Blind Justice in Texas : Judge Keller Faces Impeachment Trial

Texas Judge Sharon Keller, and Michael Richard, who was executed after Judge Keller closed her door to his appeal. Keller photo by Elena Grothe / Austin American-Statesman. Photo of Richard from Texas Department of Criminal Justice.

Sharon Keller – presiding judge on the Texas Court of Criminal Appeals — created a flood of world-wide outrage when she blocked an appeal from defense attorneys for death row inmate Michael Richard by declaring her doors closed at five o’clock sharp. Now she’s being called to account.

By Thorne Dreyer / The Rag Blog / February 20, 2009

The Texas criminal justice system – and it is only with the truest of grit that we refrain from placing justice in quotes –- is perhaps the greatest current blight on the great State of Texas. (And there is substantial competition in “the best and the blightest” category. Texas’ sadly lacking health care system. The “creation science” obsessed Board of Education. And clueless Rick Perry for chrissakes, ol’ Governor Goodhair, who most recently has publicly pondered refusing the state’s due take from the recovery bill.)

But in arguing that the honor go to the “justice” and corrections system — where the mantra de jour is “incarcerate, incarcerate, incarcerate” — we must note the state’s over-zealous prosecutors who consistenly cut legal corners to get convictions. And the prosecution-driven, demonstrably flawed and cover-up riddled crime labs. And the absolutely disgraceful, perennially overcrowded Harris County Jail. But the darkest mark on the State of Texas is the assembly line of death that leads the nation in executions by a whopping margin. Texas’ revolving door death row shames us all.

Of course, we can’t leave out the state’s higher courts that regularly ignore exonerating evidence and side with the prosecution over the defendant.

But finally, a call to account.

Sharon Keller –- presiding judge on the Texas Court of Criminal Appeals — created a flood of world-wide outrage when she blocked an appeal from defense attorneys for death row inmate Michael Richard by declaring her doors closed at five o’clock sharp. This despite the fact that defense attorneys had reported that they were having computer problems and asked that the offices be kept open for an additional 20 minutes.

As a result the appeal was not heard and Richard was executed several hours later.

Now Judge Keller is going on trial and facing impeachment.

The following report is from Chuck Lindell in the Austin American-Statesman.

The state judicial ethics commission has charged Sharon Keller, the presiding judge of the state’s highest criminal court, with violating her duty and bringing discredit upon the judiciary when she declined to allow a death row prisoner to file an after-hours appeal in 2007. The inmate, Michael Richard, was executed about 3½ hours later.
[….]
Richard’s lawyers, experiencing computer problems, had asked the court to stay open for an appeal based on that morning’s decision by the U.S. Supreme Court to examine whether lethal injection amounted to cruel and unusual punishment.

The Supreme Court review halted all executions for seven months — except for Richard’s. Denied the proper forum to raise the appeal, he was executed at 8:20 p.m. that night.

One week later, the Austin American-Statesman reported that Keller made the decision to close without consulting the other eight judges on the appeals court, even though several stayed past 5 p.m. in anticipation of a late appeal. The report ignited global protests and several complaints to the judicial ethics commission claiming that Keller violated her legal obligations and deprived Richard of his constitutional right to court access.
[….]
Keller will face a public trial to answer the charges and could be removed from office, reprimanded or exonerated.

Hal at Half Empty commented :

In my humble opinion, someone who is condemned to death — that is the public ending of his days — deserves to be heard and does not deserve the peckish and decidedly icy response “we close at 5.” It reflects on the entire state, and deservedly so, as it was the voters that put this cold-hearted woman on the bench.
[….]
I believe the words that sealed the ultimate fate of this man, accused of rape and murder, were “We close at 5.”

Judge Keller’s action, or lack of same, in the case of Michael Richard was far from an isolated instance, but was part of a history of highly questionable judicial activity on her part..

Rick Casey reports in the Houston Chronicle:

This is a woman who voted to deny freedom to a man imprisoned for rape even after DNA evidence showed the sperm belonged to someone else. Her argument: He might have worn a condom.

Later evidence provided proof of his innocence even she couldn’t explain away.

This is a woman who, with her colleagues, appointed grossly incompetent lawyers to handle appeals for indigent death row inmates and then said, “Sorry, your client had his chance,” when skilled lawyers later came in to try to clean up the messes.

This is a woman who, a week before Christmas in 2002, voted to deny freedom to a man who under pressure had accepted a plea bargain for a crime that new evidence showed — “unquestionably,” according to the trial judge who heard the evidence — he did not commit.

Now, Keller stands accused of five violations of the state constitution or its judicial code of conduct.

Judge Keller — who was a prep school girl with a degree in philosophy from Rice Unviersity before deciding to attend law school — was interviewed on PBS’ Nightline about the rape case of Roy Criner, the man mentioned in the Chronicle article whose conviction was later overturned after Keller’s decision to keep him locked up in the face of potentially exonerating DNA evidence. Judge Keller said that Criner

…did not meet his burden to prove that he is actually innocent of this offense. At best, he established that he might be innocent. We can’t give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important.
[….]
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?

In a later update about the documentary , Frontline informed that “Roy Criner was pardoned in August [of 2000] by Texas Gov. George W. Bush after DNA tests proved he could not have committed the rape and murder for which he had served nearly ten years in prison.”

They added,

In [the Frontline documentary] “The Case for Innocence,” both District Attorney Michael McDougal and Appeals Court Judge Sharon Keller defend their refusal to grant Criner a new trial, suggesting that the sixteen-year-old victim–whom Keller calls “promiscuous”–could have had sex with someone else before Criner raped and murdered her. The fact that Criner’s DNA was not present, they said, proved nothing.

DNA testing conducted after the FRONTLINE broadcast, however, confirmed that a cigarette butt found at the murder scene had traces matching both the victim and the semen donor, placing the latter at the scene of the crime. The district attorney subsequently recommended that Criner be pardoned.

We’ll close with the following from a The New York Times editorial published Feb. 18.

…The case prompted widespread outrage. A group of lawyers filed a complaint with Texas’s State Commission on Judicial Conduct, but more than a year later, the commission, inexcusably, still has not taken any public action. This week, State Representative Lon Burnam introduced an impeachment resolution against Judge Keller, accusing her of “gross neglect of duty” and “willful disregard for human life.”

If the facts are as reported, Judge Keller should be removed from the bench. It would show monumental callousness, as well as a fundamental misunderstanding of justice, for a judge to think that a brief delay in closing a court office should take precedence over a motion that raises constitutional objections to an execution. If the facts have been misreported, the impeachment process would allow Judge Keller to set the record straight.

Impeaching a judge is not a step a legislature should take lightly. It is important that judges be insulated from political pressures so they have the independence necessary to administer justice fairly. But judges cannot be allowed to use their extraordinary discretion to deny litigants the fundamentals of due process. That is especially true if the stakes are literally life or death.

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