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Texas Court of Criminal Appeals Presiding Judge Sharon Keller alleges in her answer to the State Commission on Judicial Conduct’s Notice of Formal Proceedings that she never was told that Michael Richard’s attorneys were having computer problems that delayed them in filing for a stay of execution on Sept. 25, 2007, the day Richard was executed.
But Keller, a CCA judge since 1994 and the court’s presiding judge since 2000, alleges in the March 24 answer she filed with the commission that Richard’s attorneys at the Texas Defender Service (TDS) did not need a computer to prepare and timely file a motion for stay after the U.S. Supreme Court granted a petition for a writ of certiorari in Baze v. Rees to determine whether the chemicals used in Kentucky’s lethal injection method of execution constituted cruel and unusual punishment — an issue Richard sought to raise with the CCA. Keller contends in the answer that Richard could have hand-written a motion for stay and the court would have accepted it, or he could have filed an application for a writ of habeas corpus in the trial court. [See Keller's answer.]
“They didn’t need a computer for this,” says Charles “Chip” Babcock, Keller’s attorney and a partner in Jackson Walker in Dallas.
Babcock says, “Judge Keller should not be in this position. I cannot imagine why the commission voted to have formal charges brought against her.”
Seana Willing, the judicial conduct commission’s executive director, did not immediately return a telephone call for comment.
The commission issued its Notice of Formal Proceedings against Keller on Feb. 19 in connection with the case of Richard, whom the state executed on Sept. 25, 2007. As alleged by the commission in its notice, Richard’s attorneys called the CCA clerk’s office at about 4:45 p.m. on Sept. 25, 2007, to report they were experiencing computer problems and to request that the office remain open a few minutes late to accept their filing but were told that the office would close at 5 p.m. Keller, who was away from the CCA that afternoon, refused to keep the office open, as alleged in the commission’s notice.
In its notice, the commission lists the following five charges with regard to Richard’s case.
• Keller’s failure to follow the CCA’s execution-day procedures constituted willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge.
• Keller’s failure to follow the CCA’s execution-day procedures constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice.
• Keller’s conduct did not accord Richard access to open courts or the right to be heard according to law. Keller’s conduct constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge.
• Keller’s conduct did not accord Richard access to open courts or the right to be heard according to law. Keller’s conduct constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice.
• Keller’s willful and persistent failure to follow the CCA’s execution-day procedures constitutes incompetence in the performance of duties of office.
The possible outcome of the formal proceedings is dismissal of the complaints against Keller, a public censure of her or a recommendation by the commission to the Texas Supreme Court that she be removed from office. [See “Formal Proceedings Initiated Against Sharon Keller,” Texas Lawyer, Feb. 23, 2009, page 1.]
But Keller alleges in her answer that to her knowledge, the CCA clerk’s office has never stayed open beyond 5 p.m. on an execution day, “which does not mean that after hour filings were not allowed.” TDS, in another death penalty case, filed a motion to stay an execution with the CCA after hours — an exhibit attached to Keller’s answer shows that TDS and Sergi & Associates of San Marcos filed a successor application for writ of habeas corpus and stay of execution for Jose Alfredo Rivera at 6:25 p.m. Aug. 6, 2003, with the CCA.
David Sergi, principal in Sergi & Associates, says TDS filed the writ application and stay with the CCA. Rivera was granted the stay, he says.
Neal Manne, a partner in Susman Godfrey in Houston who serves as counsel for TDS on a pro bono basis, says, “TDS does not think it’s appropriate for Judge Keller to try to defend herself by attacking TDS.”
Manne says that TDS attorneys, when they contacted the CCA about keeping the clerk’s office open to accept their filing on the day Richard was to be executed, were told “not to bother coming.”
Keller alleges in her answer that the charges the commission brought against her are unconstitutional because she has been denied the right to counsel.
As noted in the answer, the judicial conduct commission has denied Keller’s request that the commission appoint Jackson Walker as her counsel and pay the firm’s “reasonable fees.” Keller further noted in her answer that the Texas Ethics Commission, citing its own rules, refused to answer her recent questions as to whether Jackson Walker could defend her on a pro bono basis, reduced-fee basis or through an alternate billing arrangement, such as a fixed fee.
Keller alleges in her answer, “The net effect is that these two arms of Texas government are forcing Respondent to an election: either defend herself pro se or risk a financially ruinous legal bill to defend against these charges which are without merit.”
