselves to say more, but anyone interested in participating in the agency's Sunset process should find all they need in the above-linked documents to get engaged.

The Dissenters: Which TX appellate judges author dissents? (Hint: Sharon Keller writes the most)

Presiding Judge Sharon Keller of the Court of Criminal Appeals authored more dissenting opinions in FY2011 than any other Texas appellate judge, Grits was surprised to discover. According to data (xls) from the Office of Court Administration annual report, dissenting opinions are incredibly rare among Texas appellate courts, and only a handful of justices author most of them, Grits' analysis found. Here's a list of the number of dissents at each Texas appellate court in the year ending Aug. 31, 2011, listing every justice who authored more than two dissents:

1st Court (Houston): 32
Terry Jennings: 6
Evelyn Keyes: 4
Jim Sharp, Jr.: 17

2nd Court (Fort Worth): 21
Lee Ann Dauphinot: 13

3rd Court (Austin): 17
Jan Patterson: 3
David Puryear: 5
Diane Henson: 3

4th Court (San Antonio): 4

5th Court (Dallas): 4
Mary Murphy: 4

6th Court (Texarkana): 3
Jack Carter: 3

7th Court (Amarillo): 2

8th Court (El Paso): 0

9th Court (Beaumont): 5
David Gaultney: 4

10th Court (Waco): 6
Chief Justice Thomas Gray: 4

11th Court (Eastland): 1

12th Court (Tyler): 0

13th Court (Corpus Christi): 8

14th Court (Houston): 21
John Anderson: 3
Kern Thompson Frost: 7
Tracy Christopher: 4

Total dissents by Texas Court of Appeals justices: 124
Total original opinions on merits: 6,199

Chief Justice Thomas Gray at the 10th Court may have the reputation as the state's most ardent dissenter among appellate judges, but by the numbers he's certainly not among the most frequent, or wasn't last year.

At the Court of Criminal Appeals (pdf), similarly, a handful of judges, led by Presiding Judge Sharon Kelle, accounted for most dissents authored on the court:

Keller: 20
Price: 9
Meyers: 8
Johnson: 4
Cochran:  2
Alcala: 2
Keasler: 1
Hervey: 1
Holcomb: 0*
Womack: 0

*Replaced by Alcala this summer.

No Texas Supreme Court Justice authored more than 6 dissents (Phil Johnson).

That said, how should one interpret this data? Are more dissents a good or bad thing? It depends, of course, on the dissent and the dissenter. A jurist who never dissents may just be going along to get along, refusing to assert principle when it's called for. By the same token, there are advantages to judges signing onto an opinion in order to influence its nuance when it becomes obvious dissenters don't have votes to prevail. In Judge Keller's case, the (relatively) large number of dissents may represent growing frustration as she's begun to lose her once-iron grip on the court to a nascent plurality of still-conservative but more independent thinkers. It's probably impossible to generalize. I just found the disparities interesting and thought other court-watchers might too.

Two candidates against Judge Sharon Keller must unleash attack dogs to win

Photo via US Marines' official Flickr acount

The most interesting statewide political race in Texas next year that no one's talking about are twin challenges to Judge Sharon Keller on the Texas Court of Criminal Appeals, both from within the GOP by one of her colleagues, Larry Meyers, and in the general election by criminal defense attorney Keith Hampton. Here's Meyer's campaign website and here's Keith Hampton's, along with a recent campaign email from the Austin Democrat. Hampton had originally announced he'd run against rookie incumbent Judge Elsa Alcala, but switched races in order to challenge Keller (or Meyers if he upsets her in the primary).

Judge Keller, the self-styled, "pro-prosecution" judge, has so much baggage coming in it'd be hard to know where to attack first. The findings of facts against her by the Commission on Judicial Conduct were damning and provide ample fodder for campaign attacks. (Her punishment was overturned as illegal but the findings of fact on the merits remained untouched in a circus-like tragicomedy that embarrassed the court and the state.) Keller was also fined by the Ethics Commission $100,000 for failing to disclose a vast web of financial entanglements. (See the ruling [pdf].)

