[I]t is hardly shocking that Judge Keller does not feel, today, that she did anything wrong or that, based on what she knew at the time, she should have done anything differently. 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 what she said. She did not testify that, if she knew today what she knew then, she would act the same way.
Of course, her claim of what she did not say is a precise restatement of what she says she did say. It's probably a typo or something like that, but it reveals much.
It's part of the latest salvo (in two sections, here and here) from Sharon Keller, Chief Judge of the Texas Court of Criminal Appeals, in the long-running battle In re Keller. (Earlier reports, with links to pretty much all the relevant documents here and here and here and here.) Let's recap.
Keller was charged with a series of ethics violations based on events of September 25, 2007, when Michael Wayne Richard was executed. She declined to keep the courthouse open for a late filing by Richard's counsel, failed to notify the judge who was on duty to handle the matter that a request had been made or that a late filing was in the works, and dissembled about it afterward. Nobody except she actually disputes those things.
In August 2009, a hearing was held before a Judge David Berchelmann, Jr., acting as special master. In January he issued his report and recommendation. Here's how I described Keller's defense back in January (as part of my discussion of Berchelmann's report).
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 Richard, 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.
Berchelmann bought into much of this, including the distraction of whether Keller or Dow had greater responsibility for Richard getting executed that night. He concluded that Keller's behavior was . . . . Bah, why summarize? Here's what he wrote
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.
There's that messy part where he got distracted by the SODDI (some other dude did it) argument. The question never was who was responsible for the killing. It was, always, did Keller act appropriately. Berchelmann repeated that she did not.
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.
But again, no punishment.
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.
In this, conduct which was "not exemplary," decisions "highly questionable," "a valid reason why many in the legal community are not proud of Judge Keller's actions," conduct not "so egregious that she should be removed from office," Keller finds complete exoneration. That's smoke and mirrors.
But then she objects to charges brought based on evidence from interviews where leading questions were asked and the subjects didn't have counsel and where the prosecutor examiner didn't investigate fully whether there might be another killer explanation. She claims that they played fast and loose with the rules and whines that the court Special Master wouldn't dismiss the charges.
This course of events would not seem out of place in the old Soviet bloc, where show trials were not really trials, but were degradation ceremonies staged to depose officials who deviated from party doctrine.
Please. Give me a break.
When defendants make these sorts of arguments, Jude Keller votes to affirm convictions and expedite executions. But this is defendant Keller. What's not good enough for the goose will surely serve the needs of the gander.
But she can't stop - or maybe she just won't.
[T]he Special Master simply made the common-sense and well-founded observation that, given a record that is completely devoid of any evidence of wrongdoing by Judge Keller, no sanction possibly could be warranted.
Shall we go back to see how that squares with no "conduct so egregious that she should be removed from office"?
Many years ago, a judge told me that when young people come to him and explain that they want to go to law school so that they can become lawyers and protect people's constitutional rights (and he suggested that this happened rather a lot), he would respond this way.
Don't go to law school. Go to D.C. and become a cop. Then roust Rehnquist and Scalia for no reason. There's nothing that you can do that would be better for the Fourth Amendment.
There's some appeal to that, but it assumes the Justices would have gotten the point. Would have felt the ordinary rather than concluding that their special entitlement has been violated.
Sharon Keller, Judge, gets something of a taste of what it's like to be a defendant. And the evidence suggests that doesn't get that real defendants experience any of the same things.
Because she's entitled. Because she's not one of them.
See, all the rest are guilty.
But she's exonerated.
Except, of course, even the Special Master didn't say that.
There will be a hearing June 18.
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