Sharon Keller: The Saga Continues

Now it's official. Both sides agree that the Special Master (just how "special" is a question I'll leave to you after you've read the report and objections) screwed up.

I'm referring, of course, to Judge David Berchelmann Jr. of the 37th District Court in San Antonio, appointed Special Master for In Re: The Honorable Sharon Keller the ethics case against the Chief Justice of the Texas Court of Criminal Appeals. The hearing, you'll recall, was to make factual findings regarding whether "Killer," as she's known, acted unethically on September 25, 2007 when she refused to allow the Clerk of Court's office to remain open for a late filing by Michael Wayne Richard who was to be (and actually was) executed that evening.

I've harped on this point a number of times. It's an ethics case. The question is whether she acted improperly, not whether others acted improperly. Whether she was or was not responsible, or primarily responsible, for the fact that Richard was killed that night is irrelevant. Here's what I wrote at the time of the hearing:

So what's she doing (OK, her lawyer, but we always say it's the client) trying to show that David Dow, lead counsel for Richards, had alternatives, that there were other ways he could have filed, that he was incompetent, that there was no good cause for a late filing? Is any of that relevant?

It's tangentially relevant to the charge that she brought disrepute on the court, since nobody would have known about her other improper acts if Dow had successfully filed his motion. But the improper acts (if they were improper, I hate to prejudge, OK, just this once, they were) would still have occurred. What else? Oh, yeah, blow smoke, blame the victim, you know, the sort of thing she gets all huffy about when criminal defendants and their lawyers do it.

. . .

. . . Her defense is noblesse oblige, and "Let them eat cake," and "Off with their heads." And it's SODDI, and "The bitch deserved it," and "Hey, I'm the victim here." In passing, she claims she did no wrong, though she conceded on the stand yesterday that it was a close call.

When Judge Berchelmann issued his report, I made the same point this way.

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.

And I noted that Berchelmann pretty much bought it.

Oh, he said her behavior wasn't "exemplary," and that really she'd been thoroughly humiliated. He looked at her claim that she'd do exactly the same thing again, declared that was obviously a lie, and said she'd learned her lesson.

But, see, that's not what Berchelmann was supposed to do.

On Tuesday, the "Examiner" ("prosecutor" is the closest analogue, but it's not exact) and Keller filed written objections to Berchelmann's report. (Examiner's here; Keller's here.) Grits focuses on the Examiner's objections.

In any event, these new "objections" identify what was to me the most frustrating aspect of Judge Berchelmann's work: He didn't actually issue findings on most of the questions asked of him, instead opining at length on other topics. Nobody asked him whether the Texas Defender Service or Judge Keller was more at fault, but that was the main focus of his writing. What's more, "The Special Master exceeded his role by making recommendations as to sanctions, if any." Said examiners:

The issue here is not TDS's conduct, but Judge Keller's conduct. The Special Master's conclusions concerning causation are irrelevant to the issue of whether Judge Keller by her conduct violated the constitutional, statutory and canon provisions cited by the examiner. The Commission should not be diverted by the Special Master's erroneous attempt to frame this case in terms of who ultimately caused the failure of the USSC to grant a stay.

Instead of focusing on TDS, said examiners, "Judge Keller's conduct on September 25, 2007 should be examined based on what she knew, heard, thought, said, did, decided, and failed to do - and not on things she didn't know."

Yep.

The Examiner's objections highlight both how far Berchelmann went off the tracks and also how damning the evidence against Keller - for ethical violations, not for murder - actually was.
Indeed, even Berchelmann's sentencing recommendation (she's suffered enough) was not merely questionable, it was ultra vires (legal talk for beyond the scope of his authority).

The Special Master's findings include his opinions as to sanctions, if any. As those portions of his "findings" are outside the scope of his responsibility, those portions are irrelevant and should be disregarded. Under Rule 10(h) of the Rules for Removal or retirement of Judges, the Special Master's role is to furnish findings of fact -- that is a determination of what happened -- and not to make conclusions or recommendations as to the consequences of those findings.

Keller, too, says that Berchelmann's findings were improper. While she sees in his report a complete vindication, she objects to every negative comment about her performance, maintaining that each was beyond the scope of Berchelmann's authority and was, in any case, without support in the record.

Oh yeah, there's one more thing both the Examiner and Keller agree on: The Special Master was wrong when he said she had to be either lying or delusional when she said she'd do nothing differently if the situation came up again.

Here's Berchelmann:

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.

Here's the Examiner:

The Special Master's incredulity must reflect his belief that Judge Keller simply mis-spoke at the evidentiary hearing and that she did not mean what she said. That belief is irreconcilable with the words Judge Keller used at the hearing. Moreover, Judge Keller's August 19, 2009 testimony at the evidentiary hearing is substantially the same as she testified in her deposition earlier in the proceeding. Her claim that she would act the same today was not an inadvertent mis-statement at the hearing. Judge Keller means it when she says that she has no regrets about her conduct and that she would do the same again if left to her own decisions.

And here's Keller:

Furthermore, when Judge Keller testified that she would not change her conduct if presented with exactly the same factual situation as she was presented on September 25, 2007, she meant exactly what she said. She did not testify that, if she knew today what she knew then, nor if she knew that TDS would disseminate false information about her, she would act the same way today -- rather, she simply reaffirmed her conviction that, under the circumstances of which she was aware at the time, she believes she acted properly.

So there's no mistake. The Special Master's whitewash of the arrogance (no "reasonable person" would do the same thing again) yields to the declaration that she sure would. No error. No correction. If Berchelmann got anything about the statement right, it's that Keller cannot be deemed "reasonable."

There is something irreduceably Texan in the refusal to change course or acknowledge the possibility of error despite all evidence. (See Shrub's years of denial about almost everything.) We admire certainty. Consistency can be a virtue (when it's not being the Emersonian "hobgoblin of little minds"). Davy Crockett offered this couplet:

I leave this rule for others when I'm dead,
be always sure you're right, THEN GO AHEAD!

But you know, there's something to be said for humility, too. And for being willing to learn from mistakes.

The objections, both sets, are damning. The Examiner lays out Keller's misconduct and lapses, and cuts to the chase:

Judge Keller's unapologetic defense, and her adamant testimony that she would do nothing different if presented again with the same circumstances, is a total failure in any acceptance of accountability. Judge Keller's conduct was not accidental or inadvertent, but an intentional choice to address and dispose of a communication that was required instead to be presented to the assigned judge that day, her colleague Judge Johnson.

Keller, of course, sees it differently.

The Special Master’s Findings of Fact plainly absolve Judge Keller of all of the charges leveled against her by the Examiner; the Findings of Fact can only be read as an exoneration of her conduct.

Well, clearly they can be read otherwise. But that sort of blindness to possibility is, and has been, at the heart of this.

Keller now gets to respond to the Examiner's objections. Then, the State Commission on Judicial Conduct has to decide what to do.

As I keep saying, Stay tuned.