Even more than those dark moments, though, many of her opinions and dissents contain jaw-dropping pro-government assumptions that could be mined for anti-populist material that would make any good Tea-Party type cringe. Just as Governor Perry's greatest political achievement has been to maximize power over state agencies through appointments of political allies, creating a (relatively) strong executive where Texas historically had a weak one, Judge Keller's principal achievement as the CCA's Presiding Judge has been to oversee (and arguably principally author) an expansionist accumulation of government power by law enforcement and prosecutors over nearly two decades. A comprehensive vetting of her opinions by a campaign researcher would yield lots of attack fodder. But these campaigns must undertake that work, then use the information to construct and deliver political attacks: That's the piece that I'm not sure is going to happen, though there's still time.

I'd be happy to see either challenger unseat Judge Keller. To borrow a phrase from Judge Michael McSpadden, speaking recently of Harris County DA Pat Lykos, Keith Hampton and I "are not close, and in fact probably don't like each other," but he'd be a welcome breath of fresh air on the court if he pulled off the longshot upset. Judge Meyers probably faces shorter odds than Hampton at unseating Keller, but so far he hasn't run much of a campaign, that I've seen. He's been on the court forever and in many respects his record as judge isn't much better than Keller's. But he'd surely be a less ideological and polarizing a figure, and if he runs a smart, well-funded campaign he stands a puncher's chance to beat Keller in a primary.

That's just what it is, though: A puncher's chance. And as a political-consultant friend of mine likes to say, "you don't win a fistfight without throwing any punches." Judge Keller is surely the betting favorite to win reelection next year as I write this. If either of these men wants to beat her, they're going to need to attack, hard, and put significant resources behind those attacks. Otherwise the race will garner no attention nor interest amidst the 7-dwarves in the GOP presidential primary and a (theoretically) competitive US Senate race for Kay Bailey Hutchison's seat on the ballot in March. And in the November election, of course, the presidential race will drive turnout and (if history is any guide) drown out discussions of tertiary races like this one.

Judicial races are generally sleepy affairs, but if one or preferably both of these challengers don't bring out the attack dogs, Sharon Keller will skate under the radar to reelection and another six-year term, despite all the embarrassment and divisiveness she's brought to the court.

Odds and ends: Crooked cops, cheering death, and Rick Perry's soft side

I don't have time for much writing this morning, but here are several items that merit Grits readers' attention and would probably warrant longer posts if the Forensic Science Commission didn't start up first thing this morning. Anyway:

Reactions to Rick Perry's soft side
Numerous reactions around the blogosphere to my post last week listing things Rick Perry has done that criminal justice reformers should like: Radley Balko called it "odd" but conceded that the list is "certainly worth considering, and it’s an important contribution to the discourse about Perry among those of us with an interest in these issues." At Mother Jones, reporter Tim Murphy reacted like an audience member in a John Waters film when Divine eats a turd, declaring that compared to Perry's water carrying for private prison companies and strident support for the death penalty, the items on my list had a "How was the play, Mrs. Lincoln?' quality to them." At The Economist, by contrast, Erica Grieder takes the record described on its face and looks to broader lessons from the example. She wonders if reforms in Texas didn't pass because when a "movement comes from the 'wrong' party, its framing reflects that party's concerns and has been reality-tested by its base (as in Bill Clinton's welfare reform, which was described as enhancing dignity and employment). Either way, worth keeping in mind. It may be hard to build a Republican coalition on climate change, for example, or Democrats for social security reform—but if those coalitions did come about, they would certainly get something done."

Cheering death
Rod Dreher at The American Conservative gave voice my own reservations when he said, "the crowd at [Wednesday's] GOP event cheering the execution of 234 Texas death row inmates was one of the most disgusting things I’ve seen in a long time. Even if you’re for the death penalty, you shouldn’t cheer the taking of a human life. At best the death penalty is a necessary evil. Putting even the worst criminal to death, even if he bloody well deserves it (as most of them do) is always a defeat for humanity, and something to be undertaken with sobriety, not bloodlust. What a repulsive display of stupidity and cruelty. Is this what the Republican Party is for?" Doug Berman helpfully suggests more probative questions journalists might ask the governor in the future on the topic.

