HR 480, the Resolution Creating a Special Committee on Impeachment to consider the impeachment of Judge Sharon Keller of the Court of Criminal Appeals for gross neglect of duty and conducting her official duties with willful disregard for human life was referred today to the House Committee on Judiciary & Civil Jurisprudence.

House Committee on Judiciary & Civil Jurisprudence (C330)
Clerk: Jennifer Welch
Legislature: 81(R) – 2009
Phone: (512) 463-0790
Room: EXT E2.120

Chair:
Rep. Todd Hunter
Vice Chair:
Rep. Bryan Hughes
Members:
Rep. Roberto R. Alonzo
Rep. Dan Branch
Rep. Will Hartnett
Rep. Jim Jackson
Rep. David Leibowitz
Rep. Tryon D. Lewis
Rep. Jerry Madden
Rep. Armando Martinez
Rep. Beverly Woolley

Media Advisory

For immediate release: February 22, 2009

Contact: Scott Cobb, President, Texas Moratorium Network, 512-552-4743

Advocates to Hold Press Conference Tuesday, Feb 24, on Ending Death Penalty Sentences Under Texas’ Law of Parties

A press conference will be held at the Texas Capitol in the House Speaker’s Committee Room (2W.6) on Tuesday, February 24 at 12:30 PM by advocates for an end to the death penalty for people convicted under Texas’ Law of Parties. State Rep. Harold Dutton of Houston has filed HB 304, which would prohibit prosecutors from seeking the death penalty in the future under the Law of Parties.

The Law of Parties can currently be used to sentence people to death even though they did not actually kill or intend anyone to be killed. Speakers at the press conference will include representatives of Kenneth Foster, jr and Jeff Wood, both of whom were sentenced to death under the Law of Parties even though neither of them killed anyone. Foster’s death sentence was commuted to life in prison on August 30, 2007 by Governor Perry. Wood remains on death row after receiving a last-minute stay of execution from a federal judge on August 21, 2008, so that his mental health could be evaluated. In both the Foster and Wood cases, the actual killers have already been executed by Texas.

What: Press Conference on Ending Death Penalty Sentences Under the Law of Parties
Where: The Texas Capitol in the House Speaker’s Committee Room, 2W.6
When: 12:30 PM on Tuesday, February 24
Speakers include Rep Harold Dutton and family members of Kenneth Foster and Jeff Wood, including Lawrence Foster and Kenneth Foster Sr.

“No one should be put to death for a murder committed by someone else. The death penalty should certainly not be used for people who do not actually kill anyone. While most people in Texas may still support the death penalty, I am quite sure that even most people who support the death penalty only want it used for the worst of the worst murderers and not for people who do not actually kill anyone. Dutton’s bill would eliminate the death penalty sentencing option for people convicted under the Law of Parties, but it would still allow people who play lesser roles in a case to be convicted and sentenced to prison under the Law of Parties,” said Scott Cobb of Texas Moratorium Network.

“The Texas Law of Parties gives prosecutors far too much discretion in seeking the death penalty by expanding it to those who did not even commit a murder. As we have learned in cases like Kenneth Foster and Jeff Wood, the law unfairly effects those who were in the wrong place at the wrong time or on the losing end of a plea deal. The Texas Legislature should do the right thing and pass Representative Dutton’s bill,” said Bryan McCann of the Campaign to End the Death Penalty and the Save Kenneth Foster Campaign.

Sponsored by Texas Moratorium Network, Campaign to End the Death Penalty, Texas Death Penalty Abolition Movement, and Texas Students Against the Death Penalty.

For more information on the case of Kenneth Foster, visit www.freekenneth.com.

For more information on the case of visit www.savejeffwood.com.

The Austin American-Statesman Editorial Board says in Sunday’s paper that Sharon Keller should not resign, she should be removed after first standing trial because “at trial, the sordid events of Sept. 25 would be aired before Texas and the world. Keller’s cold-blooded and process-centered approach to justice would be on vivid display. A trial would expose Keller’s heartless missteps to a fascinated world.”

That’s not a bad idea. Keller has until March 5 to answer the charges against her made by the State Commission on Judicial Conduct. Her answer could be “I resign”, but maybe it would be better if she stood trial first.

More from the Statesman:

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, is scheduled to stand trial for her egregious decision to refuse an after-hours appeal from an inmate scheduled to die that evening.

And rightly so. Keller’s decision — made by her alone — was grossly insensitive, unjust and discredited her court in the eyes of the world. The inmate, Michael Richard, was executed Sept. 25, 2007, a few hours after Keller refused his appeal without informing the other judges, including the one assigned to Richard’s case.

Since then, there have been numerous calls for Keller to resign, and a resolution has been introduced in the state Legislature to start impeachment proceedings against her. Last week, the State Commission on Judicial Conduct charged Keller with five counts of violating her duty and discrediting the court in the Richard case.

Facing such withering criticism, Keller, 55, may retire or resign rather than stand trial. She has until March 5 to answer the charges from the commission, and her attorney, Chip Babcock, has said she could win the case on the facts.

Though Keller should be removed from a court widely ridiculed for its heartless approach to justice, a trial is a better way to accomplish that than resignation. At trial, the sordid events of Sept. 25 would be aired before Texas and the world. Keller’s cold-blooded and process-centered approach to justice would be on vivid display.

