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Highest Criminal Appeals Judge in Texas Faces Removal Hearing

by Matt Clarke

On February 19, 2009, the Texas Commission on Judicial Conduct charged Sharon “Killer” Keller, Chief Justice of the Texas Court of Criminal Appeals, the highest court in Texas over criminal matters, with five disciplinary charges – including bringing discredit on the judiciary and violating her duty as a judge.

The charges stemmed from Keller promptly closing the court clerk’s office on September 25, 2007, so a prisoner facing execution could not file a last-minute after-hours appeal. As a result, the death row prisoner, Michael Wayne Richard, was executed that evening.

Richard’s attorneys were experiencing computer difficulties and asked the court clerk’s office to stay open 20 minutes late to facilitate the filing of a last-minute appeal based on the U.S. Supreme Court’s grant of certiorari in two other death penalty cases that same day. Several judges stayed late at the courthouse, anticipating such a filing. Without telling them or the judge in charge of the case, Keller ordered the clerk’s office not to remain open to receive the appeal. [See: PLN, July 2008, p.22].

Over 300 attorneys filed complaints against Keller due to her decision to prevent Richard’s appeal from being filed, which led the Commission on Judicial Conduct to bring the five charges against her.

“Judge Keller’s willful and persistent failure to follow [her court’s] execution-day procedures on September 25, 2007, constitutes incompetence in the performance of duties of office...,” the charging document stated.

Keller’s behavior garnered international attention that faded little with time. An editorial in the New York Times the week before the Commission’s announcement of the charges referred to her conduct relative to Richard’s appeal, and questioned the fundamental fairness of Texas’ criminal justice system.

The Commission held three informal hearings during its investigation, and Keller now faces a removal hearing. Austin attorneys Michelle Alcala and Mike McKetta were hired as special counsel to draft the charging document and prosecute Judge Keller. At the hearing Keller will be able to present evidence, call witnesses, cross-examine witnesses and voice objections.

“The judge can put on her case, and we can put on our case,” said Seana Willing, the Commission’s executive director. After the hearing the special master will submit findings to the Commission, which normally has 13 members but presently has two vacancies. If the Commission recommends removal, that decision would be reviewed by a seven-member special panel of appellate judges. The panel can dismiss the case, censure Keller, or remove her from office. Orders of removal and censure may be appealed to the Texas Supreme Court.

Keller has retained Houston attorney Chip Babcock for her defense. “Judge Keller very much denies these allegations,” said Babcock. “But as importantly, there are a number of facts which are omitted [in the charges] that would win the case for her if known.”

Keller will have a chance to present her defense in court, where the special master who presides over her hearing will likely be fairer than she was to Richard. Her removal hearing is scheduled for August 17, 2009 in San Antonio, before State District Judge David Berchelmann, Jr.

Sources: Austin American-Statesman, KPFT Radio, New York Times

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