Tuesday, October 12, 2010

BECAUSE, REALLY, WHAT DID YOU EXPECT - The Charges Dismissed Edition

Formally, it worked like this.
Sharon Keller, Chief Judge of the Texas Court of Criminal Appeals was brought up on charges of violating court rules and bringing disgrace on the court for her behavior on the day Michael Richard was executed.  (If you've somehow missed all this, you can get the much longer version of what I'm about to summarize in a couple of paragraphs by reading the posts you'll find here.)
After a multi-day hearing before Judge David Berchelmann, Jr., acting as a special master, Berchelmann said that Sharon Keller acted improperly but that because she had learned her lesson and wouldn't do it again, she shouldn't suffer any sanction.  Both Keller and the special counsel appealed.  Keller insisted that she certainly hadn't learned any lesson and would behave exactly the same way again because she was doing god's work seeing to it that Michael Richard got killed (OK, she didn't exactly say that last part, she just said she hadn't done anything wrong).  The special counsel said she deserved to be hammered, and, in any case, Berchelmann had no authority to discuss sanctions.
The appeal went to the Commission on Judicial Conduct which concluded that Keller acted improperly and issued a "Public Warning."  Keller thought the Commission should simply have dismissed the frivolous charges.  The special counsel thought the Commission should have called for her removal from office.
But it's more complicated than that, since it seemed that the Commission issued an improper sanction.  For reasons buried in the arcana of the Texas Government Code, when the Commission holds a formal hearing, as it did in this case, it may censure a judge, recommend the judge be removed from office, or dismiss the charges.  Public warnings are available sanctions only after an informal hearing.
Everyone appealed to a Special Court of Review, a three-judge panel appointed for the occasion by the Texas Supreme Court.  Keller filed a motion to dismiss all charges.  The special counsel asked that the Court of Review itself hold a new trial.
It was all posturing, of course.  Oh, the hoops had to be jumped through, the barriers hurdled.  But if we've learned anything by now, it's that the system protects its own.
What exactly did Keller do?
She didn't follow procedure.  When Michael Richard's lawyers called and asked if the clerk's office could stay open late, she should have made sure the judge on duty for Richard's case was informed.  She didn't bother.  There were things she could have done to facilitate a late filing.  She didn't bother.  Why bother after all?  She didn't like these last minute filings.  They interfered with the important business of getting on with executions.  
Yeah, there were procedures.  But they weren't written down, so who cares.  And even if there'd been a stay, he'd have been killed by now.  Anyway, his lawyers should have been smarter about what to do.
So grow up.  Suck it up.  Get over it.  She ran for judge, repeatedly, promising that she would vote with prosecutors.  She kept her word.
So the Special Court of Review issued it's opinion.  36 pages.  Most taken up with an extensive discussion of just how to interpret an ambiguity in the Texas Government Code that leaves open the question of whether the Commission actually had the authority to issue a Public Warning to Keller.
The conclusion:
In re Keller - Final Opinion                                                            
So what then?  Send it back to the Commission?  But they'd already decided she shouldn't get one of their available sanctions, so they must have decided she didn't deserve any of them.  (Of course, they decided that when they thought they could give her this lesser one, the one without bite.  Go now and sin no more.)  Hold that new trial?  But that would be proper only if the sanction were proper.  
Aw hell, just dismiss the charges.
In re Keller - Final Judgment                                                            
So the charges are dismissed, but without any ruling on the merits.
Let's review.  The Commission thought Sharon Keller acted unethically, but they decided to give her a virtual wrist slap rather than a serious punishment.  Because they had the authority to seriously punish, but not to give a virtual wrist slap, nothing they did counted.
It was, you see, a charade.
See, we can be serious.  We care about judicial integrity.  We mean it when we say our judges must adhere to the highest ethical standards.  That's why we have this whole process.  That's what the charade proceeding was about.  Integrity.  Honesty.  Sincerity.
Excuse me, but it's bullshit.
Sharon Keller is a little tinhorn tyrant.  She doesn't give that proverbial rat's ass about judicial integrity.  And the system of review - it cares about the appearance of it.
The old ones asked
Who will judge the judges?
We know the answer.  The judges will.  And they'll do a piss poor job of it.
But when you read the comments in the papers, you'll see that the people, at least some of them, are just fine.  Because Sharon Keller gave them what they wanted.  She sides with prosecutors.  Just as she promised.  She gets people executed.  
Really, isn't that enough?


  1. Scott Henson, at Grits for Breakfast, posted this comment, but put it at the end of the wrong post. I'm just copying it over, here.

    Cynicism is too often rewarded, as yours was in this case, but as my father often says, if wishes were horses, beggars would ride. You were right about how it turned out.

    The weird part is I'm pretty sure the SCJC was told at the closed session after the public arguments that they couldn't do the warning. I say this because the E.D. Seanna Willing came out that afternoon with a clarifying statement to the media that the board only had the three options, which I dutifully published along with others. In retrospect, it was clearly something that had come up that day or she wouldn't have felt the need to clarify it!

    From the appellate hearing it was pretty clear they'd done the wrong thing. Did the SCJC blow the case up intentionally? The ones I know on there aren't stupid people (including the county judge from my home county in East Texas), but they made a decision seemingly against advice of counsel to grant what Keller called "lawless" leniency. I blame them more than the judges after listening to the oral arguments. But I also don't understand why the judges couldn't just kick it back for re-sentencing.

  2. I doubt that the Commission intentionally imposed a sanction they knew they couldn't legally impose. More likely, they did the sort of thing too many judges do on a fairly regular basis. They decide what feels right and if it doesn't strike them as outrageously improper, they do it. Sometimes they do it even when it does strike them as altogether improper figuring that nobody will care enough to do anything about it. Or that they can fix it later.

    One time, when I was serving as a staff attorney to a trial judge, he was calculating how much to award an attorney as fees. He wanted to include fees for some things that the law clearly didn't allow an award for. I told him that and explained why. His response: "I don't care. It's how it should be. Let them reverse me if they want."

    Your last sentence, though, gets to the real point. The judges of the Special Court of Review didn't "kick it back for re-sentencing" because that would have allowed a sentence, and they wanted to get Keller off the hook.

    Maybe they just goofed. Maybe they just didn't care. Maybe they thought she behaved properly. Maybe they were protecting one of their own. Maybe they figured that Richard got what he deserved and the folks at TDS are so rotten that blowing them off was the right thing to do regardless of the rules, and why punish a judge for doing the right thing. What I know is that their explanation for why they couldn't send it back is illogical and stupid and completely unbelievable.

    That's all my cynicism speaking, of course, but it's been earned in the trenches.