A Texas judge who refused to keep a courthouse open to receive a last-minute death penalty appeal did not engage in serious wrongdoing and should keep her job, according to a judge reviewing ethics complaints against her.
Sharon Keller, the presiding judge of the state’s Court of Criminal Appeals, was the center of controversy concerning the 2007 execution of Michael W. Richard, a convicted murderer.
On the day of Mr. Richard’s scheduled execution, the United States Supreme Court effectively suspended lethal injection, the method Texas used. Lawyers for Mr. Richard from the Texas Defender Service rushed to file a last-minute appeal in light of the new ruling.
When defense lawyers sought extra time to file their appeal, Judge Keller replied that the clerk’s office closed at 5 p.m. Mr. Richard was executed a few hours later.
The special master who presided over the ethics hearing, Judge David Berchelmann of the State District Court, wrote that Judge Keller’s conduct “was not exemplary” and that he even found it “highly questionable,” but “she did not engage in conduct so egregious that she should be removed from office.”
Instead, the lawyers for Mr. Richard at the Texas Defender Service came under harsh criticism: “The majority of the problems involving the Richard execution were the responsibility of the T.D.S.,” he wrote. The lawyers relied on paralegals to seek the late filing, he said, when the lawyers themselves should have verified the information and tried to find other ways to file.
In a statement, Judge Keller said she was “gratified” by the decision. While she said at her ethics hearing that she would not have done anything different in the case, in her statement on Wednesday she said she “takes to heart the advice that she should strive to be more collegial and that the court’s internal communications should improve.”
Judge Berchelmann’s findings do not bind the State Commission on Judicial Conduct, which will decide whether disciplinary action is required.
The Texas Defender Service took issue with the judge’s findings, saying, “Shifting the responsibility to ensure access to justice away from the court and to T.D.S. is akin to blaming a paramedic for a car crash victim’s injuries.”
Cynthia Hujar Orr, president of the National Association of Criminal Defense Lawyers, said Judge Keller “needs correction from her peers.”
But Judge Keller’s lawyer, Charles L. Babcock, said that “the opinion basically exonerates her,” and added that he expected the commission “will dismiss the charges and that will be the end of it.”
Source: The New York Times, January 20, 2010
Miscommunication led to disorder in the Texas Court of Criminal Appeals
Her conduct "was not exemplary of a public servant."
She "should have been more open and helpful."
Her judgment "was highly questionable."
"In sum, there is a valid reason why many in the legal community are not proud of Judge Kellers actions," special master David Berchelmann Jr. wrote in a highly anticipated report released Wednesday by the State Commission on Judicial Conduct.
Why, then, did Berchelmann conclude that Keller should neither be removed from office nor even reprimanded "beyond the public humiliation she has surely suffered" from being tried on ethics charges?
In his 16-page report, Berchelmann, a state district judge in San Antonio, reasons that the Texas Defender Service was largely responsible for mishandling a last-minute appeal on behalf of Death Row inmate Michael Wayne Richard.
A Texas Defender Service lawyer made inaccurate public statements about what happened, and that spun out of control in the media, spawning a public uproar against Keller, Berchelmann wrote.
Though she could have and should have acted differently, he said, she didn't cause the defense lawyers' errors.
Richard's case focused a harsh national light on Keller and her court in 2007 when his lawyers failed to get his execution stopped on the day the U.S. Supreme Court said it would review the constitutionality of lethal injection.
Keller declined to keep the court clerk's office open after 5 p.m. when the lawyers were running late, and they didnt try to directly contact Judge Cheryl Johnson, who was designated that day to handle any late filings in the case.
The entire episode was a study in miscommunication but provided fuel for Keller's longtime critics to lobby for her ouster.
In many of her actions and rulings, Keller comes across as rigid and coldhearted, with too narrow a view of whats sufficient due process. The Judicial Conduct Commission accused her of incompetence and conduct that discredited the judiciary.
Richard was on death row for sexually assaulting nurse Marguerite Dixon and shooting her in the head after stealing TVs from her Hockley home in 1986.
According to trial testimony, a Defender Service paralegal called the court at 4:40 p.m. the day Richard was scheduled for execution to see if paperwork could be filed with the clerk's office after 5 p.m., the typical closing time. Ed Marty, the court's general counsel at the time, then called Keller, who said "no."
But neither Marty, nor a deputy clerk nor Keller notified Johnson, who should have been told.
The paralegal called the assistant clerk again at 5:56 p.m. but was told the office was closed. No one from the Defender Service called Johnson or the other 2 judges who had stayed late at the court.
