Tuesday, September 21, 2010

Dismiss Charges or Try Them Again? Keller Decision by October 8

They'll decide by October 8.
"They" is the three-judge panel comprising the Special Court of Review and charged with the next piece of the job of figuring out what to do with Sharon Keller.  The thing they'll decide is whether to grant her motion to dismiss the ethics charges against her.
If they deny the motion, she apparently (according to the Austin Statesman) gets a three-day trial on the merits of her appeal or the merits of the complaint or something at the end of November.  If they grant the motion, I suppose she does her victory dance, declares that she's been vindicated.  Then, armed with her newfound understanding that innocent people can be victimized by the system, she'll send a few more innocent ones to their deaths. 
Monday, the Court of Review heard oral argument from Chuck Babcock representing Keller and from Mike McKetta representing the Special Commission on Judicial Conduct - you know, the folks who warned us about Keller and Keller about . . . us? herself? Osama bin Laden?  It's hard to say.
Babcock wanted to go after David Dow, of course.  But as Grits explains, the panel wouldn't let him.
The justices shut down fairly quickly Keller's attorney Chip Babcock's efforts to reassess the merits of the case (he accused attorney David Dow of "lying" several times and declared at one point, "This is all a media creation based on a series of lies"). Instead the discussion mostly focused on whether the State Commission on Judicial Conduct improperly imposed an excessively lenient sentence on Judge Keller - giving her a "public warning" instead of subjecting her to "censure," which would have forbade her from sitting as a visiting judge after leaving office.
That sanction, the warning, was the focus.  Did the Commission have the authority to issue it?  If not, what then?  Grits again.
Keller's attorney argued that the justices should simply dismiss all charges and that the Commission's ruling was "void" because they'd overstepped their authority. But two of the three justices expressed reservations on that score. Justice Elsa Alcala pointedly asked Babcock what they should do if they found the Commission's decision was "erroneous" but not "void." He insisted only the latter result was acceptable, and I found myself wishing they'd asked the same question of Mr. McKetta. I asked him myself after the hearing, but he refused to comment, adding, "You're asking the right question, though."
But if they don't dismiss the charges, there's that hearing - and it's really a new trial.  From the Statesman.
Had the commission done its job properly and issued a censure, Babcock said, the three-judge panel would hear brief oral arguments and review the record of a trial held last year in San Antonio. But a warning is appealed only by holding a completely new trial — a needlessly expensive and time-wasting process, he said.

Alcala said she was sympathetic to the argument.

"We hear all the same evidence?" Alcala said. "You have to pay the lawyers' expenses; the citizens pay another fact-finder. It doesn't sound fair, and it doesn't feel fair."

But Mike McKetta, an Austin lawyer representing the commission, said the Legislature set up the process "for good or bad," adding that Keller's right to appeal the warning is protected by the arrangement.
If the argument is really about whether the case should be dismissed because the alternative is obeying a foolish law, McKetta's clearly got the (legally) winning side.  But if there's really an argument about whether the court should follow a silly but legally mandated procedure or just throw up its hands and dismiss the case, then they've already rejected the idea that being legally right is relevant.
Like I said, we'll know by October 8.
Grits suspects that they may send the case back to the Special Court for Judicial Conduct with orders that it impose a lawful punishment (to be followed by a full appeal, I suppose).  
Me, I wasn't there and probably shouldn't hazard a guess.
But I've yet to find that you lose money betting against the powerful.
From the moment Berchelmann declared that Keller was lying when she said she hadn't learned a lesson because she'd done nothing improper, it's been clear that she'd somehow walk off mostly exonerated.
You know about exoneration.  From the point of view of Keller and her supporters, that's getting away with it despite being guilty.
At least, it is when it's not her neck on the line.


  1. "if there's really an argument about whether the court should follow a silly but legally mandated procedure or just throw up its hands and dismiss the case, then they've already rejected the idea that being legally right is relevant"

    Not exactly, because part of the issue is whether the SCJC issued an unauthorized sanction, which IMO they probably did.

    If the SCJC had voted to "censure" instead of "warn," there would only be an "appellate-type review" (whatever that means; it was the phrase bandied about) by the three appointed justices instead of a full-blown "trial de novo." Normally after a "formal hearing" like Keller had, accused judges get a regular appellate-style review of the record, whereas if the Commission had sanctioned her without a formal hearing, she would get a trial de novo. McKetta represents the SCJC so he has to defend what they did, but they seem not to have followed their own policies. So the justices to some extent are going to have to do some construing to reach a solution, whatever decision they make. It's not clear what is the "legally mandated procedure" because the SCJC granted Keller what she described in her briefs as "lawless" leniency.

    None of that means you're wrong not to bet against the house, but I wouldn't at all say "they've already rejected the idea that being legally right is relevant," certainly not in the way, arguably, that Judge Berchelmann did.

  2. Yes, if the court determines that the sanction wasn't authorized, then it's not appealable and the panel has to decide what to do about it.

    But if the sanction was authorized and appealable, there's still the question of what to do next. Babcock's argument (drawing some sympathy from Alcala according to the Statesman), at least in part, seems to have been that the appeal which would follow is so expensive and foolish that they ought to just dismiss instead of holding it. Which is where I was starting from.

    I'm enough of a cynic to think that the answers to these questions may well have more to do with political (by which I don't mean partisan) predilection than with what the Law, such as it is, might actually dictate.