Keller should be removed for "Her actions also brought the integrity of the Texas judiciary and of her court in just a tipof the iceburg dead ahead...

Wednesday, October 10, 2007
Complaint to be filed against Judge Sharon Keller with Commission on Judicial Conduct: With Michael Richard's death, did she go too far?

All I can say is it's about time. A reader emails to report:

there will be a press conference at 1:30 PM Wednesday, Oct 10, in front of the Texas Court of Criminal Appeals to announce the filing of a complaint with the State Commission on Judicial Conduct against Sharon Keller.

Jim Harrington, director of the Texas Civil Rights Project and Scott Cobb, of Texas Moratorium Network, will be present, along with others.

This couldn't be more justified after the stunt Keller pulled recently, refusing to extend the deadline on a death penalty appeal when the defendant's lawyers' computer malfunctioned. Her fellow CCA judges didn't know about the decision, including the judge assigned to evaluate the case who stayed late after work on the assumption the appeal would be coming. This wasn't just a petty decision by Keller, it was an outright abuse of power in a life or death decision, usurping the rightful authority of both her colleagues and the US Supreme Court. It was not an "incompetent" decision, it was a nasty and mean-spirited one.

The "Queen of Mean" deserves the formal complaint, and if Texas judges are to retain public confidence and credibility in the legal community, the Commission should sustain the complaint and sanction Judge Keller harshly. If I had my druthers, I think she should be removed from the bench because of her consistently bad record over the years. According to the Frequently Asked Questions page on on the Commission's website, the Commission may issue sanctions on its own, but it may also:

request that the Supreme Court of Texas suspend a judge under the provisions of Rule 15(b) of the Procedural Rules for Removal of Retirement of Judges. Rule 15(b) states, Upon filing with the Commission of a sworn complaint charging a person holding such office with willful or persistent violation of rules promulgated by the Supreme Court of Texas, incompetence in performing the duties of office, willful violation of the Code of Judicial Conduct, or willful and persistent conduct that is clearly inconsistent with the proper performance of his duties or cases public discredit upon the judiciary or the administration of justice, the Commission, after giving the person notice and an opportunity to appear and be heard before the Commission (under the provisions of Rule 6), may recommend to the Supreme Court the suspension of such person from office.

That course of action sounds like exactly what's needed to restore credibility and integrity to Texas' highest criminal court. Keller is not up for re-election until 2012, but Texans shouldn't have to wait that long to remove this judicial cancer from our midst.

MORE: See initial coverage from the Houston Chronicle, featuring Judge Keller pointing the finger at everyone but the one person who made the decision that ended Michael Richard's life prematurely - herself. Reported the Chronicle:

Twenty lawyers from across Texas today filed a formal judicial conduct complaint against Texas Court of Criminal Appeals Presiding Judge Sharon Keller, accusing her of violating the constitutional due process of a condemned man.

The complaint to the State Commission on Judicial Conduct says Keller improperly cut off appeals that led to the execution of Michael Richard on Sept. 25 despite the fact the U.S. Supreme Court earlier in the day had accepted a case on the propriety of lethal injection, which had direct implications for Richard's execution.

"Judge Keller's actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution," the complaint states. "Her actions also brought the integrity of the Texas judiciary and of her court into disrepute and was a source of scandal to the citizens of the state."

Those lawyers signing the complaint included former State Bar President Broadus Spivey, Houston criminal defense lawyer Dick DeGuerin, University of Houston law professor Mike Olivas, former appellate Judge Michol O'Connor, state Rep. Harold Dutton, D-Houston, and former Nueces County Attorney Mike Westergren.

UPDATE: The full text of the complaint is now available here.

Posted by Gritsforbreakfast at 12:46 PM

Labels: CCA, Death penalty, Judiciary

7 comments:

Anonymous said...

The Houston Chronicle has another quote from Judge Cheryl Johnson in their story covering today's filing.

Judge Cheryl Johnson was the appeals court jurist in charge of Richard's case. She said she never heard anything about the clerk's office closing off the appeal until the following day.

