My thanks to maligned Judge Keller

I'd like to express my gratitude to Texas Court of Criminal Appeals Presiding Judge Sharon Keller.

She has made Texas' supreme court for criminal matters into a better institution.

Unfortunately, she didn't do it by bringing organizational skills to a court that must deal more than any other state court in the nation with the pressures of last-minute appeals in death penalty cases.

But she did it.

The firestorm of criticism that followed her decision not to keep the clerk's office open for a late filing, based on a U.S. Supreme Court decision from earlier in the day, of a man scheduled to be executed an hour after closing time, has produced some improvements.

According to her own testimony and that of other court officials during this week's four-day trial, the court had a protocol for dealing with execution day filings, but it was something of a secret.

For one thing, it wasn't written.

For another, the court staff was not given any formal training on it.

Part of the procedure was the appointment, on a rotating basis, of a single judge to whom all communications regarding the pending execution would be directed. But the name of that judge was not to be disclosed to anyone outside the court, including lawyers for the condemned man.

In Keller's 7 years as the court's chief judge, that was the state of things.

Now, due to the allegations that she violated that procedure by not referring the call seeking to file a late plea for a stay of execution to Judge Cheryl Johnson, the assigned judge for that execution day, everyone knows the procedures.

The court's judges, some of whom were waiting around in expectation of a filing and were angered to learn days later of Keller's actions, agreed to put the protocol in writing. And the protocol has been widely publicized in the controversy.

There is another improvement. Ed Marty, the general counsel who took the request to Keller rather than to Johnson (who testified she would have accepted late pleadings), retired.

His replacement, Sian Schilhab, said she contacts the appropriate attorneys days ahead of the prosecution to make sure they know she is available up until the execution takes place. She said she not only gives them her cell phone number, but forwards the office phone to her cell.

She also says all outside communications not only "clearly go to the assigned judge, but I try to communicate them to all the judges, or at least their staffs."

She said that's not because of the recent controversies, but because "I believe in more communication rather than less."

If Keller had instructed Marty to do that, we wouldn't have had this firestorm.

Keller's attorney argued this week that the defense lawyers had orchestrated media coverage creating the firestorm.

Truth in advertising

The coverage was not always fair and not always accurate, but I'd suggest that Keller herself made the ground fertile for belief that she would violate court policy to coldly reject the last-minute appeal.

When she first ran for the court in 1994 she wrote in the Dallas Morning News that she was "pro-prosecutor." It was truthful advertising.

When DNA evidence showed a man imprisoned for raping a girl who was also murdered did not contribute the semen, she ruled against his appeal, saying he might have worn a condom.

When prosecutors put on an expert in another case who testified a convicted man was a threat to society and therefore should get the death penalty because he was Hispanic, she voted not to require a new sentencing proceeding. The U.S. Supreme Court disagreed.

When a district judge ruled that the evidence "unquestionably established" that a man had been pressured into falsely confessing to raping his stepdaughter, Keller voted with the minority against his release from prison.

I'll say this for her. She is hard working. In the midst of this week's trial, she voted not to hear an appeal in a death penalty case. 6 of the 9 members of the all-Republican court voted the other way.

Source: Commentary, Rick Casey, Houston Chronicle, August 24, 2009