Patterico's Pontifications

8/19/2009

Texas Judge Sharon Keller’s Misconduct Trial

Filed under: Judiciary — DRJ @ 9:52 pm

[Guest post by DRJ]

Remember Texas Court of Criminal Appeals Presiding Judge Sharon Keller, the “We close at 5″ Judge? (Former posts here and here, as well as Beldar’s excellent analysis here.)

Judge Keller was charged with misconduct by the State Commission on Judicial Conduct as a result of this incident and her trial has been ongoing this week. Keller testified today she wouldn’t do anything different if she could do it over again and blamed the conduct of the defense counsel:

“The potentially career-ending charges accuse Keller of incompetence in office, bringing discredit to the judiciary and failure to protect Richard’s right to have a valid grievance heard in court when she denied a request from the inmate’s lawyers to file briefs after 5 p.m. on Sept. 25, 2007.

Richard was executed that night.

Keller, one of nine judges on the Court of Criminal Appeals, denied every charge and turned criticism back onto Richard’s lawyers.

“I think it’s a legitimate question to ask why his lawyers had from 9:30 in the morning until 8:20 at night and did nothing,” she said.”

The biggest surprise of the trial is testimony from former general counsel Ed Marty:

“Monday’s surprise revelation came in opening statements when prosecution and defense lawyers discussed the pretrial deposition of Ed Marty, who was the court’s general counsel when Richard was executed on Sept. 25, 2007.

Marty had called Keller at home about 4:45 p.m. that day to say Richard’s lawyers were asking for more time to file briefs. Keller refused.

Marty’s questioning has been eagerly anticipated for what it would reveal about that conversation. But when he was deposed Aug. 6 — later than other witnesses in the case because he now lives in Alabama — Marty testified that he also discussed the lawyers’ request for additional time with one other judge, [Cheryl] Johnson, before 5 p.m.

The revelation is potentially significant, indicating that Keller did not act alone to deny the request and that court rules had been followed.

But Johnson contradicted Marty’s recollection, testifying that he came to her office shortly before 5 p.m. “and told me nothing had come in,” she said, adding that he never mentioned a phone call from Richard’s lawyers.”

The Austin American-Statesman has several articles on Judge Keller’s trial in its archives. The trial was expected to end today with closing arguments to follow. Rather than issuing a verdict, I believe the trial judge will make recommendations to the State Commission on Judicial Conduct.

– DRJ

23 Responses to “Texas Judge Sharon Keller’s Misconduct Trial”

  1. I was heartened to read about Judge Womack, who taught me Texas Criminal Procedure. He was a really nice guy and had a much nicer test policy than the rest of the law school offered.

    I don’t think he had much to add, besides ‘I didn’t hear anything’, but it was good to hear about him. He’s not on the CCP anymore.

    I never liked Judge Keller. Just reading her opinions was annoying. If she truly understood that this was a death penalty case, then I’m shocked she’d let this happen.

    Why didn’t Texas Defender Service try to contact Judge Johnson?

    Juan (bd4b30)

  2. Just think if Judge Keller were a doctor under an Obamacare public option and a patient came in right at 5:00. I don’t think the outcome would be any different.

    “You’re bleedin’ out? Too bad. So sad. We close at five. I don’t get paid any extra for stayin’ late.”

    “What’s that you say? Hippocratic oath? Whaddaya mean? I work for the government now. They pay me shit. I’m a freakin’ civil servant, not a doctor. Hours are posted on the door. Come back tomorrow if you’re still alive”

    daleyrocks (718861)

  3. This is bogus. The onus is entirely on Richard’s attorneys who committed malpractice in my opinion. Nobody will ever compare me to F. Lee Bailey, but if I had a client on death row, I would know how to get a Justice to hear an emergency petition if I had to interrupt his wedding ceremony.

    Those lawyers, it seems to me, just went through the motions. They typed a piece of paper and then looked to get a file stamp on it just to cover themselves.

    I have seen this personally many times and have also had judges tell me that so many lawyers, both from the prosecution and defense side, expect the judge to do their work for them.

    nk (f3e47f)

  4. Yeah, poor guy, on death row for a short 23 years before being executed. Never had a chance, with 23 years’ worth of appeals. All of which were denied.

