Today, State Rep Lon Burnam of Fort Worth sent a judicial complaint against Judge Sharon Keller to the State Commission on Judicial Conduct. He is the second state legislator to file or sign on to a judicial complaint against Keller. Rep Harold Dutton was one of the 20 lawyers who signed the first complaint last week.
In other developments, the Waco Herald-Tribune wrote in an editorial today that "if Keller cannot be removed from her position, she should be disciplined for her outrageous behavior".
The Houston Chronicle Editorial Board published a strongly worded editorial yesterday calling for removal of Chief Justice Sharon Keller from the Texas Court of Criminal Appeals saying "since she will not face the voters until 2012, the miscarriage of justice perpetrated by Chief Justice Keller can only be remedied by a "recommendation by the Judicial Conduct Commission to the Texas Supreme Court that she be removed from office".
More than 600 people have signed on to our judicial complaint from general public members that we will file on Oct 30. You can sign too!
LON BURNAM
DISTRICT 90 • FORT WORTH
October 15, 2007
State Commission on Judicial Conduct
PO Box 12265
Austin, TX 78711
Dear Members of the Commission:
I am writing to file a complaint with the Commission concerning the actions of Judge Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, on the evening of September 25. According to several news accounts, Judge Keller refused to keep her office open later than 5pm to receive the pleading of Michael Richard who was killed by lethal injection later that night. It is my opinion that her actions were unprofessional and unethical and constitute judicial misconduct. I urge you to take prompt and appropriate disciplinary action against Judge Keller,
which should include serious consideration of removal from office.
Judge Keller's actions resulted in the loss of constitutional rights of Mr. Richard. Further, her actions have embarrassed the state of Texas and cast severe doubt on the impartiality of the Court of Criminal Appeals. The public's perception of the fairness of the courts is vital to the maintenance of the rule of law. If disciplinary action is not taken against Judge Keller, this perception will be irreparably harmed.
It is simply unconscionable and unacceptable for any officer of the court to close the doors of the court when a pleading for a man's life is known to be on the way. I urge you to take swift and decisive action to repair the damage done by Judge Keller to the integrity of Texas courts.
Maybe Texas Court of Criminal Appeals Presiding Judge Sharon Keller won't get to complete her full term on the Texas Court of Criminal Appeals. She is not up for re-election until 2012, but her term in office could be shortened because of her unethical conduct.
Today, twenty lawyers from across Texas filed a formal judicial conduct complaint against Keller, accusing her of violating the constitutional due process of a condemned man. The complaint will be investigated by the State Commission on Judicial Conduct, which has the power to discipline Keller, including removing her from office.
The complaint to the State Commission on Judicial Conduct says Keller improperly cut off appeals that led to the execution of Michael Richard on Sept. 25 despite the fact the U.S. Supreme Court earlier in the day had accepted a case on the propriety of lethal injection, which had direct implications for Richard's execution.
"Judge Keller's actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution," the complaint states. "Her actions also brought the integrity of the Texas judiciary and of her court into disrepute and was a source of scandal to the citizens of the state."
And more:
Judge Cheryl Johnson was the appeals court jurist in charge of Richard's case. She said she never heard anything about the clerk's office closing off the appeal until the following day.
"I wasn't consulted," Johnson said. "I have been here almost nine years. My understanding was that on a death case we were here up until the time of the execution and we would take filings that came in up until 6 o'clock and the execution is underway."
There will be a press conference at 1:30 PM on Wednesday, Oct 10, in front of the Texas Court of Criminal Appeals to announce the filing of a complaint with the State Commission on Judicial Conduct against Texas Court of Criminal Appeals Presiding Judge Sharon Keller.
Jim Harrington, director of the Texas Civil Rights Project and Scott Cobb of Texas Moratorium Network, will be present, along with others.
The Houston Chronicle has reported about how Keller refused to accept a late appeal from a person about to be executed, saying "We close at 5".