"I wasn't consulted," Johnson said. "I have been here almost nine years. My understanding was that on a death case we were here up until the time of the execution and we would take filings that came in up until 6 o'clock and the execution is underway."

Johnson said it is not a question of whether Richard is guilty but did he have the right to appeal."

End of Chronicle excerpt.

The Code of Judicial Conduct says that, "a judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action."

From the way, Judge Johnson has been quoted in the media, it sounds like she believes Keller's behavior was innappropriate at the least. If she also believes that it violates the Code of Judicial Conduct, then she is ethically obligated to take action.
10/10/2007 03:34:00 PM
Anonymous said...

In some of the earlier articles on this case, I remember reading several ethics scholars who stated that Keller's refusal to extend the hours of operation for the clerk did not violate any specific ethical rule. The Commission cannot sanction a judge just for doing something they don't like, it has to violate a canon of their code. Anyone know what canon the complaint is going to allege to have been violated?
10/10/2007 03:54:00 PM
Anonymous said...

While we're at it, maybe the Texas Defender Service should be grieved. DP lawyers love to play this brinksmanship game of waiting until the last minute to file their habeas petitions, knowing their chances of getting a stay will be increased if the other side doesn't get to respond.

Sure, it's a nice advantage, but it's a gamble. You don't know if something bad is going to happen at the last minute that might prevent your incredible, Brandeis-like piece of legal gold from saving your client's neck.

Yeah, I know the SCt took cert in the Kentucky case that day, but it's not like this is some novel legal theory. It's been batted around for several years nationally and in Texas for at least the last couple of years.

So waiting until 3 pm the day your client is going to die doesn't seem like the greatest use of time management.
10/10/2007 04:09:00 PM
PersianCowboy said...

To close at 5 PM and refuse to accept an appeal by a person about to be executed is a violation of judicial responsibility. When a person is about to be executed, our state's highest criminal court needs to remain open for business. Keller should resign or be impeached and removed from office for her unethical conduct. This is not the first time that Keller has behaved like a buffoon. According to Tom Price, one of the other conservative judges on the Texas Court of Criminal Appeals, as far back as 2001 she made Texas' highest criminal appeals court "a national laughingstock." As long as Keller is in office, the people of Texas can not be sure that justice is being done with integrity.
10/11/2007 01:59:00 AM
Michael said...

This is one reason I always sign my name to comments. anonymous (10/10. 3:54 p.m.) says there are "some other articles" where "several ethics scholars" state that Judge Keller "did not violate any specific rule". Could you be a little more obtuse, please? Maybe instead of hearsay within hearsay, you could try to embed hearsay within hearsay within hearsay. What ethics scholars? I believe Newt Gingrich considers himself an ethics scholar. In light of the Complaint's citation to four specific Canons of the Code of Judicial Conduct, I'll take the word of the signatories -- including a past State Bar of Texas President, as well as the most visible criminal attorney in Texas, Dick DeGuerin.

By the way, can we dispense with referring to "The Honorable Sharon Keller" now?
10/11/2007 10:26:00 AM
PJ or said...

I know this is going to seem like a long statement but if you're going to impeach a judge you'd better know you're state's rules!

Defendant's in this case under color of law and who have caused the constitutional deprivation which was their policy and procedure to do so are not immune, not even under qualified immunity.
JUDICIAL IMMUNITY TO BAD BEHAVIOR:
Therefore the JUDGE IS NOT IMMUNE TO ARREST BECAUSE THE ONLY PERSONS WHO HAVE LIMITED IMMUNITY is Senators and Representatives, coming and going and while in session, and that is limited. If they commit Treason, Felony and Breach of the Peace, they maybe arrested in session.

a. TITLE 28 > PART I > CHAPTER 21 > § 454 Practice of law by justices and judges
Any justice or judge appointed under the authority of the United States who engages in the practice of law is guilty of a high misdemeanor.