Do privatized jails save money?
The San Antonio Current says "yes," but only because of lower pay, benefits and pension obligations for guards and staff. An analysis considering privatization of the Harris County jail found much the same thing. So the county could save the same money without privatizing, if they cared to, by slashing pay and eliminating or reducing pensions if that's what they want to happen. Much depends on the relative power of the local deputies union - they're the ones whose ox is being gored.

Dozen Fort Worth officers accused of faking tickets for overtime pay
Three more Fort Worth police officers were indicted over falsifying tickets to earn extra overtime pay. This is in addition to "nine [other] officers accused after an investigation. Six were fired and three resigned. Four of the six who were fired admitted to falsifying records but deny that they did so to collect overtime pay, according to police officials."

Dem candidate targets Alcala instead of Keller on CCA
Attorney and failed TCDLA presidential candidate Keith Hampton will take his second run as a Democrat for a slot on the Court of Criminal Appeals. Though Judge Sharon Keller will (likely) be on the same ballot, Hampton for some reason chose rookie CCA incumbent and recent Perry appointee Elsa Alcala as his target. Having examined her record in some detail, I consider Alcala the least objectionable CCA member up next year and can't understand why Dems would target her as opposed to Keller. The Presiding Judge should be the weakest statewide target for Dems on the 2012 ballot. She's likely the only CCA member with a (relatively) high, if negative, name ID (I'd imagine; I haven't seen polling on the CCA in years and at the time no one knew who they were). Plus, if she makes it to the general election, she'll be weakened by a primary fight with Larry Meyers, a fellow member of the court, as well as having had her campaign coffers soaked for legal fees in her fight with the Commission on Judicial Conduct. If I were a Democratic strategist, I'd be preparing to throw the kitchen sink at Sharon Keller in 2012 with the best candidate one could find. There really aren't any other winnable statewide seats for the Dems that are even a longshot - Keller is arguably the Texas GOP's weakest electoral link.

Alone, inside
Lots of good posts over at Solitary Watch about the aftermath of the Pelican Bay hunger strikes over solitary confinement in California.

Sharon Keller faces challenge from CCA ally Larry Meyers in 2012 primary

If one needed further evidence that the Texas Court of Criminal Appeals is an extremely divided body, one need look no further than the decision by Judge Larry Meyers - usually a member of the Keller-Hervey pro-prosecution wing of the CCA - has decided to run against Sharon Keller as presiding judge in 2012 in the Republican primary, leaving an open seat on the CCA. Reported the Fort Worth Star-Telegram ("Fort Worth judge to run for top spot on Court of Criminal Appeals," July 27):

Texas Court of Criminal Appeals Judge Lawrence "Larry" Meyers confirmed Wednesday he is planning to run for the court's top spot, challenging controversial presiding Judge Sharon Keller in next year's Republican primary.

Meyers, of Fort Worth, was the first Republican elected to the Court of Criminal Appeals in 1992 and is currently its longest serving member.

On Tuesday, he sent a brief memo to his colleagues explaining his decision to seek higher office, implying that Keller has held the presiding judge position for too long. Keller has been on the court since 1994 but has served as presiding judge since 2000.

"The normal term for this position is 8-10 years. As such, it is time to rotate the presiding judgeship on our Court," Meyers wrote in the memo.

Keller, now in her second term as presiding judge, said she wasn't aware of Meyers' plans to run against her until the memo was circulated to members of the court.

The Startlegram mentions that this isn't the first time a member of the CCA has run against Keller. "Tom Price, currently the court's third most senior member after Keller and Meyers, ran against her in the Republican primary in 2000 and 2006." She won their last matchup by a 53-47 margin, but Price is a member of the more moderate wing of the court, while Meyers' challenge comes from a judge who's sided with Keller on most topics - and even went on a damage-control tour with the media on her behalf at the height of her troubles - but who now appears to have had enough of her. That coupled with Judge Keller's bouts of bad publicity could give the race a different dynamic in next spring's GOP primary.

MORE: From Paul Kennedy at The Defense Rests.