Texas Court of Criminal Appeals judges were ready to work late the evening Michael Richard was executed, expecting an eleventh-hour appeal that - unbeknownst to them - Presiding Judge Sharon Keller refused to allow to be filed after 5 p.m.
That's according to interviews with two judges, one of whom stayed until 7 p.m. on Sept. 25 and one who left early but was available and said others stayed. They expected Richard's lawyers to file an appeal based on the U.S. Supreme Court's decision earlier in the day to consider a Kentucky case challenging the constitutionality of lethal injection.
"There were plenty of judges here, and there were plenty of other personnel here," said Judge Cathy Cochran, who had to go home early that day but was available. "A number of judges stayed very late that evening, waiting for a filing from the defense attorney."
Cochran said at the least, a decision should have been made by the full court on whether to accept the appeal: "I would definitely accept anything at any time from someone who was about to be executed."
Judge Paul Womack said, "All I can tell you is that night I stayed at the court until 7 o'clock in case some late filing came in. I was under the impression we might get something. ... It was reasonable to expect an effort would be made with some haste in light of the Supreme Court" action. He added, "It was an important issue. I wanted to be sure to be available in case it was raised."
Keller didn't consult the other judges about taking the appeal after 5 p.m. and said she didn't think she could have reached them. She said, however, that Judge Cheryl Johnson, who was assigned the case, was at the court. Johnson didn't return a telephone call.
Keller voiced no second thoughts more than a week after her decision.
"You're asking me whether something different would have happened if we had stayed open," Keller said, "and I think the question ought to be why didn't they file something on time? They had all day."
David Dow, an attorney in the case who runs the Texas Innocence Network at the University of Houston Law Center, called her statement "outrageous," noting that lawyers had to decide legal strategy and then craft a filing about why the case before the U.S. Supreme Court applied to Richard's arguments.
The reason behind the request for the delay was a severe computer problem, Dow said. He said he told the court clerk about the problem. Keller said the lawyers didn't give a reason.
Dow also said the court will not accept a filing by e-mail. If it did, he said, lawyers could have met the 5 p.m. deadline once they beat their computer problem, because printing the filing took extra time. The lawyers needed about another 20 minutes.
Jim Harrington, director of the Texas Civil Rights Project, said he was thinking about filing a complaint with the Texas State Commission on Judicial Conduct about Keller.
"When I saw that, I think I would just describe my reaction as 'stunningly unconscionable,' " Harrington said of her refusal. "There has to be some kind of accountability for this."
When the state takes the life of a condemned criminal, it must do so with a sense of sobriety commensurate with its grave responsibility. Hastening the death of a man, even a bad one, because office personnel couldn't be bothered to bend bureaucratic procedure was a breathtakingly petty act and evinced a relish for death that makes the blood of decent people run cold.
was re-elected to the all-Republican court last year and won't face the voters again until 2012. Although races for this court normally generate little public attention, the furor could give Democrats some ammunition.
It was interesting to note that Judges Cathy Cochran and Paul Womack, who will be on the ballot next year, were complaining publicly about Keller's unilateral decision.
Cochran and Womack should probably do more than just complain publicly about Keller. They may be obligated by judicial ethics to file a complaint against Keller. The Texas Code of Judicial Conduct says that:
a judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action.
The Code further defines the word shall by saying that '"Shall" or "shall not" denotes binding obligations the violation of which can result in disciplinary action.'
So, if Womack and Cochran or other CCA judges who know what happened, do not file a complaint against Keller with the State Commission on Judicial Conduct, then they themselves could be disciplined, if someone files a complaint regarding their failure to act against Keller.
Certainly, their failure to act, which would constitute a failure to uphold the integrity of the Court, could become a campaign issue.
Sharon Keller thinks that failing to impose capital punishment is "a human rights violation". At least that is what she told the Houston Chronicle in 1994.
