Texas' top criminal judge's job on the line for death penalty case
BY MAX B. BAKER AND KEVIN LYONS
mbaker@star-telegram.comIn a procedure that could lead to the booting of the state’s top
criminal judge, the Commission on Judicial Conduct announced Thursday
that it is seeking to publicly sanction Texas Court of Criminal
Appeals Presiding Judge Sharon Keller for refusing to extend the
court’s business hours while a Death Row inmate’s attorneys prepared
an appeal hours before the inmate was executed.
In a notice calling a formal hearing on the case, which has generated
headlines nationwide, the commission said Keller’s "willful and
persistent conduct" was clearly inconsistent with the proper
performance of her duties in regards to a last-minute appeal by
Michael Wayne Richard on Sept. 25, 2007.
The commission states that Keller’s action "casts public discredit on
the judiciary" and on the administration of justice.
The hearing notice also said her actions constituted "incompetence in
the performance of duties" of her office.
Keller’s office said the judge would not comment Thursday. Keller has
15 days to file a written answer to the charges.
In the proceeding, Keller, a Republican, has the right to counsel, to
be confronted by her accusers, to introduce evidence and to examine
and cross-examine witnesses.
After the proceedings, the commission may adopt, change or reject the
findings and then issue conclusions.
The proceedings may end in dismissal, public censure or
recommendation of removal. The decision is then sent to a review
tribunal appointed by the Supreme Court of Texas. Only the review
tribunal may remove the judge from the bench, and that decision could
be appealed to the Texas Supreme Court.
Seana Willing, executive director of the judicial commission, said
the Texas Supreme Court will appoint a special master to hear the
matter. According to commission documents, the special master is a
sitting or retired district or appellate judge.
Long time coming
"I’m impressed that the people on this commission took it serious
enough, they decided even if you’re the presiding judge of the
highest criminal court in the state that you’re still subjected to
justice," said Jim Harrington, director of the Texas Civil Rights
Project, which filed the original complaint to the commission.
This week, state Rep. Lon Burnam, D-Fort Worth, filed a resolution
seeking to impeach Keller for her role in the incident.
Burnam was among a group of more than 20 people, including lawyers
and a former appellate judge, who filed complaints against Keller to
the judicial commission, accusing her of violating Richard’s rights.
They said Keller improperly cut off appeals even though the U.S.
Supreme Court had earlier in the day said it was going to hear
arguments in a Kentucky case over whether the procedure used for
lethal injections violated the prohibition on cruel and unusual
punishment.
"I believe the commission probably took a little longer than they
needed to take to get to where they got this week," Burnam said. "In
fact, it would be supremely naive to think that they didn’t need a
little jarring with my resolution on Monday.
They may have been working diligently on this for the last 15 months,
but I don’t think it’s just a coincidence."
Richard, 49, was executed for the August 1986 rape and murder of a
Harris County woman.
Computer problems
On the day he was scheduled for execution, Richard’s attorneys were
preparing a draft motion to have his execution stayed until the high
court ruled, but didn’t have it ready before the Austin appeals court
closed at 5 p.m.
Saying they were being held up by computer problems, Richard’s
lawyers called a court clerk at 4:45 p.m. to ask whether the court
could remain open for an additional 20 minutes.
Keller, who had left her office earlier in the day to meet a
repairman at her house, told the court clerk to close at the usual time.
The next morning, Keller and other Texas Court of Criminal Appeals
judges met for their weekly conference, according to the complaint
filed with the State Commission on Judicial Conduct. Several said
they were surprised that Richard’s attorneys had not filed a draft
motion based on the Kentucky case.
One of the judges, Cathy Cochran, who was not aware of what Keller
had done the night before, posed a hypothetical in which someone
called the clerk’s office before 5 p.m., wanted to file something,
but couldn’t get it there in time. Cochran’s position was that the
Court of Criminal Appeals should allow the late filing.
Keller did not tell the other judges about what happened the night
before.
She said: "The clerk’s office closes at 5 p.m. It’s not a policy,
it’s a fact."
This report contains material from The Associated Press.
MAX B. BAKER, 817-390-7714 KEVIN LYONS, 817-685-3801
http://www.star-telegram.com/news/story/1214732.html