Note to Florida: Texas high criminal court not a model that should be emulated

Most of the criticism of the Texas Court of Criminal Appeals involves its spats with federal courts over the death penalty, its belated conversion to allowing innocence claims, and the troubles of its Presiding Judge Sharon "We Close At 5" Keller, who was assessed the largest ethics fine in state history for failing to disclose real estate she owned and corporate boards she sat on. But really, the reason the CCA most merits disapprobation isn't the public sins of its leader nor its institutional role as a Culture War flashpoint on the death penalty. It's that, day to day, the Texas CCA's notorious, virtually self-acknowledged pro-prosecution slant means Lady Justice decides cases with one eye peeking out from under her blindfold and her thumb on the scale. Their rulings are frequently so extreme they override those of Republican justices at the various Courts of Appeals, where jurists tend to exhibit a more healthy disrespect for overt judicial activism. At the CCA, often the point of their rulings seems to be affirming their activist proclivities, picking which side they think should win (the state) then constructing often strained, convoluted justifications to support their desired outcome.

Liberty and Justice for Y'all provides a good example of that bent in a decision  overturning a recusal order from the Second Court of Appeals after a trial judge had announced he would accept no plea short of the maximum sentence in the case. IANAL, but this seems like a no-brainer to me: You routinely see plea bargains reached during trial or even, occasionally, during jury deliberations. Refusing to plea before trial shouldn't mean a plea during trial should be prejudiced by arbitrary judicial constraints hostile to the defendant. But the CCA knew which side they wanted to win, then manufactured a hypothetical interpretation that it used to trump the lower court, stating that the trial court's prejudicial comments "could quite logically and reasonably have been a short-hand" for a sentiment the CCA would consider acceptable. So based on that hypothetical "could," they said the judge could stay. And if it had been the prosecution seeking recusal, there's little doubt they'd have hypothesized a "could" that would allow them to rule the other way.

Another recent example, also from Liberty and Justice for Y'all, involves a CCA decision that blogger B.W. Barnett said placed the subject of a police encounter in a no-win position. If the defendant had not complied with a police officer's command, he wrote, "there is no doubt the court would now be using his noncompliance to justify a more intrusive search. There is absolutely no way for the defendant to win here." That sort of one-sided decisionmaking over the last decade has become the general rule on the court, with victories by "moderates" (i.e, conservative, pro-death penalty Republicans who AREN'T judicial activists) becoming the rare, notable exception.

In Florida, strangely, their Legislature is considering splitting their Supreme Court into civil and criminal high courts along Texas' model, but based on our dysfunctional experience, that wouldn't be a good idea. Appellate judges who hear both criminal and civil cases IMO tend to have a more holistic view of the law and the impact of their rulings. The level of rigor applied to experts, for example, is generally much higher (and their testimony much more rigorously opposed by defense experts) in civil cases than in criminal ones. And hearing both types of cases gives justices insight into how slanted legal themes might affect the general public, as opposed to just the narrow subsection of the underclass who make up most criminal court dockets.

If I had my way, Texas would go in the other direction and collapse its high criminal and civil courts together, as is the case nationally and in most other states. The CCA's caseloads have been declining and many of the discretionary cases they take are simply opportunities for activism, not because there's a sea of unresolved legal questions out there. Texas' CCA is a Reconstruction-era anachronism and there's no real purpose or benefit any longer, if there ever was, from having two high courts in the state.

Final word: Court won't reconsider Keller decision

From AP. I think I can speak for everyone in saying I'm glad it's over. A likely less universal reaction is that I'm glad the three-judge panel at least fixed their error pinning Keller's legal fees on the taxpayers before denying the motion to reconsider.

At this point, opinions pro and con are more or less set in stone, and Keller's punishment, though not the findings criticizing her actions, has been finally overturned. In any event, a record was established, a conclusion reached by the commission, and blundering errors were witnessed throughout the process - from Richards' attorneys' missteps on the final day of his life to execution day procedures at the Court of Criminal Appeals to every stage of oversight afterward. But most importantly a rare, public debate occurred over the propriety of Keller's actions, casting more light on the court and its frequent dysfunction than it's seen in many a year.

