Texas Judge May Lose Job Over Appeal in Death Case

HOUSTON — The Texas Commission on Judicial Conduct took the highly unusual step Thursday of starting proceedings against the presiding judge of the state’s highest criminal court because, two years ago, she closed her office promptly at 5 p.m. when she knew a death row inmate was about to file an appeal.

The action could result in the judge, Sharon Keller, being removed from office after a hearing before a special magistrate. Judge Keller, a Republican first elected to the Court of Criminal Appeals in 1994, did not comment Thursday on the commission’s decision. Her lawyer said she “absolutely and totally” denied the accusations, The Associated Press reported.

In the past, the commission members, who are appointed by the governor, have generally gone after judges for blatant misconduct and criminal offenses. They have seldom tried to censure a judge for allegedly denying someone access to the courts. “I have never seen anything like this before in 15 or more years of death penalty lawyering,” said Jim Marcus, an adjunct law professor at the University of Texas at Austin. “But I have never seen a court closed like this either. This whole incident has been unusual.”

The inmate, Michael Richard, was executed the evening of Sept. 25, 2007, as his lawyers were trying to submit a last-minute appeal. The appeal was based on a decision that morning by the United States Supreme Court to hear arguments on whether lethal injection constituted cruel and unusual punishment.

Mr. Richard’s lawyers called Judge Keller’s chambers and asked her clerk for an extra 20 minutes past the 5 p.m. closing time to file the papers because of a computer breakdown, according to the commission’s report.

Judge Keller had gone home early to meet a repairman. When the court’s general counsel called her to ask if she would keep the court open to accept the appeal, she said no. “Judge Keller knew that it had been common in the past to receive late pleadings on execution days after the clerk’s office closed,” the commission’s inquiry found, “and she knew that the execution day procedures called for the designated judge to remain available after hours to receive last-minute communications regarding the scheduled execution.”

Mr. Richard was given a lethal injection at 9:30 p.m. Two days later, the United States Supreme Court granted a stay to another condemned man in Texas on the same grounds that Mr. Richard’s lawyers had tried to use.

Judge Keller’s lawyer, Chip Babcock, said lawyers handling the appeal for Mr. Richard should have known to go to the judge who was in charge of the execution, according to the A.P report. “When executions were normally conducted at midnight, that didn’t mean there was nobody around,” Mr. Babcock said. “There was a judge sitting right there at the court.”

Judge Keller’s decision drew widespread criticism from lawyers in Texas and across the country. More than 20 lawyers filed the original complaint against her before the commission, alleging that she had violated Mr. Richard’s rights.

This week, State Representative Lon Burnam, a Fort Worth Democrat, introduced a bill to impeach Judge Keller, accusing her of “gross neglect of duty” and a “willful disregard for human life.”

Mr. Richard had been convicted of a 1986 rape and fatal shooting of a mother of seven children. The commission’s decision on Thursday is roughly analogous to a grand jury’s handing up an indictment. It sets in motion a trial before a special master. Judge Keller will have the right to counsel, to confront her accusers, to introduce evidence and to cross-examine witnesses. In the end, the master can chose to censure her or remove her from office.

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Source: The New York Times, Feb. 20, 2009