Her peculiar understanding of human rights may explain why she refused to accept a late appeal from Michael Richard on the day of his execution in which he was asking for a stay while the U.S. Supreme Court considers whether the drugs used in lethal injections violate the 8th Amendment's protection against cruel and unusual punishment. She may have thought she was exercising her own human right to impose capital punishment and that trumped whatever constitutional rights Richard might have had.
In 2001, the Houston Chronicle published an article in which it quoted from a 1994 interview with Sharon Keller when she first ran for a position on the Court of Criminal Appeals: :
During her campaign to replace outgoing Judge Chuck Miller, Keller criticized the sitting court as too lenient and openly displayed her support for the death penalty.
In an opinion piece the Chronicle published a month before Keller was elected, she called the failure to impose capital punishment on convicted murderers "a human rights violation -- particularly if we take into account the human rights that murderers violate when left alive to kill again."
Keller, a former appellate prosecutor for Dallas County, said in a recent interview that her strong views do not affect the way she decides capital cases.
"We look at the arguments of both parties," she said.
Of course, now we know that she meant she looks at the arguments of both parties unless they arrive twenty minutes after 5 PM on the day of an execution, then she doesn't look at anything.
Judge Sharon Keller should be impeached and removed from office for her conduct regarding the execution of Michael Richard. She closed the court's office at 5 PM without consulting any of the other judges on the Texas Court of Criminal Appeals, even the one other judge who was assigned to handle any late motions in Richard's case, Judge Cheryl Johnson. Does anyone know how impeachment of judges works in Texas? It might be that to begin her removal from office, someone should file a complaint with the State Commission on Judicial Conduct.
As long as Keller is in office, the people of Texas can not be sure that justice is being done properly.
The Chi ruling came as new details emerged about the Texas court's refusal to stay open past 5 p.m. on Sept. 25 so lawyers could file an appeal on behalf of death row inmate Michael Richard. The Supreme Court had accepted the lethal injection case earlier that day, and Richard's lawyers argued that the extra time was needed to respond to the new circumstances and to address computer problems that delayed the printing of Richard's motion.
Richard was executed later than night, and news of the court's refusal appeared in newspapers, and critical editorials, around the world.
Last week, court personnel declined to say who made the decision to close at 5 p.m.
It was revealed Tuesday that the decision was made by Presiding Judge Sharon Keller without consulting any of the court's eight other judges or later informing them about the decision - including Judge Cheryl Johnson, who was assigned to handle any late motions in Richard's case.
Johnson, who learned about the request to stay open past 5 p.m. in an Austin American-Statesman story, said her first reaction to the news was "utter dismay."
"And I was angry," she said. "If I'm in charge of the execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings."
Johnson said she would have accepted the brief for consideration by the court. "Sure," she said. "I mean, this is a death case."
Judge Cathy Cochran said the Richard case raised troubling questions.
"First off, was justice done in the Richard case? And secondly, will the public perceive that justice was done and agree that justice was done?" Cochran said. "Our courts should be open to always redress a true wrong, and as speedily as possible. That's what courts exist for."
At least three judges were working late in the courthouse that evening, and others were available by phone if needed, court personnel said.
None of the judges was informed of Richard's request by Keller or by the court's general counsel, Edward Marty, who had consulted with Keller on the request.
Keller defended her actions, saying she was relating the court's longstanding practice to close on time.
"I got a phone call shortly before 5 and was told that the defendant had asked us to stay open. I asked why, and no reason was given," Keller said. "And I know that that is not what other people have said, but that's the truth. They did not tell us they had computer failure.
"And given the late request, and with no reason given, I just said, 'We close at 5.' I didn't really think of it as a decision as much as a statement," Keller said.
Keilen, whose organization also handled Richard's appeal, said court clerks were informed about the computer problems.
The clerk's office, asked whether Keller was told of the malfunction, referred questions to Judge Tom Price, who is in charge of court personnel. Price did not respond, and calls to other judges were not returned Tuesday.