Judge Michael Keasler's trouncing of Democrat Keith Hampton in last week's election casts doubt on whether Keller may be held accountable at the ballot box unless it's in a Republican primary, but of course, you never know. My great grandfather, Arch Sneed, worked as a cowboy on the XIT Ranch in the Texas Panhdndle from the time he was a as a teen in the 1890s until the historic ranch closed. As he was fond of saying when I was just a tot (a sentiment that's always stuck with me), there's never been a horse that can't be rode, never been a cowboy can't be throwed.

Taxpayers won't pick up Sharon Keller's legal tab

Taxpayers won't be paying for Sharon Keller's legal fees, reports the Austin Statesman's Chuck Lindell:

Clearing up confusion in its order dismissing an ethics rebuke against Judge Sharon Keller, a special court of review has issued a new order that no longer makes taxpayers liable for Keller’s legal costs.

The court’s original Oct. 11 order said Keller could recoup legal costs from the State Commission on Judicial Conduct - estimated by her lawyer to be “in the six figures” but probably less than $1 million.

State law, however, specifies that court costs and attorney fees cannot be awarded in judicial conduct proceedings. The new order deletes the reference.

Between her legal fees and being ordered to pay the largest ever ethics fine in Texas history, Keller's hubris has cost her a great deal financially if not politically. Lindell adds that the three judge panel "has not yet ruled on the motion for rehearing" in Keller's misconduct case.

For my part, I still don't understand why Keller hasn't been brought up on criminal charges for the ethics violations. In explaining why State Rep. Kino Flores was prosecuted for similar non-disclosure violations, Travis County District Attorney Rosemary Lehmberg recently said  "This verdict represents the public saying to public officials accurate and full public disclosure is an important part of public service ... The public will not accept excuses like, 'I was too busy' or 'I just didn't know.'" Yet those are precisely Sharon Keller's excuses for not reporting millions in assets and secret seats she held on multiple corporate boards. I can't help but think anyone else would face criminal liability in addition to the Ethics Commission fine if they engaged in the same behavior.

Did court illegally order state to pay Sharon Keller's legal bills?

Examiners for the State Commission on Judicial Conduct have filed a motion for rehearing with the three-judge panel that dismissed charges against the Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals, arguing that the judges should have sent the case back down to the commission for resentencing, reports Chuck Lindell at the Austin Statesman. I agree, but I'd be shocked if the court revisits the question.

Lindell's story included another tidbit, though, that I hadn't caught from the court's earlier decision: "The motion also asked the court to rescind its decision to let Keller recoup her legal costs from the state, noting that Texas law explicitly bans the practice when judges are investigated for potential wrongdoing." I didn't realize they'd said the state should pay her legal bills and indeed was under the impression they could not do so. Indeed, according to the motion:

Section 33.031 of the Texas Government Code ... expressly prohibits the award of costs or attorneys’ fees in this proceeding. See TEX. GOV’T CODE Section 33.031, “No Award of Costs” (“Court costs or attorney’s fees may not be awarded in a proceeding under this chapter.”)

So to recap. First the fact finding judge made sanction recommendations beyond his purview, then the SCJC gave Keller what she called "lawless" leniency by not punishing her more harshly, then the three-judge appellate panel apparently issued its own "lawless" ruling telling the state to pay for Keller's high-priced lawyer.

This whole affair has frequently been called a "circus" and increasingly it's clear that's an apt description: Every step of the process has been governed by clowns.

When lawyers strike (or not)

I've been debating whether to devote space on Grits to a suggestion from the new blog "Lawyers on Strike" that Texas lawyers "strike" next month to protest Judge Sharon Keller, but I hesitated because Mark Bennett and Scott Greenfield have cataloged most of the critiques I have of the idea from a practical perspective. It seems like the tactic, even if successful, would throw the lawyers' clients under the bus. For my part, I'd lose respect for any attorney who followed through on the idea without getting their cases reset, which of course would require showing up in court and make the idea of a strike moot.

However, I'll add a few observations from the perspective of a political tactician that make me even more skeptical about the idea beyond issues of legal ethics: IMO the notion is simply bad political strategy and misunderstands the role of blogs and new media in modern politics, for several reasons.

