On January 20, 2010, San Antonio judge David A. Berchelmann, Jr., acting as a special master for the Texas State Commission on Judicial Conduct, issued findings of fact in a disciplinary complaint against Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals (TCCA).
The disciplinary action resulted after Keller refused to keep the court clerk’s office open late on September 25, 2007 to accept post-conviction filings in the capital case of Michael W. Richard, who was scheduled to be executed that evening. On the morning of September 25 the U.S. Supreme Court had agreed to hear arguments in a case involving a challenge to the three-drug protocol used to execute prisoners in Kentucky, which was similar to the protocol used in Texas. This eventually led to the staying of all executions in the U.S. until the Kentucky case was decided. [See: PLN, Dec. 2008, p.37].
According to the Texas Defender Service (TDS), a coalition of attorneys opposed to the death penalty who were representing Richard, TDS contacted the court before the 5:00 p.m. closing time for the clerk’s office, explained they were having computer difficulties and asked Keller to keep the clerk’s office open late to allow them to file their pleadings. Keller said no, twice, stating “We close at 5:00 p.m.” Richard was executed later that night. [See: PLN, July 2008, p.22].
According to Berchelmann, that widely-publicized account was wrong; instead, he faulted TDS for most of the problems. He said the TDS attorneys waited until two hours after the Supreme Court ruling was announced to begin drafting the pleadings in Richard’s case, then assigned a junior staff attorney to the project. Further, they should have raised the issue in a previous filing long before the Supreme Court’s decision. Berchelmann said the TDS lawyers never contacted the clerk’s office or Keller directly; rather, their paralegals contacted Abel Acosta, a TCCA deputy clerk. Acosta contacted Edward Marty, TCCA’s General Counsel, and it was Marty who called Keller and was twice told “no.”
However, Keller’s “no” response was to extending the hours of the clerk’s office, not to accepting late filings. By unwritten and unpublicized policy, the TCCA assigned a judge to be the contact person for each death penalty case. In Richard’s case the judge was Cheryl Johnson. Berchelmann said Acosta and Marty should have called Johnson, who was available to personally accept late filings, instead of Keller, who was the only person who had authority to extend the clerk’s office hours.
Berchelmann placed the bulk of the blame on TDS. He assumed that, had the TDS attorneys called the court clerk or Keller, they would have been informed that Johnson was assigned to the case and could accept late filings. He claimed the computer problem experienced by TDS only prevented them from emailing the documents and did not delay the completion of the pleadings. He said the documents were completed at 5:56 p.m., not 5:20 p.m. as TDS stated. Finally, Berchelmann said that TDS should have known to start calling all of the TCCA judges individually to see if one would accept the late pleadings in Richard’s case, an alternate method of filing documents with the court.
As for Judge Keller, Berchelmann noted her conduct was uncommunicative and she “should have been more open and helpful. Further, her judgment in not keeping the clerk’s office open past 5:00 to allow the TDS to file was highly questionable.” However, she “did not violate any written or unwritten rules or laws.” Therefore, although “there is valid reason why many in the legal community are not proud of Judge Keller’s actions,” her conduct did “not warrant her removal from office or even further reprimand beyond the public humiliation she has surely suffered.”
The State Commission on Judicial Conduct rejected Berchelmann’s findings and reprimanded Judge Keller on July 16, 2010 for interfering with TDS’s attempts to file the late pleadings in Richard’s case, stating her conduct was “clearly inconsistent with the proper performance of her duties as a judge of the Court of Criminal Appeals.”
“By failing to require or assure that staff subject to her direction and control complied with the execution-day procedures on September 25, 2007, Judge Keller interfered with Richard’s access to court and right to a hearing as required by law,” the Commission concluded.
The Commission issued a public warning but did not recommend that Keller be removed from office. See: In Re Keller, Texas State Commission on Judicial Conduct, Inquiry No. 96.
“The people of Texas have been publicly warned ... that we have an ethically compromised judge on the Texas Court of Criminal Appeals who did not accord a person about to be executed with access to open courts or the right to be heard according to law, yet she has been allowed to keep her job,” observed Scott Cobb, president of the Texas Moratorium Network, an anti-death penalty organization.
Keller filed a petition for writ of mandamus with the Texas Supreme Court seeking to void the Commission’s order, and has indicated she will take other legal action to clear her name. Ironically, she is availing herself of the same court system that she denied to Richard.
In an unrelated ethics complaint, Keller was accused of failing to fully disclose her personal finances in statements filed in 2007 and 2008. On April 28, 2010 the Texas Ethics Commission found she had committed ethical violations, having failed to report stock and other income totaling at least $61,500 in her 2007 statement and $121,500 in 2008. She also did not disclose over $2.4 million in real estate holdings. The Commission imposed a $100,000 fine – reportedly the largest ethics fine in Texas.
Keller claimed her father had made investments for her and her son without her knowledge, and noted she had filed amended statements when the discrepancies were brought to her attention. She said she would appeal the fine, which her attorney described as “excessive.” See: In the Matter of Sharon Keller, Texas Ethics Commission, No. SC-290354.
On August 16, 2010, the Texas Supreme Court declined to reverse the public warning imposed on Keller by the State Commission on Judicial Conduct. With ethically-challenged judges like Keller on the bench, it’s little wonder that the Texas criminal justice system has such a wretched reputation.
Additional sources: Texas Moratorium Network, http://gritsforbreakfast.blogspot.com, Austin Statesman, Houston Chronicle
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Related legal case
In the Matter of Sharon Keller
|Cite||Texas Ethics Commission, No. SC-290354|