Constitution Section. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other place.

h. TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE PART I--ORGANIZATION OF COURTS CHAPTER 21--GENERAL PROVISIONS APPLICABLE TO COURTS AND JUDGES Sec. 453. Oaths of justices and judges Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: ``I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.''

i. TITLE 28 > PART I > CHAPTER 17 > § 372. Retirement for disability; substitute judge on failure to retire (a) Any justice or judge of the United States appointed to hold office during good behavior who becomes permanently disabled from performing his duties may retire from regular active service, and the President shall, by and with the advice and consent of the Senate, appoint a successor. Any justice or judge of the United States desiring to retire under this section shall certify to the President his disability in writing.

TEXAS CONSTITUTION ON IMPEACHMENT:
Article 15 - IMPEACHMENT
Section 4 - JUDGMENT; INDICTMENT, TRIAL, AND PUNISHMENT
Judgment in cases of impeachment shall extend only to removal from office, and disqualification from holding any office of honor, trust or profit under this State. A party convicted on impeachment shall also be subject to indictment, trial and punishment according to law.


§ 665.002. INDIVIDUALS WHO MAY BE IMPEACHED. An individual may be removed from an office or a position by impeachment in the manner provided by the constitution and this chapter if the individual is:
(1) a state officer;
(2) a head of a state department or state institution; or
(3) a member, regent, trustee, or commissioner having control or management of a state institution or enterprise.

§ 665.052. CAUSES FOR REMOVAL. (a) An individual may be removed from office by address for:
(1) Willful neglect of duty;
(2) Incompetence;
(3) Habitual drunkenness;
(4) Oppression in office;
(5) Breach of trust; or
(6) any other reasonable cause that is not a sufficient ground for impeachment.
(b) In this section, "incompetence" means:
(1) Gross ignorance of official duties;
(2) Gross carelessness in the discharge of official duties; or
(3) Inability or unfitness to discharge promptly and properly official duties because of a serious physical or mental defect that did not exist at the time of the officer's election.


TEXAS CHAPTER 39. ABUSE OF OFFICE § 39.01. DEFINITIONS.
(1) "Law relating to a public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly:
(A) imposes a duty on the public servant; or
(B) governs the conduct of the public servant.
(2) "Misuse" means to deal with property contrary to:
(A) an agreement under which the public servant holds the property;
(B) a contract of employment or oath of office of a public servant;
(C) a law, including provisions of the General Appropriations Act specifically relating to government property, that prescribes the manner of custody or disposition of the property; or
(D) a limited purpose for which the property is delivered or received.

TEXAS § 39.02. ABUSE OF OFFICIAL CAPACITY.
(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant's office or employment; or
(2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor.
(c) An offense under Subsection (a)(2) is:
(1) a Class C misdemeanor if the value of the use of the thing misused is less than $20;
(2) a Class B misdemeanor if the value of the use of the thing misused is $20 or more but less than $500 ;
(3) a Class A misdemeanor if the value of the use of the thing misused is $500 or more but less than $1,500;
(4) a state jail felony if the value of the use of the thing misused is $1,500 or more but less than $20,000;
(5) a felony of the third degree if the value of the use of the thing misused is $20,000 or more but less than $100,000;
(6) a felony of the second degree if the value of the use of the thing misused is $100,000 or more but less than $200,000; or
(7) a felony of the first degree if the value of the use of the thing misused is $200,000 or more.
(d) A discount or award given for travel, such as frequent flyer miles, rental car or hotel discounts, or food coupons, are not things of value belonging to the government for purposes of this section due to the administrative difficulty and cost involved in recapturing the discount or award for a governmental entity.

ANSWER TO IMMUNITY

This means ALL JUDGES! The judges, both of the supreme and inferior courts, shall hold their offices during good behavior. The judicial power shall extend to all cases, in law and equity, arising under this Constitution. Impeachment is the ONLY crime that maybe charged without a Trial by JURY!
10/11/2007 09:24:00 PM
Anonymous said...

I practice appellate law, mostly civil cases. I've been involved in dozen of "emergency" matters over the years. Every time a computer glitch, traffic or anything else has contributed to a brief getting to the courthouse after 5 p.m. the court has accomodated us -- and no one was about to die, with his procedural rights irretrievably lost.

If Texas courts can routinely offer relief in matters of money or family disputes, for Keller to not do so in a matter of death is despicable.
10/11/2007 10:49:00 PM

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