Direct action like strikes are risky endeavors and the stakes must be high to justify it. When unions strike it's to force concessions at the negotiating table in their contracts. This suggestion, however, merely serves a symbolic purpose; even if wildly successful it would not provide leverage for political actors to make substantive change in its wake. Such symbolism may massage the egos of those promoting it but it doesn't actually help anybody in the real world as a practical matter. In the writer's initial post on the subject he asks: "Will it matter?  Will anyone even pay attention, to say nothing of actually engaging in a strike?  If anyone did, would it ever be an effective remedy for what ails the system?  That’s the experiment." IMO those are questions  that responsible leaders must be able to answer before calling for direct action. You don't "experiment" with people's livelihood or the fate of defendants just out of curiosity with no identifiable prospects for success.

Direct action gets romanticized by folks who've read tales of success by Gandhi, MLK, and sit-ins at southern lunch counters in the '60s. But in more recent times, those tactics have become dated and those in power have learned how to counter them or just sit them out. The best example is probably the futile sign-holders at anti-death penalty protests in Huntsville prior to every execution. Only the most jejune gudgeon would fantasize that approach has a remote chance of ending the death penalty in Texas. I don't want to be mean about it, but even those participating in such efforts don't believe their actions will change anything; they just can't think off anything else to do.

In my 20+ years in Texas politics, I've seen direct action succeed exactly once out of dozens of examples (excluding labor disputes over contracts), and that was because it was part of a broader strategy, with environmentalists chaining themselves to construction equipment long enough for attorneys to go to court to stop illegal destruction of endangered species habitat by a developer west of Austin. But direct action itself didn't change anything, it just bought time to get the issue into a courtroom. If the tactic hadn't been part of a broader strategy it would have been pointless. That's my biggest problem with the suggestion that lawyers strike, however corrupt or dysfunctional one may consider the system to be: I don't see the endgame.

Further, blogs are not an effective vehicle to promote this tactic, even if you think a symbolic statement serves some purpose (which in general, I do not). Blogs have extremely limited reach, at best. Grits has been operating for more than six years and gets upwards of 50,000 visitors per month. But when I was at the Innocence Project of Texas' annual meeting recently, Jeff Blackburn asked the audience - mostly criminal defense lawyers and law students - how many of them read Grits for Breakfast: perhaps a third of the group raised their hands. I'll guarantee the blog Lawyers on Strike enjoys a tiny fraction of Grits' readership, so how can Atticus hope to inspire collective action if most people being asked to act will never hear the request? Blogs are frequented by people who are actively seeking out information, which is a small subset of folks: Their audience is made up of opinion leaders, not the "masses."

Strikes require disciplined organization and blogging is an endeavor that at best generates only weak connections among people. (See this recent Malcolm Gladwell article from the New Yorker fleshing out that argument.) Political organizing for direct action requires strong leadership and tremendous group cohesion, whereas the blogosphere is more analogous to a a bunch of leaderless, milling cats who can barely agree on the time of day. That's even more the case when, as Greenfield pointed out, the blogger advocating direct action is anonymous - in this case adopting the hackneyed nom de plume "Atticus" from To Kill a Mockingbird. One cannot build strong connections with your constituency if they don't even know who you are. And since, as mentioned, strikes are risky endeavors, nobody is going to act on the suggestion of somebody who won't even risk revealing their name. You can bet the courts will know the names of lawyers who strike, and as Bennett points out they'll likely face sanctions and maybe even jail time for contempt if they follow Atticus' advice.

Finally, the suggestion is naive insofar as it dramatically underestimates what's required to pull off an action on the scale necessary to have any impact. Atticus has recommended November 17 as the target day for a strike. But even if you believe the tactic has merit, that's an absurd goal for a statewide action. If one were serious about promoting that kind of large-scale event, it would take a year or more to do all the legwork necessary to make it happen. One would have to identify all members of the target group to be organized, expend resources (mail, phones, public meetings, advertising, etc.) to educate them on the hows and whys of the effort, create mechanisms for individuals to have input and buy-in, then mobilize them using an array of tactics, just like electoral campaigns do with GOTV efforts on election day. You're not going to get there just by setting up a blog on Wordpress and announcing anonymously "Everybody do what I say."

