Mixed Opinions of a Judge Accused of Misconduct

Mixed Opinions of a Judge Accused of Misconduct

A refusal to accept a last-minute appeal in a death penalty case could end the career of a top judge in Texas.

By GRETEL C. KOVACH

Published: March 7, 2009

DALLAS — If Sharon Keller, the presiding judge of Texas’ highest criminal court, has ever doubted her judgment, she has not shown it.

Elena Grothe/Austin American-Statesman
Sharon Keller, who was first elected to the Texas Court of Criminal Appeals in 1994, is now its presiding judge.

In 1998, Judge Keller wrote the opinion rejecting a new trial for Roy Criner, a mentally retarded man convicted of rape and murder, even though DNA tests after his trial showed that it was not his semen in the victim.

“We can’t give new trials to everyone who establishes, after conviction, that they might be innocent,” she later told the television news program “Frontline.” “We would have no finality in the criminal justice system, and finality is important.”

Gov. George W. Bush eventually pardoned Mr. Criner.

To Judge Keller’s detractors, the Criner decision highlighted what they see as her strong and habitual bias for the prosecution. Many Texas defense lawyers describe her as a law-and-order zealot who rejects most appeals out of hand. Her defenders argue that she has been fair and impartial, though unabashedly conservative, in her interpretation of the law.

Now, Judge Keller is again defending her actions, this time in a judicial misconduct case that could end her career.

Seventeen months ago, lawyers for a man facing execution sought extra time to file a last-minute appeal. Judge Keller refused to delay the closing of her clerk’s office past 5 p.m., even though late filings are common on the day of a scheduled execution. The man, Michael Richard, was put to death by lethal injection a few hours later.

Based on that case, the State Commission on Judicial Conduct last month charged Judge Keller with incompetence, violating her duties and casting public discredit on the judiciary.

Judge Keller, who was first elected chief judge of the Texas Court of Criminal Appeals in 2000, faces a public trial and could be forced off the bench.

Her lawyer insists that she did nothing wrong and that she was being blamed for the mistakes of the defendant’s lawyers and court staff.

Judge Keller, whose current term runs through 2012, rarely grants interviews and did not respond to requests for comment. But others are taking up her cause.

“Sharon is a hard worker,” said Dan Hagood, a defense lawyer and longtime friend from Dallas who served as her campaign treasurer when she ran for election to the court in 1994. “She never complains, never explains.”

Judge Keller, 55, has always kept her own counsel; her colleagues at the court have given her the nickname Mother Superior because of her reserved and diligent demeanor and her devout Roman Catholic faith.

Friends say she is witty and well read, an engaging conversationalist in one-on-one encounters over cocktails, but the quietest one at the table at weekly card games with fellow alumni of Rice University.

What some consider rigid heartlessness in her legal opinions, others admire as calm confidence and the strength of her convictions.

“She doesn’t have a callous bone in her body,” said Knox Fitzpatrick, a lawyer who works with her on the state’s Task Force on Indigent Defense. “She has the highest standard of ethics; she is the ideal judge. Emotions have nothing to do with it: She follows the law, she looks at the facts and makes a dispassionate opinion.”

But Jim Harrington, director of the Texas Civil Rights Project, described Judge Keller as “unhearing.”

“She’s just totally shut down on capital cases,” Mr. Harrington said. “It’s one thing to take a hard line in terms of punishments and convictions. It’s another to not be receptive to the idea that people are entitled to an appeal, that there may be error in this system.”

Supporters point out, however, that under Judge Keller’s leadership as chairwoman of the task force, Texas has expanded the number of public defender offices to 15, from 7; increased the number of people represented by about 38 percent; and raised state spending on the program to almost $60 million, from $19 million.

People also say they admire how Judge Keller has raised her son as a single mother and how close she is with her extended family, which financed the bulk of her campaign to join the court.
Judge Keller had graduated from Rice with a degree in philosophy when her father, the founder of a Dallas chain of hamburger and beer drive-ins, encouraged her to study law, which she did at Southern Methodist University. After a brief stint as a defense lawyer, she joined the Dallas district attorney’s office in 1987 and became a star of the appellate division.

In 1994, she campaigned for an opening on the Court of Criminal Appeals, describing herself as “pro-prosecution.” She was elected along with a number of conservative Republican female justices, the same year that Mr. Bush ousted Ann Richards as governor.

Within a few years, the nine-member Court of Criminal Appeals had flipped from being all Democrats to all Republicans. And the rate of reversal of death penalty cases plummeted.
“I think she epitomizes what a judge should be: a fair and impartial umpire,” said Mr. Hagood, the Dallas defense lawyer.

But Charlie Baird, a Democrat who was voted off the Court of Criminal Appeals in 1998, said bitterly that Judge Keller remained true to her campaign promises.

“It was always one-sided to her, and her side was the state always wins,” Mr. Baird said. “She was always advancing a purely political agenda on behalf of far-right Republicans.”

Now Judge Keller is being forced to explain her actions of Sept. 25, 2007, the day Mr. Richard was executed.

According to the judicial conduct commission’s notice of formal proceedings, Mr. Richard, who had confessed to the rape and fatal shooting of a nurse in 1986, was scheduled to be executed at 6 p.m. Earlier that day, his lawyers were busy drafting filings based on his mental capacity when the United States Supreme Court announced that it would hear arguments considering the constitutionality of lethal injections.

Mr. Richard’s lawyers switched tactics to take advantage of the development.

As 5 p.m. approached, lawyers with the nonprofit Texas Defender Service were having computer problems. They called the court and asked for a few extra minutes to file.
Judge Keller had gone home early that afternoon to meet a repairman, and the court counsel, Edward Marty, reached her by telephone to ask if they could keep the clerk’s office open.

A week later, in an interview with The Austin American-Statesman, Judge Keller offered her account of what had happened.

“I got a phone call shortly before 5 and was told the defendant had asked us to stay open,” she said. “They did not tell us they had computer failure. And given the late request, and with no reason given, I just said, ‘We close at 5.’ I didn’t really think of it as a decision so much as a statement.”

Another judge was waiting at the court for after-hours pleadings in the case but was never notified of the communications from the defense, as required by court policy, the commission concluded. Mr. Richard was executed at 8:20 p.m.

Judge Keller’s lawyer, Charles L. Babcock, said that many people shared in a failure of communication that day and that her role was minor.

“Hindsight being 20/20, I think Judge Keller is certainly sorry that the system broke down,” Mr. Babcock said. “As far as her overt actions, I don’t think she feels she did anything wrong. Nor do I.”

A version of this article appeared in print on March 8, 2009, on page A14 of the New York edition.