Though the defense team had claimed computer problems prevented them from having documents ready before 5 p.m., Berchelmann said the lawyers didn't prove that. He called it "a crucial mistake" that the defense lawyers left it to paralegals to contact the court and never themselves talked directly with anyone at the court to find a way of filing last-minute papers to stay the execution.
Yes, Keller should have told Marty to notify Johnson, and yes, Keller should have called Johnson herself, the special master wrote. And at the very least, Keller should have told her colleagues what happened, especially the following day when they were puzzling over why Richard hadn't filed an emergency appeal.
But even being a duplicitous colleague my word, definitely not his didn't violate any rules or laws either, Berchelmann concluded.
The 13-member conduct commission now will set a hearing to decide whether to discipline Keller or dismiss the charges.
Even though the special master characterized the "ordeal" as a learning tool rather than grounds for sanctions, he didn't exactly let Keller off the hook. "Although she says that if she could do it all over again she would not change any of her actions, this cannot be true," he wrote. "Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice."
If Keller learned that lesson, it would be important to demonstrate it if she intends to run for re-election in 2012.
Source: Column, Linda Campbell, Fort Worth Star-Telegram, January 20, 2010
Report: Texas Judge Shouldn't Lose Job Over Death-Row Inmate Controversy
An embattled Texas judge who closed her court before a death-row inmate could file his final appeal should not lose her job or receive any further punishment beyond the "public humiliation" she has faced, a judge presiding over her ethics trial said in a report released Wednesday.
But the report makes it clear that Keller is not to blame for a twice-convicted killer being executed Sept. 25, 2007.
"Although Judge Keller's conduct on that day was not exemplary, she did not engage in conduct so egregious that she should be removed from office," wrote state district Judge David Berchelmann, who oversaw Keller's ethics trial.
Berchelmann went on to recommend that Keller was also undeserving of "further reprimand beyond the public humiliation she has surely suffered."
Mocked as "Sharon Killer" by her detractors, Keller has remained the presiding judge of the Texas Court of Criminal Appeals since the uproar began after Michael Wayne Richard was executed. At the heart of the charges against her is whether she denied Richard the ability to file a late appeal in the hours before his execution.
Keller received a phone call at 4:45 p.m. the day of Richard's execution from a court staffer asking if the court would stay open past its normal closing time for Richard's lawyers, who were running late with an appeal. Twice during the conversation Keller said no.
A hearing by the State Commission on Judicial Conduct which can still vote to remove Keller from office, reprimand her or dismiss the charges entirely has not been set. But Keller's attorney, Chip Babcock, said the judge was "gratified" for Berchelmann's report.
Babcock said he cannot imagine how commission could vote to remove Keller given how thoroughly the report says Keller did no wrong. He said he expects all charges to be dismissed.
"It's a 100 % complete validation of her," Babcock said.
In his 16-page report, Berchelmann stopped short of entirely excusing Keller for closing her court, calling the decision "highly questionable." He said Keller should have been more helpful to Richard's attorneys about how they could have filed an appeal.
Keller said during the trial that she wouldn't change her actions if she could do it all over again. Berchelmann said that could not be true, and that "any reasonable person" would realize that open communication benefits the interest of justice.
"In sum, there is a valid reason why many in the legal community are not proud of Judge Keller's actions," Berchelmann wrote.
The report also placed equal blame on Richard's lawyers. Berchelmann said The Texas Defender Service, which represented Richard, embellished the problems preventing them from filing a timely appeal before the court closed.
Berchelmann also said Richard's lawyers did not tell the truth when they told reporters that they were ready to file an appeal at 5:20 p.m., and that they unwisely relied on paralegals instead of experienced lawyers to communicate with Keller's court that night.
"Indeed, the TDS was quite successful in causing a public uproar against Judge Keller, much of which was unwarranted," Berchelmann wrote. The Texas Defender Service did not immediately return a message Wednesday for comment.
Richard was executed for the brutal 1986 rape and slaying of Marguerite Dixon, a Houston-area nurse and mother of 7. He was twice-convicted and failed numerous appeals before the one drafted the night of his execution.
But on that morning, his attorneys saw a window of reprieve when the Supreme Court agreed to review a challenge to Kentucky's 3-drug combination used in executions. Texas uses a similar lethal cocktail, which was the basis of Richard's final appeal.
Source: Associated Press, January 20, 2010
Comments
Post a Comment
Pro-DP comments will not be published.