The attorney defending Texas Court of Criminal Appeals Presiding Judge Sharon Keller against misconduct charges that could result in her removal from office on Friday accused the State Commission on Judicial Conduct of doing a poor job of investigating complaints against Keller in connection with a death-row inmate's case. "I think the commission has failed in every step of the way in this," Charles "Chip" Babcock, a partner in Jackson Walker in Dallas and Houston, said during an approximately five-hour hearing before the 13-member commission.
Babcock made his comments as the commission heard objections to the findings of a judge who served as special master in In Re: Sharon Keller. Judge David Berchelmann Jr., of San Antonio's 37th District Court, who heard testimony in the case during a four-day hearing in August 2009, recommended in findings submitted to the commission in January that Keller not be removed from the bench or reprimanded.
During Friday's hearing, Babcock urged the commission to follow Berchelmann's recommendations and dismiss the charges against Keller, whom he alleges has been the victim of a "pack of lies" that the Texas Defender Service told about what happened on Sept. 25, 2007, the day the state executed Michael Richard. But John J. "Mike" McKetta, the commission's special counsel in Keller, told commission members that Keller, as presiding judge of the state's top criminal court, is the "public face of the criminal justice system in the state of Texas."
McKetta, a shareholder in Austin's Graves Dougherty Hearon & Moody, said Keller violated the CCA's long-standing execution-day protocols when she did not refer communications about an imminent execution to CCA Judge Cheryl Johnson, who was assigned to handle that case. "She has violated a mandatory protocol, a duty of her office in one of the most time-sensitive and irreversible circumstances there can be, moments before a scheduled execution," McKetta said of Keller.
Babcock argued that the CCA did not have a written execution-day protocol that was mandatory on Richard's execution day. Instead, the court had an "oral tradition," he said. However, McKetta said Keller had testified that the oral procedures were the same as the written protocol the CCA adopted about two months after Richard's execution. Keller also testified that she knew the protocol was mandatory, McKetta said.
In February 2009, the judicial conduct commission opened formal proceedings against Keller in connection with events that occurred shortly before the state executed Richard for the 1986 rape and murder of Marguerite Dixon in her Hockley home. On the morning Richard was scheduled to die, the U.S. Supreme Court had granted a petition for writ of certiorari in a Kentucky case to consider whether the use of the chemicals in lethal injections administered in Kentucky constituted cruel and unusual punishment. TDS attorneys who represented Richard were trying to file a motion for stay of execution and an application for writ of prohibition raising the lethal injection issue. However, they did not file the documents with the CCA, because when asked whether the clerk's office would remain open to receive a late filing, Keller twice said "no."
At Friday's hearing, Babcock criticized the judicial conduct commission for basing its charges on "lies" that he alleged David Dow, the TDS litigation director and a professor at the University of Houston Law Center, told the news media regarding TDS' efforts to file documents on behalf of Richard on his execution day. Babcock alleged that TDS concocted a story that they had multiple computer crashes on that day as they were trying to get the documents to the CCA, that attorneys had called the court and pleaded with Keller to keep the clerk's office open but that she refused three times. The evidence shows TDS did not have computer problems that day, that no TDS attorney called the CCA and that Keller did not speak to anyone from TDS, he said.
Dow and Andrea Keilen, executive director of TDS, each did not return telephone calls seeking comment.
During an exchange with judicial conduct commissioner Tom Cunningham, a Houston attorney, Babcock said he did not believe the commission had given Keller a fair hearing. To which Cunningham responded, "Isn't it ironic that's what Mr. Richard was asking?" After hearing the arguments, the commission retired to begin deliberations. Seana Willing, the commission's executive director and the examiner in Keller, says the commission's options are to dismiss the charges, censure Keller or recommend to the Texas Supreme Court that she be removed from office.
This article first appeared on The Tex Parte Blog, the blog of Texas Lawyer