Sharon Keller’s trial will be conducted in the courtroom of David Berchelmann, Jr, presiding judge of the 37th District Court, 100 Dolorosa, San Antonio, Texas 78205. Berchelmann has been appointed “special master” by the Texas Supreme Court to conduct the hearing on the charges against Keller.

The clerk for Judge Berchelmann, Virginia Rainey, said that the room will hold about 60 people.

The clerk’s office phone number is 210 335-2515, email Clerk37@Bexar.org.

Start times for the Trial August 17 – 21

Monday – Keller Trial begins at 9:30 am

Note: Courtroom will open at 8:00 am – other matters will be heard from 8:30-9:30 am. (The clerk she said that you can bring in a laptop if it is quiet, so be sure to turn of the sound so it doesn’t make any surprising noises. The clerk does not think there is WIFI in the courtroom.)

Tuesday – Keller trial begins 10:00 or possibly 10:15 am

Wednesday – Keller trial begins 9:30 am

Thursday – Keller trial begins 9:30 or possibly 10:30 am (depending on whether a scheduled, unrelated hearing goes forward)

Friday – Keller trial begins 10:30 am

The New York Times has an interesting article (Judges’ Dissents for Death Row Inmates Are Rising) on some original research they conducted that found that some judges in federal appeals courts are writing more and more passionately written dissents in death penalty cases.

Excerpt:

Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.

Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.

In April, Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

Judge Stephen Reinhardt of the Ninth Circuit, a critic of capital punishment, took on the constitutionality of the 1996 death penalty act itself in a dissent in the case of Andrew C. Crater, who had been convicted of taking part in a robbery and shooting spree that killed a Sacramento musician, James Pantages. Judge Reinhardt, appointed by President Jimmy Carter, wrote in 2007 that the act made “a mockery of the careful boundaries between Congress and the courts that our Constitution’s framers believed so essential to the prevention of tyranny.”

For the entire article click here.

Sharon Keller submitted a motion on July 31, 2009 to the judge acting as special master in her upcoming trial arguing that she has a “property right” to her position as Presiding Judge of the Texas Court of Criminal Appeals and therefore she should not be deprived of that property except by the higher standard of “clear and convincing standard of proof” instead of the standard provided for in the rules of the State Commission on Judicial Conduct, which require only the lower standard of preponderance of the evidence.

“Application of the preponderance of the evidence standard would not be sufficient to ensure that any deprivation of Respondent’s [Keller’s] property interest in her position as Presiding Judge of the Court of Criminal Appeals would not be arbitrary,” Keller alleges in the motion.

Keller claims she has a “legitimate claim to entitlement to her position as Presiding Judge of the CCA”.

Michael Richard had a legitimate claim not to be deprived of life without due process of law. He had a legitimate claim not to be told “we close at 5” by the presiding judge of the Texas Court of Criminal Appeals on the day of his execution.

Sharon Keller’s Motion for Application of Proper Evidentiary Standard –

The Dallas Morning News has a Q&A with State Rep Robert Miklos, the first-term legislator and chair of the subcommittee on capital punishment in the last session of the Texas Legislature. No big surprises in the interview. Miklos is a former prosecutor. He voted against HB 2267, the bill that would have ended the death penalty for people who do not kill anyone but are convicted under the Law of Parties. He opposes abolishing the death penalty, but he says the process must be fair, so maybe one day he will push for a moratorium on executions and a study commission.

From the article:

What did you learn that surprised you about the way the death penalty is applied in Texas?

I am pretty familiar with how the death penalty is applied in Texas, both from a legal and practical standard, but what I was most surprised about was the previous lack of discussion on the subject by lawmakers. I support the use of the death penalty in Texas, but I believe with the recent exonerations in Dallas County, and across Texas, that we need to make sure of what we are doing. The process must be fair, and the accused must be represented by competent counsel. That’s why I joint-authored HB 2058, which relates to the standards for attorneys representing indigent clients in capital cases.

You began the session as a supporter of capital punishment because of deterrent value. Did your position change as you heard more about Texas’ system during the session?

No. I believe that our peace officers and our children deserve the added protection that having the death penalty as a potential punishment provides. While you can’t legislate away crime, I continue to believe that having the death penalty as an option does deter certain criminal acts.

Did any witness impress you with particularly compelling or eye-opening testimony?

Yes. Several family members of murder victims impressed me with the level of grief, and forgiveness to the criminal, that they displayed. These are real families destroyed forever by terrible acts, and they all deserve thoughtful consideration of our criminal procedures, not bluster and bravado.

Most bills of any kind die in a session of the Legislature. Is there one you most regret didn’t make it after coming out of Criminal Jurisprudence?

Yes. SB 117. This bill would have required police departments to adopt certain standard procedures regarding the identification of suspects in a criminal case. Unintentionally faulty identification of suspects by witnesses, understandably shaken by the recent impact of the crime, has been the basis for many of the false convictions in Texas. I think it would surprise many people how common-sense these measures would have been, how fair and flexible for police departments and what procedures they would have replaced.

How would you describe the politics of Texas’ death penalty to a non-Texan?

Texans overwhelmingly support the death penalty and believe in its value as an option in the criminal justice system. Like any political issue in Texas, the extremes on both sides of the political spectrum attempt to hijack the debate by demanding absolute obedience to certain ideological absolutes.

Some death penalty opponents say attitudes are shifting and that Texas may someday join the states that don’t apply the death penalty. What is your assessment?

I don’t think that Texans will support abolishing the death penalty anytime soon. I think what may happen, though, is that the cost of a death penalty case may become so expensive that in these tough economic times, many counties may forgo seeking the death penalty because they simply can’t afford it.

Last night we had the first planning meeting for this year’s anti-death penalty march. The march is sponsored by several anti-death penalty groups working together as a coalition. The first decision we made was to name the event the “10th Annual March to Abolish the Death Penalty”. We also decided to hold the event on October 24 at the Capitol in Austin and to march down Congress Avenue and then return to the Capitol.

Watch more clips of the meeting on Justin.tv

Here is some recorded video of the first meeting for the 10th Annual March to Abolish the Death Penalty. This was a test of the live streaming system on justin.tv. It worked fairly well, except the sound is a little low, so we need a better mic next time. We plan to have a live stream of the speakers at the actual march on Oct 24. There were about 15 people at the meeting, some of them were behind the camera, so they aren’t in the video.