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Compassionless Conservative Texas Judge Closes Court Promptly, Ensuring Execution

by Matt Clarke

Sharon Keller, 54, presiding judge of the Texas Court of Criminal Appeals, has come under sharp criticism for refusing to keep the court open twenty minutes past its usual closing time to permit a late filing.
The late filing request was to allow attorneys for a death-sentenced prisoner to submit an appeal based upon a decision issued by the U.S. Supreme Court on the same day their client was scheduled for execution.

Keller’s staunch, some say over-the-top, support of the death penalty has earned her the nickname “Killer Keller.” She has called the failure to execute convicted murderers “a human rights violation.”

At 10:00am on September 25, 2007, the U.S. Supreme Court announced it would review a challenge to the “triple cocktail” method of lethal injection raised by two death row prisoners in Kentucky. Texas uses the same method of execution.

Texas prisoner Michael Wayne Richard, 48, was scheduled to be put to death that same day. Working at break-neck speed, David Dow, a University of Houston professor and expert in capital murder law, prepared a 107-page ap-peal in Richard’s case. Dow was to e-mail the appeal to the Texas Defender Service in Austin, which in turn would make 11 copies and deliver them to the court. However, Dow experienced computer problems and the e-mail didn’t get to Austin until 4:50pm.

Judge Keller was informed of the problem and was asked to keep the clerk’s office open for an additional 20 minutes. She refused, and ordered the clerk to close the office promptly at 5:00pm. Keller did not inform the three judges still work-ing at the court, who could have handled the late filing, that a death penalty appeal was expected. Nor did she inform Judge Cheryl Johnson – to whom Richard’s case had been assigned – about the computer problems and late appeal. She simply went home and presumably slept the sleep of the self-righteous.

Richard’s attorneys filed a last-minute appeal in federal court, which proved fruitless; he was executed that evening at 8:23 pm.

As a result of the debacle in Richard’s case over 300 lawyers filed a petition with the Court of Criminal Appeals asking the court to allow electronic filing of certain legal documents. The petition included signatures of two former Texas Su-preme Court judges and two former Court of Appeals judges. Most courts in the United States already permit electronic filing. The court responded to the petition by promptly passing rules to allow emergency filings by e-mail.

“It certainly begs the question, of course, why, if they can do this so fast – within two weeks after we asked them to do it – they didn’t do it earlier,” said Jim Harrington, director of the Texas Civil Rights Project. “It underscores the fact that Richard would still be alive if they had done it earlier.”

Harrington represents twenty attorneys who filed a judicial misconduct complaint against Judge Keller alleging that her conduct violated Richard’s civil rights. The State Commission on Judicial Conduct complaint process is confidential, and the results of the commission’s investigation will only become public if disciplinary action is taken against Keller.

Other judicial complaints concerning Keller’s conduct in the Richard case have been filed by the Harris County Crimi-nal Lawyers Association, the National Association of Criminal Defense Lawyers, the Texas Criminal Defense Lawyers Association, the Texas Moratorium Network and several state representatives. A public protest was held in front of Kel-ler’s house, and a grassroots campaign is seeking to have her removed from the bench [see:].

Additionally, Richard’s widow, Marsha Richard, and daughter, Doreen Anderson, have filed a wrongful death suit against Keller in federal court. Keller moved to dismiss the lawsuit on March 26, 2008, claiming judicial immunity as well as qualified, sovereign and Eleventh Amendment immunity. The case is pending. See: Richard v. Keller, U.S.D.C. WD Texas, Case No. 1:07-cv-00946-LY.

The callousness of her actions has thrust Keller, a Republican elected to the appellate court in 1994, into a cauldron of controversy. Previously she had been noted for penning or joining opinions that used absurd theories to affirm ques-tionable convictions. For example, when DNA evidence determined that semen found in a rape-murder case did not match Roy Criner, who had been convicted of the crimes, Keller speculated that he may have used a condom or the vic-tim could have been promiscuous – theories not advanced by the prosecution. Only the discovery of a cigarette butt from the crime scene with DNA matching the semen prevented Criner from spending decades in prison for a crime he didn’t commit. He was pardoned in 2000 by then-Governor George W. Bush.

Keller was also known for having opining that an attorney who slept through critical portions of a capital murder trial was constitutionally adequate because the constitution required only that the state appoint an attor-ney, not that the attorney remain conscious. Fellow Court of Criminal Appeals Judge Tom Price said Keller had made the court a “national laughingstock.”

So what’s the problem with judges in Texas? In one word, elections. Texas judges are selected through a partisan electoral process that leaves candidates with no choice but to adopt a “tough-on-crime” platform if they want any chance of attaining office.

“What are they going to say? I promise to be soft on crime and let criminals go? No, they’re going to say just the opposite and they do,” observed Professor Jim Marcus of the University of Texas Law School’s capital punishment clinic.

Of course, the opposite of what judges like Keller do and say might be perceived as respecting the civil and legal rights of Texas citizens. Upholding the law does not necessarily mean “letting criminals go.” It may also mean “letting the innocent go instead of sending them to prison for decades – or worse, executing them.”

What’s the solution? Appointing judges just makes them beholden to the political philosophy of the appointer, which, in these fearful times, means more “tough on crime” rhetoric. That results in no net benefit.
Instead, perhaps judges should be treated as civil service employees.
They would have to be qualified and pass a test to get the job, and required to take continuing education courses to keep their positions. If they failed to follow the law they would be fired. Such a system might lead to that rarest of judicial concepts – impartial justice for all.

Meanwhile, Texans will have to deal with the likes of “Killer Keller,” whose anti-defendant and pro-capital punishment fervor has been credited with shifting the Court of Criminal Appeals, an exclusively Republican institution since 1994, even further to the right. Keller will not face re-election until 2012.

“This isn’t a liberal or conservative matter – no matter what your opinion is on the death penalty, you’ve got to have due process,” said Jim Harrington. “[Keller is] out of control. It’s frightening to think of the arbitrary power she wields.”

Indeed, she wields power over life and death ... with an emphasis on death.

Sources: Associated Press, Fort Worth Star-Telegram, Houston Chronicle, The Courier-Mail, Angence France-Presse, Dallas Morning News, San Antonio Express-News, International Herald-Tribune

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