Still Fly Free - The Sharon Keller Story Continued

Sharon Keller, "Killer" Keller as she's known to many, Chief Justice of the Texas Court of Criminal Appeals. She who closed the clerk's office at 5:00 p.m. on September 25, 2007, leading indirectly to the execution of Michael Wayne Richard that night. She who was charged not with murder, not with any crime, but with judicial misconduct, an ethics complaint that could have led to her being stripped of her judgeship.

The case was heard by a special master back in August. The trial was, frankly, something of a circus. Keller's defense was, in essence, that Texas Defender Services and its lead counsel David Dow, who represented Richards, had alternatives. She argued that there were other ways he could have filed papers to try to save Richards, that he was incompetent, that there was no good cause for a late filing and that, therefore, her actions which had the effect of preventing that late filing didn't cause Richard's execution.

That's a long, clumsy sentence, but so was the defense. In essence, she changed the subject. It's a basic rhetorical ploy she roundly condemns in our clients.

Rather than assert she did nothing wrong (actually, she asserted that, too), she claimed that what she did was irrelevant because Dow and TDS were incompetent and dishonest. It was all about finger-pointing, distraction, changing the subject. Smoke and mirrors.

She was charged with being unethical and defended herself by insisting that she didn't commit murder.

Today, the verdict is in. Something close to not guilty.

In a 16 page decision, Judge David Berchelmann Jr. of the 37th District Court in San Antonio, special master for In Re: The Honorable Sharon Keller, revealed that he drank the Kool Aid.

Both the TDS and Judge Keller point fingers at each other, claiming that the other caused the execution of Michael Wayne Richard ("Richard") that evening, even though, earlier in the day, the Supreme Court had indicated that it wanted to review the constitutionality of execution by lethal injection. Ultimately, the TDS never presented a lethal injection challenge to the TCCA [Texas Court of Criminal Appeals]. What is also clear is that, although Judge Keller's conduct on that day was not exemplary, she did not engage in conduct so egregious that she should be removed from office. Indeed, although Judge Keller's actions did not help the situation, the majority of the problems involving the Richard execution were the responsibility of the TDS.

Except, of course, none of this is relevant. Again, the question isn't whether Keller was more or less responsible than TDS for Richard getting killed that night. Hell, it isn't about whether Keller had any responsibility for the killing at all. It's about whether Keller's conduct was improper.

It clearly was. Berchelmann says as much, detailing a number of things she did wrong. But since she didn't kill anyone, since TDS was more responsible (or so Berchelmann concludes), it's not that big a deal.

Except, and I know I'm sounding like a broken record here, whether Keller acted improperly isn't a function of the consequence of the action. It's a function of the action itself. And that someone else acted improperly too - So what? Two wrongs don't make a right as my mother may never actually have said.

Judge Keller's conduct, however, was not exemplary of a public servant. She should have been more open and helpful about the way in which the TDS could present the lethal injection claim to the TCCA. She should have directed the TDS's communication to Judge Johnson. Although she says that if she could do it all over again she would not change any of her actions, this cannot be true. Any reasonable person, having gone through this ordeal, surely would realize that open communication, particularly during the hectic few hours before an execution, would benefit the interests of justice. Further, her judgment in not keeping the clerk's office open past 5:00 to allow the TDS to file was highly questionable. In sum, there is a valid reason why many in the legal community are not proud of Judge Keller's actions.

Judge Keller's silence on several occasions conflicts with the ideal that courts should foster open communication among court staff and litigants. But Judge Keller's omission did not cause the TDS to be late in its filing, to forget the other available avenues, or to fail to ahve any of its experienced lawyers contact the TCCA. She did not violate any written or unwritten rules or laws. Of course, that does not absolve her of the responsibility to ensure that the courts remain fair and just. Her conduct, however, does not warrant removal from office, or even further reprimand beyond the public humiliation she has surely suffered.

You think?

Let's parse that a bit.

Again, Judge Berchelmann says that she didn't commit a major ethical violation because what TDS did was worse. That's irrelevant and disingenuous. He says that it's terrible for her to say that she wouldn't do anything differently if she had it to do over again, but absolves her because it's obviously (he thinks) a lie (which is, he apparently thinks, ethically appropriate judicial-speak). And he says that she must be humiliated, which is punishment enough.

Of course, there's another way to look at it. She might well have been telling the truth when she said she'd do things the same way again. She's been arrogant from the beginning. She is arrogant to the end. Humiliated enough? Is it even possible to humiliate her?

Scott Henson gets it.

Interesting to note that "public humiliation" is a substitute for an official reprimand when a judge engages in "not exemplary" behavior that's considered "highly questionable."

At The Briefcase, this morning, Russ Bensing explained that sometimes an apology isn't enough. On the other hand, refusing to apologize, failure of contrition, mostly won't do it, either.

Unless, of course, you're the self-declared "pro-prosecution" Chief Justice of the Texas Court of Criminal Appeals.