| Texas Court of Criminal Appeals Presiding Judge Sharon Keller faces possible removal from office for her alleged "willful and persistent conduct" in failing to follow CCA execution-day procedures in 2007.
On Feb. 19, the State Commission on Judicial Conduct issued a Notice of Formal Proceedings against Keller in connection with the case of Michael Richard, who was executed by the state on Sept. 25, 2007. The possible outcomes of the formal proceedings are 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, says Seana Willing, the commission's executive director.
Willing says the commission decided in December 2008 to initiate the formal proceeding after investigating numerous complaints, including several signed by hundreds of people. The commission has retained John J. "Mike" McKetta, a shareholder in Graves, Dougherty, Hearon & Moody in Austin, as its special counsel for the public hearing in Keller's case, Willing says.
Keller has retained Charles "Chip" Babcock, a partner in Jackson Walker in Dallas.
A special master appointed by the state Supreme Court will preside over the hearing and make recommendations to the commission, which will decide what action to take, Willing says.
Keller will have an opportunity to file a written answer to the commission's charges before the hearing is scheduled, Willing says. The Notice of Formal Proceedings indicates the answer must be filed within 15 days after service of the notice upon Keller.
The judicial conduct commission's Notice of Formal Proceedings includes the following allegations: Richard was scheduled for execution on Sept. 25, 2007. At about 9 a.m. on Richard's execution day, the U.S. Supreme Court agreed to hear arguments in Baze v. Rees to determine whether Kentucky's method of execution by lethal injection constituted cruel and unusual punishment. Based on the high court's decision to hear Baze, Richard's lawyers began working on a petition requesting a stay to present to the CCA. Edward Marty, the CCA's then-general counsel, sent an e-mail to all the judges on the court at about 2:40 p.m. that day to notify them that he had heard from the Harris County District Attorney's Office that Richard's attorneys planned to file a writ of prohibition and a subsequent writ of habeas corpus based on the issue in Baze. Keller left her chambers to go home to meet a repairman on the afternoon of Sept. 25, 2007 — the day of Richard's execution — and did not return to the court that day. After experiencing computer problems, Richard's lawyers called the CCA clerk's office at about 4:45 p.m. that day and requested that it remain open a few minutes late to accept their filing. [See "Out of Time: The Last-Day Legal Battle Over the Execution of Michael Wayne Richard," Texas Lawyer, Nov. 19, 2007, page 1. ]
According to the commission's notice, there is disagreement about what Keller was told about the request Richard's lawyers made. A footnote in the notice indicates Marty recalls telling Keller "they wanted the Court to stay open" or "they want to hold the court open," but Keller claims Marty referred to the clerk's office, not the CCA, and that he asked her whether the clerk's office stayed open past 5 p.m.
Willing says, "Everyone we talked to talked about the court" closing. Keller "made the distinction that she was talking about the clerk's office."
Keller declines comment about the commission's action. But Babcock, her attorney, says, "It's certain from Judge Keller's point of view that the question posed to her by the general counsel was whether the clerk's office would stay open past 5."
Marty, who retired from the CCA in 2008, could not be located for comment.
Babcock says that when an execution is imminent, the CCA always has assigned a judge to the case to hear motions filed after hours. Texas Rule of Appellate Procedure 9.2(b) provides for after-hour filing with a judge, Babcock says. The Texas Defender Service lawyers representing Richard knew about the rule and had invoked that rule in a case in the past, he says.
The judicial conduct commission's notice alleges that Richard's lawyers called the CCA clerk's office but does not mention that they tried to call a CCA judge.
The commission makes the following allegations in the notice: Keller knew that CCA Judge Cheryl Johnson was the designated judge in charge of Richard's case and disregarded the CCA's execution-day procedures by not relaying to Johnson all communications about that case. Johnson and the other judges who remained late at the CCA that day were unaware of the calls made by Richard's lawyers. During the CCA's weekly conference on Sept. 26, 2007, Keller did not disclose to the other judges that Richard's lawyers had called to ask about an after 5 p.m. filing.
Johnson did not return a telephone call seeking comment before presstime on Feb. 19.
Jim Marcus, who served as executive director of the Texas Defender Service from 1997 to 2006, says he has read the judicial conduct commission's Feb. 19 Notice of Formal Proceedings and its chronological factual allegations are "similar to what folks [from TDS] explained to me had happened."
But Marcus notes that, according to the commission's notice, Keller left the courthouse the afternoon of Sept. 25, 2007, even though the U.S. Supreme Court had agreed to hear Baze , which involved an issue Richard's lawyers might raise. "That shows an indifference to a very major legal development in a court that is superior," maintains Marcus, now an adjunct professor at the University of Texas School of Law and co-director of the law school's Capital Punishment Clinic.
Marcus says he suspects some of his former colleagues at TDS may eventually have to testify in any formal proceedings held by the judicial conduct commission. David Dow, the litigation director at TDS and the lead lawyer on Richard's case, and TDS executive director Andrea Keilen each did not return a telephone call before presstime. Greg Wiercioch, a TDS senior staff attorney who also represented Richard, also did not return a telephone call.
The commission's notice lists five charges specifically related to Sept. 25, 2007:
• Keller's willful and persistent failure to follow the CCA's execution-day procedures constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge.
• Keller's willful and persistent 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 commission alleges that Keller's conduct violated provisions of the Texas Constitution and the Texas Code of Judicial Conduct. [See the State Commission on Judicial Conduct's notice of formal proceedings.]
State Rep. Lon Burnam, D-Fort Worth, one of the people who filed a complaint against Keller with the judicial conduct commission regarding Richard's case and who filed a House resolution, H.R. 480, on Feb. 16 seeking to impeach her, says the commission's action "represents a step in the right direction." But Burnam says the commission should have done something a year ago.
"Certainly, we want them to act in a cautious and deliberative manner, but all the facts were known over a year ago," Burnam says. Keller "has continued to serve on the bench and has tainted the entire judiciary with her presence."
But Marcus says there is a chance the judicial conduct commission's Notice of Formal Proceedings will slow the momentum of the impeachment bill because, in deference to the judicial conduct commission, lawmakers may not act.
Willing says the commission staff immediately began investigating the complaints that it received between October 2007 and January 2008. However, Willing says the commission meets only six times a year and considers up to 200 cases at each meeting.
After deciding in December 2008 to initiate formal proceedings against Keller, the commission asked the staff to "tie down" some additional evidence, Willing says.
Babcock says Keller faces a big hurdle before she can respond to the commission. "She has to figure out how she's going to pay for her defense," he says.
In 2006, Babcock represented state Supreme Court Justice Nathan Hecht in a successful appeal of the judicial conduct commission's public admonition of Hecht for publicly speaking out in support of Harriet Miers' nomination to the U.S. Supreme Court in 2005. Miers, now a partner in Locke Lord Bissell & Liddell in Dallas, eventually withdrew her name from consideration. In December 2008, the Texas Ethics Commission fined Hecht $29,000 after finding he violated state election laws by accepting and not reporting as a political contribution more than $100,000 in free legal services provided by Jackson Walker. On Jan. 27, Hecht appealed the ethics commission's finding to the 250th District Court in Austin.
Babcock says he is confident that the facts are on Keller's side with regard to the judicial conduct commission's charges but that she "has to quickly figure out some arrangement" for paying his firm so that "she does not find herself in trouble when the case is over."
