The San Antonio Express News has an editorial in Saturday’s paper saying “the misconduct charges against Texas Court of Criminal Appeals President Judge Sharon Keller are a welcome development.”

While Keller’s actions in the Richard case violate our sense of justice, she deserves her day in court on the charges.

Regardless of the outcome, the State Commission on Judicial Conduct deserves kudos for having the courage to act in this situation. Public confidence in the system’s ability to police itself should be bolstered by the commission’s action.

In a post on the Texas Moratorium Network blog on October 3, 2007, we said “Texas Court of Criminal Appeals Presiding Judge Sharon Keller should resign or be impeached and removed from office for her conduct regarding the execution of Michael Richard. As long as Keller is in office, the people of Texas can not be sure that justice is being done with integrity”.

We filed a complaint against Keller (pdf) with the State Commission on Judicial Conduct that was signed by about 1900 people. We delivered a copy of the complaint to the Texas Court of Criminal Appeals (video). We held a protest in front of her house (video). We revised our complaint to the Commission by sending them a copy of the Execution Day Procedures, which we obtained from Keller through a Public Information Request. She had first sent that document to R.G. Ratcliffe of the Houston Chronicle, but we requested she send us a copy so we could send it to the Commission. We went to the Legislature to ask legislators to sign on to a complaint or to file their own. State Rep Dutton, Olivo, Farrar and Coleman all signed one of the complaints or filed their own. We went back to the Legislature in December 2008 to ask Lon Burmam to file an impeachment resolution.

Now, the State Commission has officially charged Keller with misconduct that “casts public discredit on the judiciary or the administration of justice” and with “incompetence in the performance of duties of office.”

We expect that over the next week or so, there will be several editorials by Texas newspapers joining our call for Keller to resign.

How long before Keller is forced out by resignation, impeachment or removal by the process set forth in the Notice of Formal Proceedings by the State Commission on Judicial Conduct? The sooner, the better. 

Rep Jessica Farrar, who has filed a bill to abolish the death penalty, has been elected to lead Democrats in the Texas House. Her abolition bill is HB 682. She first filed an abolition bill in 2007, when she became the second state representative in recent years to file an abolition bill. Rep Harald Dutton has filed an abolition bill each session since 2003. His bill this year is HB 297.

In 2007 Texas Moratorium Network was one of several groups that filed a judicial complaint against Sharon Keller. Our complaint was co-signed by almost 1900 people. In 2007, we also talked to several legislators who also subsequently signed on to a complaint or filed their own complaints against Keller: Reps Dutton, Olivo, Coleman, Farrar and Burnam.

Last December, TMN approached Lon Burnam and asked him to file a resolution to impeach Keller. Today, the New York Times wrote an editorial supporting Burnam’s resolution.

Today, the State Commission on Judicial Conduct formally charged Keller with misconduct.

State Commission on Judicial Conduct Notice of Formal Proceedings

Scott Cobb and all Complainants who signed on:

Please be advised that on December 2-4, 2008, following three informal hearings that took place before it on June 18-20, 2008, August 13-15, 2008, and October 15-17, 2008, the Commission voted to initiate formal proceedings against the judge who was the subject of your complaint. This process involves a public trial before a Special Master appointed by the Texas Supreme Court, after which findings of fact will be presented to the Commission. You will be notified in writing of the date, time and location of this trial. Based on the Report from the Special Master, the Commission may vote to dismiss the case, issue a public censure, or recommend to the Supreme Court that the judge be removed from office.

In the event that removal is recommended, a seven-member Review Tribunal of appellate justices, also appointed by the Texas Supreme Court, will review the record of the public trial and the hearing before the Commission to determine if the judge should be removed from office. The Review Tribunal could also dismiss the case or issue a public censure against the judge. Be advised that this process is lengthy and could take anywhere from six (6) to eighteen (18) months or more to complete.

Thank you for your continued patience and cooperation as we continue with this process. We apologize for any inconvenience caused by the delay in resolving the complaint, as well as for our failure to communicate with you more often and in more detail regarding the status of the investigation. Due to confidentiality rules, we were greatly restricted as to what information we could provide and were concerned that any information we provided would be leaked to the media.

We appreciate that this case is very important to you. Like all cases filed with our agency, this matter was handled carefully and thoroughly investigated. Because the factual allegations and legal issues presented proved to be more complicated than most cases presented to the Commission, it simply required more time to resolve. In addition, please keep in mind that our Commission holds hearings only six (6) times per year, and handles hundreds of cases at each of those meetings. The thirteen volunteers who serve on the Commission take their responsibilities seriously and provide each case and decision the consideration it deserves. The members did not arrive at their decision in this matter lightly or prematurely.

We would also point out that we have a small, but dedicated staff that includes five lawyers and three investigators, who handle over 1,000 cases each year. Because of the significance of this matter, the investigation and presentation of the case was handled exclusively by the agency’s Executive Director and the Chief Investigator. It should be clear from a review of the Notice of Formal Proceedings how much time and effort has gone into this case so far.

On a final note, we are honored to have the services of John J. “Mike” McKetta, III, Michelle Alcala, and their firm, Graves Dougherty Hearon & Moody, P.C., supporting the Commission as Special Counsel in this matter.

Let us know if you have any questions or concerns regarding this process.

Seana Willing

Executive Director

State Commission on Judicial Conduct

February 19, 2009
New York Times
EDITORIAL
Investigating Judge Keller

Sharon Keller, a Texas appellate court judge, made headlines in 2007 when she was reported to have ordered the court clerk’s office to close promptly at 5 p.m., preventing a death-row inmate from filing an emergency appeal. The inmate was executed. A Texas legislator is now trying to impeach Judge Keller for dereliction of duty in that case. A legislative inquiry is long overdue.

On Sept. 25, 2007, lawyers for Michael Richard were at work on a motion to stay their client’s execution. Earlier that day, the United States Supreme Court announced that it would consider the constitutionality of lethal injection. The lawyers were seeking to have Mr. Richard’s execution, which was to be by lethal injection, put off until the Supreme Court issued its ruling.

According to press accounts, Mr. Richard’s lawyers called the court late that afternoon to say they were having computer problems and requested that the clerk’s office stay open 20 minutes past its usual closing time. According to these accounts, Judge Keller denied the request. Mr. Richard was put to death that evening.

Judge Keller has been quoted saying that Mr. Richard’s lawyers did not give a reason for wanting the delay, and that she simply stated that the court closes at 5 p.m.

The case prompted widespread outrage. A group of lawyers filed a complaint with Texas’s State Commission on Judicial Conduct, but more than a year later, the commission, inexcusably, still has not taken any public action. This week, State Representative Lon Burnam introduced an impeachment resolution against Judge Keller, accusing her of “gross neglect of duty” and “willful disregard for human life.”

If the facts are as reported, Judge Keller should be removed from the bench. It would show monumental callousness, as well as a fundamental misunderstanding of justice, for a judge to think that a brief delay in closing a court office should take precedence over a motion that raises constitutional objections to an execution. If the facts have been misreported, the impeachment process would allow Judge Keller to set the record straight.

Impeaching a judge is not a step a legislature should take lightly. It is important that judges be insulated from political pressures so they have the independence necessary to administer justice fairly. But judges cannot be allowed to use their extraordinary discretion to deny litigants the fundamentals of due process. That is especially true if the stakes are literally life or death.