Thursday, January 20, 2011

Like a Bad Penny - UPDATED with Links

I wanted to write about the failure of appellate review to recognize when innocent people are convicted of crimes and to correct those convictions.
I was going to spin some thoughts about how all those prosecutors who say things like, 
249 appellate court judges looked at this case so the guy we're executing is clearly guilty,
are blowing smoke because few of those judges actually considered whether the guy was innocent and fewer still would admit to there even being a question - regardless of the truth.  To make that point, I was going to quote this piece of a new post by Walter Reeves (Todd Willingham's appellate lawyer - you know, the one who actually worked for the client).
The study reviewed 200 cases; out of those there were a total of 133 defendants who received written decisions in their cases 60 of those defendants raised sufficiency.of evidence claims, and only 1 was successful. The most successful claims were ones raising a state law evidence claim - if you consider 8% successful. The second most successful claim was ineffective assistance - 11%.
Eighteen of the defendants received reversals, which is a 14% reversal rate. 12 of those were retried, some of them multiple times. In contrast, in the comparison group (similar cases where there was no exoneration) the reversal rate was not much different - 10%.
One fact I found interesting was the impact of harmless error, which means the court finds there was some error but it didn't contribute to the verdict. 32% of the decisions relied on harmless error in denying relief. In 10% of the cases the court referred to the evidence of guilt as "overwhelming"!
To be fair, not all claims involve claims of innocence. In the study 25% (33 defendants) of the defendants raised innocence related claims. Only 3 were successful, all on Brady claims. Sixteen of the exonerees raised claims of innocence based on newly discovered evidence - none were successful.
The study also reviewed DNA claims. Many of defendants who ultimately were exonerated had been denied DNA testing - some on multiple occasions. There were even some who obtained DNA results, and still had relief denied.
That's the post I was going to write.
Then, my friend Hilary, told me that Killer Keller, Chief Judge of the Texas Court of Criminal Appeals, is back in the news.
I'm not going to rehash it all here.  
You know, how she told Frontline that DNA proving innocence isn't enough to overturn a conviction because by God we can't just go around upending convictions just because the guy in prison is innocent.  Or how she shut the courthouse when Michael Richard needed to file his paperwork a few minutes late and then argued that although the judge who said she shouldn't be punished for it because she'd learned her lesson and wouldn't do it again was wrong - not that she thought she should be punished, of course, but that she damn well did not learn any lesson and sure as shootin' would too do it again; and besides, they screwed up the whole punishment thing so she walked free on a technicality.  Or how she failed to report a couple of million in assets on her ethics disclosure forms and got fined $100,000 but she shouldn't have to pay because it was all her daddy's fault.
I'm not going to tell you those things because you can just go back and read the old posts if you want the stories.
Instead, I'll tell you that there's another grievance.  This time, the effort is to yank her license to practice law.  Guillermo Contreras has the story in the San Antonio Express-News.  Here's the guts of it.
The Austin-based Texas Civil Rights Project filed a grievance Wednesday with the State Bar of Texas against Justice Sharon Keller, the presiding judge of the Court of Criminal Appeals, saying she is unfit to retain her license to practice law. Records show Keller has been licensed since graduating from SMU's law school in 1978.

The group alleges she is untrustworthy and dishonest, citing:

A review by the Texas Ethics Commission that found she failed to disclose several sources of income, as required by law.

Her refusal in 2007 to keep the court open after 5 p.m. at the request of lawyers drafting an appeal on behalf of death row inmate Michael Richard, who was executed that evening.

Statements she made in a federal lawsuit filed by Richard's widow that purportedly contradict what she told the State Commission on Judicial Conduct.
It's those conflicting statements that are new.  Contreras lays it out.
Richard's widow, Marsha Richard, sued Keller in federal court in Austin in 2007. Keller argued that she acted in her judicial capacity in refusing to keep the courthouse open for Michael Richard's appeal, which made her immune to a lawsuit. U.S. District Judge Lee Yeakel dismissed the case in 2008.

But in front of the judicial conduct commission, Keller claimed she had acted in an administrative capacity, not in a judicial role.

“As the documents included in the grievance demonstrate, Judge Keller's statements before the federal court and her statements to the (conduct) commission were in complete contradiction of each other,” said Jim Harrington, executive director of the Texas Civil Rights Project. “The important thing is she was under oath for both.”
That thing about lying under oath.  That's what got Bill Clinton impeached.  It's serious stuff.
Not serious enough, though, I'd say if I were a betting man.  Not to pull the license of Sharon Keller.
The Chief Judge of the Court of Criminal Appeals.  Who's contemptuous of those who bring criminal appeals.  And who, in her own eyes, can do no wrong.  Because you know, it's always someone else's fault.  And she's entitled.  And innocent.  Unlike all those other folks who are innocent.  But not entitled.  Or something.
But, gee, you gotta hold out some hope.


Here's a link to the grievance, and here's one to the accompanying narrative that lays out the allegations in detail.


  1. From the article: ...she told Frontline that DNA proving innocence...

    Which is a misstatement at best. You can't prove innocence with DNA or anything else, the reason being that you cannot prove a negative. That being what it is, the failure of any judge to reopen or at least reexamine a case based on new evidence, especially DNA evidence (as opposed to testimony) is inexcusable, abhorrent behavior that society cannot tolerate in its legal system.

    From the article: Keller argued that she acted in her judicial capacity in refusing to keep the courthouse open and so is immune. Right. What she did is amoral, possibly immoral, but legal.

    From the article: But in front of the judicial conduct commission, Keller claimed she had acted in an administrative capacity, not in a judicial role.

    So then, what is the difference between acting in an administrative capacity and a judicial capacity in this case, and why would Keller lie about it? What's gained?

    From the article: That's what got Bill Clinton impeached.

    Buzzt! Wrong! Slick Willey was impeached because he was a popular Democrat president and the Stupid Party hated him for his popularity. Slick didn't handle the accusation (question? nah...) well. He should have told them to go pound sand where the sun don't shine, and he didn't. The Stupid Party used the 'lying under oath' bit to hammer him.

    I don't blame Slick for having trouble staying home nights. You ever take a good look at Hitlery? Can you imagine having something like that crawl into bed with you? Man... no, I don't blame President Clinton a bit.

  2. If you're acting as an administrator, then you aren't doing the judicial stuff (which is what the judicial conduct commission nominally looked at) wrong. If you're acting judicially, then you aren't liable civilly. She shifts roles to avoid any sort of blame/responsibility.