The Factual Allegations Against Keller

On Thursday, the State Commission on Judicial Conduct issued a “Notice of Formal Proceedings” to Sharon Keller, the Presiding Judge of the Texas Court of Criminal Appeals. The notice (which you can read here(pdf) courtesy of Defending People) contains 30 factual allegations and five charges, all related, of course, to the events of September 25, 2007, and the execution of Michael Richard that evening.

Judge Keller has the right to file a written response within 15 days. A public hearing will be conducted at some point. The FWST reports on the process:

In the proceeding, Keller, a Republican, has the right to counsel, to be confronted by her accusers, to introduce evidence and to examine and cross-examine witnesses.

After the proceedings, the commission may adopt, change or reject the findings and then issue conclusions.

The proceedings may end in dismissal, public censure or recommendation of removal. The decision is then sent to a review tribunal appointed by the Supreme Court of Texas. Only the review tribunal may remove the judge from the bench, and that decision could be appealed to the Texas Supreme Court.

Seana Willing, executive director of the judicial commission, said the Texas Supreme Court will appoint a special master to hear the matter. According to commission documents, the special master is a sitting or retired district or appellate judge.

The notice includes fairly detailed factual allegations. It asserts that Edward Marty, general counsel for the Court of Criminal Appeals, informed the CCA judges by e-mail that SCOTUS had earlier that morning announced it would review the constitutionality of lethal injection execution in the case of Baze v. Rees. Marty sent this e-mail at 11:29 a.m. The notice further alleges that at approximately 2:40 p.m., Marty informed the CCA judges by e-mail that Michael Richard’s lawyers, who were with Texas Defender Services, planned to file an application to stay his execution based on SCOTUS’s decision to review Baze.

Judge Keller, according to the notice, went home during the afternoon and did not return to the court that day. TDS called the clerk’s office at approximately 4:45 p.m., and requested that the court accept their filing a few minutes late. This request was based on a computer problem that TDS had encountered. Marty then contacted Judge Keller and asked her if the clerk’s office could stay open past 5:00 p.m. Then, according to the notice:

Judge Keller said “no” and asked “Why?” Mr. Marty replied: “They wanted to file something, but they were not ready.” Judge Keller again said “no.”

…At the time of her telephone conversation with Mr. Marty, Judge Keller knew and understood that (i) Mr. Marty’s call was about Mr. Richard, (ii) Mr. Richard was scheduled to be executed at 6 p.m. that evening, (iii) certiorari had been granted in Baze that morning, (iv) a filing by Mr. Richard’s lawyers based on the issue in Baze had been anticipated, (v) Mr. Richard’s lawyers wanted to file something with the CCA, (vi) Mr. Richard’s lawyers were not ready to file with the CCA by 5 p.m., and that (vii) Mr. Richard’s lawyers had requested that they be permitted to file after 5 p.m. In addition, Judge Keller knew that it had been common in the past to receive late pleadings on execution days after the clerk’s office closed, and she knew that the Execution-day Procedures called for the designated judge to remain available after hours to receive last-minute communications regarding the scheduled execution.

Judge Cheryl Johnson was the “designated judge” for Richard’s execution. Under the normal procedure, an application for a stay of execution would have been referred to her first, and then she would have contacted her fellow judges to request a vote. Judge Johnson remained at the court after 5:00 p.m. on September 25, 2007, in anticipation of a late filing.

The notice also alleges that the following morning, the CCA judges met for their weekly conference. Several judges expressed surprise that Richard’s lawyers had not filed anything based on Baze. Judge Keller did not inform her colleagues that Richard’s lawyers had contacted the court the previous afternoon to ask whether a filing would be accepted after 5 p.m.

The timing of the notice is interesting given Rep. Burnam’s impeachment resolution from earlier in the week. But I think the Commission had been investigating this matter well before this week. While the Commission may not have acted with any sense of urgency, I don’t know how they could have thrown this whole thing together in four days. It’s clear from the notice that witnesses have been interviewed and documents reviewed.

In any event, Burnam still plans to push impeachment. The Commission may take a long time to resolve the matter.

Burka says Keller is gone before her term expires. While I hope he’s right, at this point I’m not as confident. I’m not sure where the general public is on this.

I teach government part-time at the local community college. I discussed Burnam’s impeachment resolution in class on Tuesday night. None of my students even knew about Judge Keller’s actions on September 25, 2007. (It might be more fitting to say that none of my students knew who Judge Keller was.) After I explained what had happened, most of my students were either apathetic or supportive of Judge Keller. One student said, “They should give her a medal.” (He wasn’t joking.) SCOTUS did later uphold lethal injection, and Richard would have been executed at some point anyway, right? So what’s the big deal? That was the view of way too many students, who were seemingly oblivious to the fact that our state and federal constitutions require due process and fair procedures in every case. (I’ve got my work cut out for me.)

I don’t think Keller will be leaving office prematurely absent a ground swell of public pressure aimed at the Lege and the Commission. That’s why it is important to keep raising awareness about this situation. Keep this story alive.