Tarnished justice

Misconduct trial of Judge Keller depicts a court of confusion.

Being Texas Court of Criminal Appeals Presiding Judge Sharon Keller apparently means never having to say you're sorry, even if your actions have brought worldwide scorn upon the state's highest criminal court.

At the core of a five-count complaint by the State Commission on Judicial Conduct is the charge that Keller violated established court procedure by refusing to keep the court clerk's office open past 5 p.m. on Sept. 25, 2007, to accept a last-minute stay of execution request by lawyers for death row inmate Michael Richard, a convicted rapist and murderer. As a result, he was executed as scheduled that evening in Huntsville.

A four-day trial conducted in San Antonio by a special master, District Judge David Berchelmann Jr., concluded last week. He will now recommend to the commission whether the charges should be dropped or the judge reprimanded or even removed from office. That process could take months or even years.

Elected to the court in 1994 and presiding judge for eight years, former prosecutor Keller has amassed a reputation for upholding sentences and outraging legal scholars. In one case she dismissed DNA evidence that appeared to exonerate a convicted rapist by arguing that he could have worn a condom. He was later released from prison and pardoned. However, the controversy and consequences surrounding her “nine to five” decision undoubtedly will make it her greatest career hit.

“I just don't think anybody did anything wrong,” testified Keller at the trial. In answer to a prosecutor's question, she said she wouldn't do anything differently.

Keller not only refused to keep the office open to take an appeal, but she failed to inform Richard's defense team or fellow judges about the situation. She did not tell the judge who was on call to take any last minute appeals, Cheryl Johnson, that the defense lawyers were trying to file such a motion. The unwritten court procedure required any communications involving the execution to be relayed to the on-call judge.

Johnson testified, “I was frustrated that the protocol had not been followed.”

Keller also didn't instruct subordinates to tell the lawyers that there was a judge staying at the court late for that purpose. As a result, no stay was filed, despite the fact that the U.S. Supreme Court had earlier in the day issued a ruling effectively halting lethal injection executions pending review of the technique's legality. Eventually, the high court decided lethal injection executions could resume.

Incredibly, Keller's defense at the San Antonio proceeding was that she was just enforcing office hours and not preventing the Richard appeal from being filed. After all, her attorney Chip Babcock argued, the lawyers could have contacted other court judges. In fact, no one outside the court knew there was a judge on call, and court policy requires lawyers with appeals to go through the court clerk rather than contacting judges. For Keller now to say that the issue was not a substantive life and death matter, but rather a question of office hours, is laughable on its face.

Even less believable was a claim by the court's former general counsel, Ed Marty, that he had told Judge Johnson about the defense lawyer's request for additional time. Judge Johnson flatly denied that and testified Marty had simply said no filing had come in. Why would Judge Johnson have stayed late at the court waiting for that appeal to be filed if she knew it had already been rebuffed?

As with many a defendant who has used technicalities to evade conviction, Judge Keller will likely get off with a hand slap. But she committed gross negligence of her duty to provide impartial justice to all, even convicted murderers. If she does run for re-election in 2012, voters should replace her with a jurist who takes seriously his or her oath of office.

Source(www.chron.com)