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After Facing the Court of Public Opinion, Judge Sharon Keller Goes on Trial

"We close at five." 

For Texas Criminal Court of Appeals Judge Sharon Keller, those words could end up etched on the epitaph of her career, the Texas version of "Let them eat cake." After 15 years on the bench, Keller is on the other side of the dais today in San Antonio, where she's on trial for five judicial misconduct charges stemming from her decision not to keep the CCA open after hours to accommodate the defense team for convicted killer Michael Richard, who was scheduled to be executed that night, Sept. 25, 2007. 

Richard was convicted for the heinous 1986 rape and murder of a Houston-area nurse and mother of seven. But on the morning of his execution, the Supreme Court agreed to review Baze v. Rees, "a Kentucky case over whether unconstitutional pain and suffering was caused by a three-drug combination used in executions -- the same lethal cocktail used in Texas," according to the AP. The decision gave Richard's lawyers at the nonprofit Texas Defender Service a chance to stay his execution. They jumped into action, cobbling together a filing that included a motion to file a writ of prohibition, a petition to file a successor writ of habeas corpus, and a motion for a stay of execution before the court closed at 5 p.m. But thanks to what they claimed was a computer problem and the court's lack of e-mail capabilities, the TDS lawyers were going to be late. At 4:45pm, Ed Marty, general counsel of the Court of Criminal Appeals, dialed Sharon Keller, the court's presiding judge, making what Texas Monthly writer Michael Hall characterized as "the most infamous phone call in recent Texas history." Despite the CCA's informal tradition of allowing last-minute appeals on "death days," the by-the-book judge told Marty the court would be closing at its usual hour, cutting off Richard's chances for a reprieve in light of the high court's decision. The defense delivered its filings at 5:45pm, but it was too late. The execution proceeded, and Richard was pronounced dead on the table at 8:23pm.

When news of Keller's phone call hit the press, it generated an uproar over the conservative judge, whom opponents have nicknamed "Sharon Killer." Newspaper editorials around the country called for her removal, as did several groups of lawyers and judicial ethics experts. This February, the Texas Commission on Judicial Conduct announced formal proceedings against her, which began this morning in Bexar County. After the trial, the presiding judge will file a report to the CJC, which will have three options, according to Texas Monthly: "Dismiss the charges, give Keller a reprimand, or recommend that she be removed from office." 

The Texas Monthly story, The Judgment of Sharon Keller, provides a thorough backgrounder on the much-maligned judge. From her private school roots in Dallas to her ascent to the bench during the Bush administration, Keller had always been known as dedicated, thorough and exacting in her work, writes Hall. But she also gained a reputation for being very "pro-prosecutor," as she once described herself, which meant "seeing legal issues from the perspective of the state instead of the perspective of the defense." She would go on to issue a number of controversial decisions, including several death penalty cases, and continued in her entrenched, pro-prosecutor stance. Hall quotes her again as saying, "The court, as it existed in the late 1980s and early 1990s, took every opportunity to change established law to benefit defense attorneys. All we have done in the last few years is to fix those mistakes."

Would the Supreme Court have granted the stay if the CCA had acted on it? No one will ever know, but two days later, TDS lawyers for Carlton Turner, the next inmate scheduled for lethal injection, filed a motion for a stay on the same Baze issue with the CCA, which denied it by a vote of 5-4. Then they filed it with the U.S. Supreme Court, which granted it, halting his execution.

Stay tuned to Tex Parte, for updates on the Keller case. While some see it as a political witch hunt to oust a conservative judge, others see it as a corrective to an unjust system. But keep in mind that, whatever happens to Keller herself -- and it could take a while, according to Texas Lawyer -- the "We close at five" fiasco is unlikely to alter the state of the death penalty in Texas. As Hall sums it up in his piece, "Keller was elected by Texans who are in fact not at all tired of the death penalty, who believe that if you kill someone, you deserve the ultimate punishment. Keller, the kind, decent, implacable face of the state criminal justice system, is proud to give it, with no compromise, no doubt, and no mercy."

Posted by Laurel Newby on August 17, 2009 at 03:40 PM | Permalink | Comments (1)

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