Legal News

Trial of an Unrepentant Sharon Keller Wraps Up

By Ashby Jones

The seminal moment in the trial of Texas Court of Criminal Appeals judge Sharon Keller may have come on Wednesday, when she told a crowded courtroom in San Antonio that she would do nothing different if confronted again with a request to keep the clerk’s office open for a last-minute appeal from a death row inmate.

"Yes, that is correct," Keller said from the witness stand when asked if she would respond the same as she did Sept. 25, 2007.

And it’s those words — “Yes, that is correct” — that the special prosecutor in the case, Mike McKetta, chose to highlight in wrapping up his argument on Thursday. McKetta said Keller continues to discredit the judiciary by not taking accountability for her actions.

However, on Thursday, Chip Babcock, the attorney defending Keller, played the political card, saying the misconduct charges were nothing more than "a well-orchestrated attack by death penalty opponents."

Click here and here for coverage over the last couple of days from the San Antonio Express News.

San Antonio-based District Judge David Berchelmann Jr., who has overseen the proceedings since Monday, will prepare a "findings of fact" report for the panel, and present it to a commission, which will decide whether to drop the case, issue a public censure or recommend to the Texas Supreme Court that Keller be removed from office.

The backstory, as we’ve written before: 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 hurrying to file an appeal in the wake of the U.S. Supreme Court’s decision earlier that day to hear 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 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.

The main factual issue could become who Berchelmann will decide to believe Marty or Johnson. Marty later said he did call Johnson to tell her about the chat with Keller. Johnson says that call never happened. If the call did happen, then it could be determined that procedures were properly followed.

For more on the Keller case, check out this NYT editorial, out today. Writes the Times:

We believe the death penalty is in all cases wrong. But people who support it should still insist that it be carried out only after a prisoner has been given every reasonable chance to make his case. Judge Keller's callous indifference in a case where the stakes could not have been higher makes her unfit for office.

Full post as published by Law Blog - WSJ.com on August 21, 2009 (boomark / email).