Legal News

?She Answered a Simple Question?: The Trial of Sharon Keller Begins

By Ashby Jones

The temperature in in San Antonio, Texas, on Monday is slated to hit 99°. And indeed, the seat will be plenty hot for Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals (the criminal equivalent to the state Supreme Court).

Starting today, Keller will sit before state District Judge David Berchelmann Jr. at the Bexar County Courthouse as special prosecutors for the State Commission on Judicial Conduct present evidence against her. At issue: whether and to what degree Keller erred one day back in 2007 when she closed the courthouse doors at 5 p.m., barring a death-row inmate from filing an appeal. The defendant was executed later in the day. Click here for a curtain-raiser from the Houston Chronicle, here and here for previous LB coverage.

The facts of the case, as presented by the Chron: On Sept. 25, 2007, just a few minutes before 5 p.m., Keller’s phone rang. "They want to hold the court open," the court’s general counsel, Edward Marty recalled telling Keller. Marty was referring to lawyers for death row inmate Michael Richard, who was slated to be executed in 90 minutes. The lawyers were hustling to file an appeal in the wake of the U.S. Supreme Court’s decision earlier that day to grant cert. on a case involving whether lethal injection constituted cruel-and-unusual punishment. Richard’s lawyers wanted a stay of execution until the Supreme Court could decide the matter.

But Keller refused, saying the clerk’s office closed at 5 p.m. At 8:20 p.m., Richard was executed. He had been convicted for raping and killing a nurse in August 1986.

According to prosecutors for the Judicial Conduct Commission, Keller, who had gone home early that afternoon to meet a repairman, had an ethical duty to advise fellow Appeals Court Judge Cheryl Johnson of the conversation with Marty. Johnson was on call that night in the event a last-minute appeal would be filed.

But Keller never intended to obstruct Richard’s attorneys from filing an appeal, said her lawyer Charles "Chip" Babcock. "If you believe this story that’s been spun, it kind of looks bad for Judge Keller," he said. But in truth, he said, the one or two-minute phone conversation that she had with Marty was only about office hours.

"She picked up the phone and she answered a simple question," he said. "There’s just no way she violated any code of conduct."

Keller is expected to testify at this week’s hearing. After it’s over, Berchelmann will issue a report stating the facts as he sees them to the 13-member State Commission on Judicial Conduct. The panel will then decide at a public meeting one of three options: Dismiss the case; issue a public censure; or recommend to the Supreme Court that Keller be removed.

Full post as published by Law Blog - WSJ.com on August 17, 2009 (boomark / email).