Panel begins deliberating after hearing on Texas criminal appeals court's top judge

The state's highest criminal appeals judge was accused of "gross carelessness" Friday for denying a late-hour appeal for a death row inmate, but Presiding Judge Sharon Keller's attorney said she is the victim of "a pack of lies" designed to force her from the court.

The hearing before the State Commission on Judicial Conduct marked the latest phase in a protracted inquiry against Keller, 56, a former Dallas prosecutor who has served on the Texas Court of Criminal Appeals since 1995.

The judicial panel began deliberating after the half-day hearing, but it was not clear when it will announce a decision. Keller sat at the counsel table during the proceedings and left without talking to reporters.

The panel could decide to dismiss the case, issue a censure or recommend Keller's dismissal from the bench. A removal recommendation would open another phase of the inquiry, requiring the Texas Supreme Court to appoint a panel of seven appellate judges to further review the case.

Rep. Lon Burnam, D-Fort Worth, who has called for Keller's impeachment, observed the proceedings from the back of the chambers. "The woman has no business being on the bench, much less the head of the court," he said.

Prosecutors are challenging a special master's finding that Keller should not be removed or reprimanded for refusing to keep her office open on Sept. 25, 2007, to hear an after-hours appeal from condemned inmate Michael Wayne Richard, who was executed that night.

Richard, convicted of capital murder in the 1986 slaying of a Houston-area woman, was scheduled to be executed after 6 p.m. Sept. 27, 2007. Earlier that day, the U.S. Supreme Court announced that it would hear a legal challenge to lethal injections, a decision that led to a nationwide moratorium on executions.

'Willful failure to comply'

Austin attorney Mike McKetta, serving as the prosecutor for the commission, said Keller violated long-standing execution-day procedures by not notifying a fellow judge assigned to handle late-hour appeals that she had learned that Richard's attorneys were working to prepare a petition.

"She is the public face of criminal justice in the state of Texas," McKetta said. "She has violated a mandatory protocol, a duty of her office in one of the most time-sensitive and irreversible circumstances there can be, moments before a scheduled execution. "

Keller's actions, McKetta said, constituted "a willful failure to comply" with the duties of office.

But Houston lawyer Charles "Chip" Babcock, representing Keller, said she acted properly in handling the situation and urged the commission to drop the charges. Babcock contended that allegations have been stoked in the press by death-penalty opponents and others who are trying to "drive her off the bench."

"If you approve of these tactics, no judge is going to be safe," he asserted.

Babcock asked the commission to accept the findings of San Antonio Judge David A. Berchelmann Jr., the special master during a four-day proceeding in August 2009. Berchelmann faulted Keller for questionable judgment and poor communication but said she "did not violate any written or unwritten rules or laws."

Source: Fort Worth Star-Telegram, June 21, 2010

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