It's not that I don't believe blogging has a role in political activism. Recently Grits launched and ultimately succeeded in a year-plus-long effort to create Indigence and Amnesty programs for the million-plus drivers who've lost their licenses under Texas' Driver Responsibility Program. However. it wasn't editorializing on the blog that achieved that goal: I had to physically go speak to the Public Safety Commission (and not anonymously, either), build alliances with sympathetic organizations, and participate actively in deliberative processes at DPS to win even a partial victory. I'd been criticizing the DRP for years on this blog and in other forums before that, but in and of itself blogging wasn't going to change public policy. It's just one tool in the toolbox and you can't build a house if the only tool you've got is a hammer, however helpful it may be at the one task for which it's suited.

Blogs and social media have a role but they cannot and will never be the end-all-be-all of political activism. To have an impact, one must know what they're good for and what they're not: Organizing strikes definitely falls in the latter category.

UPDATE: See the "strike" organizer's response.

A rare beast and a self serving excuse

There's been a remarkable sighting: That rarest of beasts, a Texas prosecutor convicted on misconduct charges! A divided Texas Court of Criminal Appeals upheld a conviction for improper influence by a prosecutor after the Kleberg County Attorney attempted to intervene to avoid charges against his aunt, reports Liberty and Justice for Y'all.

LJ4Y quotes Judge Keller's dissent, which sounds particularly adamant, as though she's feeling her oats after appellate judges overturned misconduct findings against her by the State Commission on Judicial Conduct: "If a defendant tries to get his aunt’s case dismissed because he wants to help his aunt, has he committed a crime?," she asked. "The Court says yes. I disagree. I think it is what the defendant says, not what he thinks, that makes an attempt to influence a public servant improper." Uh huh ... sorta like when you say "We close at 5" but what you're really thinking is "F-you David Dow!"

Keller warning overturned

The three-judge panel in Sharon Keller's case overturned her public warning and ended the case because the State Judicial Conduct Commission applied an improperly lenient sentence. Reports the Austin Statesman:

A special court of review Monday threw out an ethics rebuke given to Presiding Judge Sharon Keller for closing the Court of Criminal Appeals at 5 p.m. despite knowing that lawyers wanted to file an appeal for an inmate facing imminent execution in 2007.

Ruling not on the merits of the case but on the way it was handled, the three-judge panel also threw out the charges that accused Keller of violating her duty as a judge and prohibits the State Commission on Judicial Conduct from refiling the accusations.

The commission cannot appeal Monday’s ruling. ...

Bringing the high-profile case to a swift and stunning end, the review court said the commission committed fatal errors that doomed its punishment of Keller, issued in the form of a July “public warning” that chastised the state’s highest criminal judge for violating court procedures and bringing discredit to the judiciary. 

In essence, commissioners chose the wrong punishment, opting for a warning when state law and the Texas Constitution limited their options to a “censure,” a more serious penalty, the court ruled.

The judges said they did not address the merits of the charges against Keller but based their decision solely on the errors committed by the commission.

What a disappointing ruling for all involved: Keller gets the warning overturned on a technicality with the findings of fact on the merits untouched, while the State Commission on Judicial Conduct's improper leniency denuded the agency's authority in one of its highest profile cases ever. Nobody looks too good here. I don't begrudge the judges their ruling. As I'd written after the public arguments, "I certainly didn't leave the room feeling as though there was an obviously 'correct' decision I could easily identify." The SCJC really screwed the pooch on this one. Maybe one day we'll learn the backstory on why they chose not to follow the law after issuing such damning findings of fact.

MORE: From Jeff Gamso who provides a link to the final opinion and concludes, depressingly, "if we've learned anything by now, it's that the system protects its own."

Keller appeal of "warning" due today

Something to watch for: Today (Friday Oct. 8) is when the three-judge panel in Judge Sharon Keller's disciplinary proceedings with the State Commission on Judicial Conduct are scheduled to issue their ruling on her motion to dismiss the case. See earlier Grits coverage of the hearing and filings in the case with the SCJC.

UPDATE: The ruling has been delayed and will supposedly be out next week.

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.