    And as a former law clerk, I agree with poster nk – sloppy legal practice, including late or incomplete filings by lawyers gets blamed on the court, which is supposed to make exceptions for their shoddy work every time.

    CC (cd114a)

  5. ‘some lawyers expect the judge to do their job for them’

    I think there’s a lot of truth to that. Like I said, they knew there were other people they could contact. I roll my eyes at the ‘computer failure’ excuse, at any rate.

    Even though this guy was going to be executed anyway, and even though I’m glad he’s dead, if these lawyers want to represent death row inmates, they need to get their act together.

    Ernest Willis’s name pops into my head when I think about the death penalty. Innocent people are indeed sentenced to death in Texas, and it’s mainly because of lawyers who don’t live up to basic standards. I hope the penalties against Keller aren’t the only ones dished out. Why is it everyone knows her name, and few people know whose computer glitched?

    Juan (bd4b30)

  6. A.bit. background often omitted, the executed murderer Michael Wayne Richard, admitted his guilt, the evidence was preponderant and he turned down a Life Sentence Plea…in 1987. Finally receiving his just reward when executed by lethal injection, September 2007 in Huntsville, Texas for the rape, robbery, and murder of a woman in her home. On the afternoon of 18 August 1986, Richard, then 26, was in front of the Hockley home of Marguerite Dixon, 53. Richard approached Dixon’s son, Albert, and asked if the van parked in the driveway was for sale. When Albert Dixon told him the van belonged to his brother who was out of town, Richard left.
    A few minutes later, Richard saw Albert and his sister, Paula, leave the property. Richard then entered Mrs. Dixon’s home. He forced her into a bedroom, where he raped her. The then shot her in the head with a .25-caliber pistol. He then stole two televisions and the van.
    Mrs. Dixon’s children returned home that evening. They found the sliding-glass door open and all the lights turned off. After calling a neighbor for assistance, they entered the house and discovered their mother dead in her bedroom.
    Richard hotwired the van and drove it to Houston. He traded the murder weapon to a friend for cocaine and attempted to sell the televisions. He then drove the van to another home, where it broke down. He told the homeowner, a friend of his, that he would return for the van, but he never did. The homeowner called a wrecker the next morning to take the van away. When it was discovered that the van had been hotwired and stripped, the police were called. After interviewing the homeowner and the man to whom Richard had tried to sell the televisions, the police obtained an arrest warrant for Richard. He was arrested at his mother’s home the next evening….more : http://www.txexecutions.org/default.asp

    westWright (2abc10)

  7. In a country where criminal scum can suck millions of $$ out of the taxpayers with every sort of appeal and procedural tactic, why should the court have to stay open late to facilitate yet another appeal or brief? The anti-death penalty guys use every trick in the book to thwart justice. But where in the book does it say that the court is open 24/7?

    If killers are spared on technicalities, then Hoo-Rah that this one fried because of the office hours of the court. It isn’t like he didn’t have OVER 20 YEARS to file his briefs!!!

    smarty (eed5d4)

  8. If this commission/trial shows that the failure is on the part of the attorneys, what is Judge Keller’s recourse against them?

    Where does she go to get her reputation back?

    luagha (5cbe06)

  9. I think she stood up for herself and that’s commendable.

    henryyoung (40baca)

  10. Hey, it’s not like someone’s life was at stake, just the manner of his death, right?

    ShelbyC (8546d8)

  11. Comment by ShelbyC — 8/20/2009 @ 4:57 pm

    exactly, there was no question of his guilt. if SCOTUS had declared the cocktail “cruel” then a different method would have been used.

    this is just legal bullying to scare judges to bend over backwards for death row inmates filing frivolous appeals.

    chas (74529e)

  12. The money quote … “In her testimony Wednesday, Keller blamed her legal woes on Richard’s lawyers with the Texas Defender Service, or TDS, and said her decision to close the court clerk’s office at 5 p.m. should not have stopped them from filing their briefs directly with one of the court’s nine judges or with the general counsel.”
    “Those articles were the result of misinformation from TDS attorneys to the press regarding the time they had been ready to file, the length of the pleadings and whether they were volunteers,” she said. ”

    Let’s be clear here – the COURT CLOSED, but the opportunity to accept briefs did not. The TDS lawyers filed NO briefs. They screwed up. End of story.

