Discipline sought against Keller

AUSTIN — Texas Court of Criminal Appeals Presiding Judge Sharon Keller should suffer consequences for her conduct in a death row inmate's failed effort to file a last-minute appeal, special prosecutors in the case against her contended Wednesday.

“This is not a case as to whether the death penalty should or should not be administered. This is a case, however, concerning whether a judge should allow herself to disregard at will a long-standing established protocol of her court that is designed to safeguard proper handling of all time-sensitive communications on an execution day,” said the filing, which objected to a special master's earlier conclusions in the case.

The Commission on Judicial Conduct accused Keller of discrediting the judiciary after death row inmate Michael Wayne Richard was unable to file an appeal after the court clerk's closing time on the day of his execution, Sept. 25, 2007. Keller said the clerk's office wouldn't stay open past 5 p.m.

“Citizens' respect for the death penalty is premised on a deep faith and trust that procedures will be so carefully administered as to prevent erroneous or premature executions,” said the document signed by John McKetta, a lawyer appointed by the commission as special counsel in the case that was the subject of a high-profile hearing last year.

The prosecutors' objection said the special master who presided over the case, state District Judge David Berchelmann, focused on the “irrelevant” matter of what caused Richard's execution rather than on what they said were Keller's willful and incompetent actions.

Berchelmann faulted some of Keller's behavior but maintained that she violated no laws. He said the Texas Defender Service — which represented Richard — bore “the bulk of fault for what occurred on Sept. 25, 2007.”

Berchelmann said Keller shouldn't lose her job or be punished “beyond the public humiliation she has surely suffered.”

The Texas Defender Service earlier disputed Berchelmann's characterization, and the prosecutors said Wednesday, “The issue here is not TDS's conduct, but Judge Keller's conduct.”

The prosecutors asked that the Commission on Judicial Conduct, which will consider the special master's report, “determine such consequences to Judge Keller's conduct as the Commission finds to be supported by the findings and to be just.” They said her conduct authorizes action under an article of the Texas Constitution that allows for discipline, censure or removal from office. Removal would require further proceedings.

The case arose after Keller took a telephone request just before 5 p.m. on the day of Richard's execution that the court clerk's office stay open past normal business hours so his lawyers could file an appeal based on a U.S. Supreme Court decision to consider the constitutionality of lethal injection. Richard's attorneys contended computer problems delayed their efforts to submit the paperwork.

Keller twice said no.

In making his findings, Berchelmann noted that Keller asserted she was referring only to closing the clerk's office, not the court as a whole. He wrote that if Richard's attorneys had called one of the other judges, the attorneys likely would have been able to present the claim.

But Berchelmann also described Keller's decision not to keep the clerk's office open as “highly questionable” and added that “there is valid reason why many in the legal community are not proud of Judge Keller's actions.”

“She should have been more open and helpful about the way in which (Texas Defender Service) could present the lethal injection claim.”

Keller also filed objections to Berchelmann's report through her lawyer, Charles Babcock. Her response said that Berchelmann's findings “completely exonerate” her of all charges but asked that certain findings about her behavior or judgment be disregarded by the commission.

Among them was a finding that Keller “exhibited poor judgment” in failing to notify the judge who was supposed to be in charge of appeals that day.

“Judge Keller is not charged with ‘exhibit(ing) poor judgment;' she is accused of violating written, mandatory standards of behavior,” said her lawyer's objection. It noted that Berchelmann found she hadn't violated any rules or laws and said there was no evidence to support the finding.

Among other points, Keller asked the commission to disregard as irrelevant findings that she “certainly did not exhibit a model of open communication”; that her conduct “was not exemplary of a public servant”; that her “judgment in not keeping the clerk's office open past 5:00 to allow the TDS to file was highly questionable”; and that “there is a valid reason why many in the legal community are not proud of Judge Keller's actions.”

Of the last finding, the response filed by Babcock said in part that Keller “is not accused of having failed some popularity contest among Texas lawyers.”

Source: mysantonio.com, Feb. 18, 2010

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