The all-Republican Court of Criminal Appeals is this state’s court of last resort in criminal cases, and its reputation for rubber-stamping convictions was well-established before Richard’s appeal was rejected. Putting the most important criminal judge in Texas on trial for misconduct is an opportunity to expose the court’s long record of callous and reckless disregard for defendants’ rights.

The allegations against Keller in the judicial conduct commission’s findings are devastating. She and the other judges knew Richard’s attorneys likely would appeal his sentence after the U.S. Supreme Court had said that morning it would hear arguments that death by lethal injection is unconstitutional. Richard was set to die by lethal injection that evening.

Judge Cheryl Johnson had been assigned to the Richard case and was ready to receive an appeal. But his attorneys had computer problems and asked the court’s general counsel, Edward Marty, if they could file their petition a little late.

Keller was at home when Marty called to ask her if the court clerk’s office could remain open after 5 p.m. to receive Richard’s petition. Keller said no. She now says that she told Marty the clerk’s office, not the court, would close at 5 p.m. As if that made a difference.

Keller’s defense is a distinction without a difference. And it perfectly illustrates her focus on process over justice. Keller did not tell the other judges that she refused to accept the appeal nor did she refer Richard’s plea to Judge Johnson. Every one of those missteps and others would be intensely examined in a trial and should result in her removal from office.

This issue has never been about Richard’s guilt or innocence, but about the lack of common decency in refusing his appeal because it would arrive after 5 p.m. Keller should answer for her actions in a public trial.

Rick Casey of the Houston Chronicle explains the process by which the State Commission on Judicial Conduct will proceed in its case charging Sharon Keller with misconduct, incompetence and bringing discredit on the Texas judiciary. The Commission has already said that the process could last 6-18 months. During that time Keller will continue to sit on the bench and continue to disgrace the Texas justice system.

In order to suspend Keller from office, the Texas House should vote to impeach her. According to the Texas Constitution, such a vote would immediately suspend her from office until the Senate holds a trial.

From Casey’s article

Considerable work has already been done. The commission, which is made up of six judges from a municipal judge to an appellate judge, two lawyers and five members of the public, had its first of three closed-door hearings on the case last June, after a preliminary investigation by its staff. Keller herself appeared under oath.

“She has been very cooperative,” said Commission Executive Director Seana Willing.
The commission also held closed-door meetings on the matter in August and October. They heard from others involved in the matter, including some of Keller’s colleagues on the court.

Based on the evidence it heard during these “informal hearings,” the court could have gone so far as to publicly reprimand Keller. Instead, at least seven members voted in December to initiate a process that could lead to Keller’s removal. Willing cautioned that the vote doesn’t signal that the commission thinks Keller should be removed. It may be that they seek more information that may result from the more adversarial process to come.

It will begin with the appointment of a “special master” by Chief Justice Wallace Jefferson of the state Supreme Court. The master could be from a district court or an intermediate court.

That judge will conduct in public what will look very much like a civil trial, with John McKetta III, an Austin lawyer who will serve without pay as the lead “prosecutor” for the commission, and a lawyer for Keller putting on witnesses for examination and cross-examination.

The special master will then issue a “finding of facts,” but will not decide Keller’s fate. Instead his or her findings will be returned to the commission, which will hear from both sides and possibly take new evidence in a public hearing, and then retire to decide whether to recommend Keller’s removal. That’s right: recommend.
A judge, it seems, must be judged by judges.

So Chief Justice Jefferson will pick by lot a seven-member “review tribunal” from a pool consisting of one member chosen by each of the state’s 14 intermediate courts of appeal. The first picked will be chairman.

The tribunal will hold yet another hearing and possibly take more new evidence, then decide whether to accept the commission’s recommendation or impose a tougher or more lenient sanction.

If Keller doesn’t like what these judges decide she can appeal to the state Supreme Court — if her lawyers get their filings in on time.

Lon Burnam plans to continue his push to impeach Sharon Keller, reports the Fort Worth Star Telegram in “Impeachment push from Burnam continues as ethics panel awaits response from embattled judge“.

The House should definitely impeach Keller, because if she is impeached she will be automatically suspended from office. The process by the Commission on Judicial Conduct could take up to 18 months and includes no provision to suspend her from office. She will be suspended only after the House votes for impeachment.

State Rep. Lon Burnam, D-Fort Worth, said Friday that he will press ahead with efforts to impeach Judge Sharon Keller while a judicial ethics commission begins an inquiry against Keller that could take more than a year to complete.

The State Commission on Judicial Conduct announced plans Thursday to convene trial-like hearings against Keller, presiding judge of the Texas Court of Criminal Appeals, just days after Burnam introduced a resolution to begin impeachment proceedings in the Legislature. Both actions stem from Keller’s refusal to keep her office open after hours to allow a last-minute appeal from a Death Row inmate who was executed several hours later.

A legislative impeachment proceeding and the commission’s inquiry could ultimately lead to the same result: her removal from the bench. But Burnam, in a telephone interview, reiterated dissatisfaction with the pace of the commission investigation and said he will pursue his impeachment resolution.

“That’s a way to keep pressure on the commission to do its job,” Burnam said, likening the judicial panel to a fox “guarding the henhouse.”

Burnam also called on Keller to step down. The judge’s office declined to comment and referred questions to her Houston attorney, who had not responded to calls by late Friday afternoon. Keller has 15 days to answer the charges.

“To my way of thinking, if she had any integrity at all, in two weeks, she’d resign,” Burnam said. “She aborted due process, and the action resulted in the untimely execution of a human being. There was a general sense of outrage when the incident occurred.”