    It’s not a Judge’s job to turn a court into an 24-hr 7-11 mart for lawyers. It’s the lawyers job to know and follow the rules, and they did have the oppty to serve filings *outside* the court.

    “Yeah, poor guy, on death row for a short 23 years before being executed. Never had a chance, with 23 years’ worth of appeals. All of which were denied.”

    Indeed. if this Judge is going to get railroaded because she didnt handhold a sloppy lastminute appeal, any Judge will be at risk to such abuse. So appeals will get ever more frivolous and sloppy yet the motions will grind slower before the inevitable meting of justice is done.

    Travis Monitor (e991bc)

  13. It wasn’t even an appeal, was it? Wasn’t it just a stay of execution, to wait for the SCotUS decision?

    Scott Jacobs (d027b8)

  14. Travis you’re right… the lawyers (by the way, their account of events has already proven to include some falsehoods, which is fucking serious shit) could have sent their brief directly to Judge Johnson.

    But I think they were gunning for a 30 day delay by forcing the issue to be late. Either that or they are so sloppy they should not be permitted to handle criminal appeals anymore. The rules don’t apply to them because their cases are special, so they abuse the mercy they get, until someone’s had enough, and now here we are.

    I still think Keller should have referred this to Johnson herself, but this wasn’t her client.

    Juan (bd4b30)

  15. The legal “system” is really people, and a lawyer’s duty of incompetence included knowing the people to go to for his client’s interests.

    It was not a death penalty case, but I had a judge sign an emergency ex parte order for me at his home’s front door and then call his court clerk to meet me at the courthouse to certify it. I knew the deputy sheriff on holiday duty. She said, “Why are you here?” I said, “I need Judge _____’s clerk to stamp something for me”. We then chatted about real estate.

    These things are not exceptional, they are routine in some areas of the law, and lawyers and court personnel take them in stride. I suppose the only “exceptional” thing in my case was that the judge I went to preferred to keep control of his files and it was not necessary, or even desirable, for me to page the emergency motion judge on call. But even that, I think, is a matter of the minimal experience that a lawyer should have.

    nk (4ee048)

  16. Did I write “duty of incompetence”?
    Sigh.

    nk (4ee048)

  17. their account of events has already proven to include some falsehoods, which is fornicating serious excrement

    When bringing charges against a judge, and giving written/spoken testimony at a misconduct trial, I would assume it is best to not lie.

    I mean, you’re already at a misconduct trial – what’s to stop them from adding you to the end-of-day business?

    Did I write “duty of incompetence”?

    Yes. Yes you did.

    Your opinion of council is showing. :)

    Scott Jacobs (d027b8)

  18. Scott, if so-called “defense attorneys” did not routinely sell their clients down the river, the prison industry would go bankrupt.

    nk (4ee048)

  19. In Cook County, 80% to 85% percent of convictions are plea bargains.

    nk (4ee048)

  20. In twenty-seven years, I pleaded out only one case which included jail-time. Two counts of attempt armed robbery. Three months already served, before I got his bail reduced, and three months more to complete the sentence. He was not taken into custody upon making the deal, either. The judge took my word that I would bring him back after a month. So he could settle his affairs. I did.

    nk (4ee048)

  21. Added my own comments on this here:
    http://travismonitor.blogspot.com/2009/08/in-matter-of-judge-sharon-keller.html

    My bottom line: Judge Keller deserves to have her name cleared on this.

    Travis Monitor (9e3371)

  22. [...] blogged before regarding judicial proceedings against Texas Court of Criminal Appeals Presiding Judge Sharon Keller, also known as the “We Close at 5″ Judge. Judge Keller was charged with misconduct by [...]

    Patterico's Pontifications » Trial Judge Recommends “We Close at 5″ Judge Be Exonerated (e4ab32)


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