When the Texas Legislature convenes in January, it should take action to remove Sharon Keller from the Texas Court of Criminal Appeals for willful neglect of duty. We are still waiting for a report from the State Commission on Judicial Conduct regarding the reprehensible actions of Keller, presiding judge of the Texas Court of Criminal Appeals. The last communication we received from the Commission was that their investigation was nearing completion. That was in September. There were several judicial complaints filed against Keller (scroll down for list).
We do not know what, if any, action the Commission will take to discipline Keller for her violation of the policies of the Court of Criminal Appeals on Sept 25, 2007, when she neglected to inform the duty judge that the lawyers for Michael Richard wanted to submit an appeal 15 minutes after the end of the day's office hours. Keller said, "we close at 5" and refused to accept the appeal. Richard was executed later that night. In truth, the Court does not "close". Justice is always open. Keller knew it and yet she obstructed justice by her actions. The Commission could recommend that the Texas Supreme Court removes her from office. However, there are two other methods that could be used to remove Keller from her position.
The Texas Constitution Article 15, Section 2 says that "impeachment of the Governor, Lieutenant Governor, Attorney General, Commissioner of the General Land Office, Comptroller and the Judges of the Supreme Court, Court of Appeals and District Court shall be tried by the Senate."
Before such a trial can take place, the Texas House has to impeach the officer to be tried. "Impeachment" is the formal charging of misconduct.The actual removal of office would be by the Senate's trial. Even if the Senate did not vote to remove her, being officially indicted by the Texas House could be encouragement enough to convince her to resign.
Texas Monthly's Mike Hall raised the idea of impeachment in the magazine's December 2007 issue:
If the commission doesn't act quickly, we'll have to wait until January 2009, when the Legislature-which has the power to oust high judges-reconvenes, or worse, 2012, when Keller is up for reelection. The fact is, we need to do it now. Impeach Sharon Keller.The Texas Constitution also says in Article 15, Section 8 that judges can be removed for causes that are not sufficient for impeachment:
The Judges of the Supreme Court, Court of Appeals and District Courts, shall be removed by the Governor on the address of two-thirds of each House of the Legislature, for willful neglect of duty, incompetency, habitual drunkenness, oppression in office, or other reasonable cause which shall not be sufficient ground for impeachment; provided, however, that the cause or causes for which such removal shall be required, shall be stated at length in such address and entered on the journals of each House; and provided further, that the cause or causes shall be notified to the judge so intended to be removed, and he shall be admitted to a hearing in his own defense before any vote for such address shall pass, and in all such cases, the vote shall be taken by yeas and nays and entered on the journals of each House respectively.
The Houston Chronicle's R.G. Ratcliffe wrote an article on Dec 13, 2007 titled "Judge in death case violated policies: Keller, who shut out appeal, says new written rules reflect unwritten ones on that day". He wrote that "Texas Court of Criminal Appeals Presiding Judge Sharon Keller apparently violated court policies for handling death penalty cases when she closed the court clerk's doors on Michael Richard's efforts to file a last-minute appeal before his execution."
Ratcliffe's reporting seems to have uncovered the smoking gun admission that Keller broke the CCA's policies in effect on the day of Richard's execution. He should be given a journalism award for his work. Congratulations to him on his idea of asking for the policies in effect on Sept 25. His article left me wanting to see the entire text of the policies myself, so I submitted my own PIR to obtain the letter Keller wrote to Radcliffe.
Reading the entire text of the policies makes it very clear that Keller violated the rules by not contacting the assigned duty judge about the request by Richard's lawyers to file a late appeal.
I sent a copy to the State Commission on Judicial Conduct of Keller's letter to Ratcliffe and of the document "Execution-day Procedures".
Read the policies and judge for yourselves if she violated them. Here is a link to a pdf of the document we received from the Court. The newly written down text of the unwritten policies in effect on Sept 25, 2007 is below:
Below are some of the people who filed complaints last year against Keller with the Commission on Judicial Conduct.
A designated judge will be assigned to be in charge of each scheduled execution. Generally, judges will be assigned in rotating seniority order by the general counsel. Exceptions in order of assignment will be made for prior involvement in the death-row inmate's case as trial judge, prosecutor, or defense counsel, or for recusal. Judges may also trade assignments, with notice to all other judges and general counsel, for other good cause such as anticipated absence from court on the day of execution. Unless the Court has been informed by defense counsel that no pleadings will be filed, or pleadings have been filed and ruled on, general counsel shall be present at the Court on the date of the scheduled execution until the time of execution has passed. The assigned judge shall be present at the Court, or immediately available, on the date of the scheduled execution until the time of execution has passed. Support staff may be requested to remain, also, as needed.
All communications regarding the scheduled execution shall first be referred to the assigned judge. The term "communications" includes pleadings, telephone calls, faxes, emails, and any other means of communication with the Court. The assigned judge may call a special conference or gather votes by telephone, email, fax, or other form of communication.
If the communication includes a request for stay of execution, the assigned judge shall contact, by any reasonable means, the other members of the Court and request a vote on the motion to stay. Non-assigned judges will provide to the assigned judge an adequate means of contact. "Reasonable means" includes calling a special conference and contact by electronic communication.
* A group of about 1900 people signed a complaint sent to the Commission by Texas Moratorium Network.
Several newspapers also called for Keller to be removed from office, including the Houston Chronicle, which wrote on Oct 15, 2007:
* Twenty lawyers represented by Jim Harrington of the Texas Civil Rights Project, including:
o Dick DeGuerin
o Chuck Herring
o former State Bar President Broadus Spivey
o University of Houston law professor Mike Olivas
o former appellate Judge Michol O'Connor
o State Representative Harold Dutton
* Harris County Criminal Lawyers Association, signed by more than 130 lawyers and others, including:
o State Representative Dora Olivo
o State Representative Garnet Coleman
* National Association of Criminal Defense Lawyers
* Texas Criminal Defense Lawyers Association
* State Representative Lon Burnam
* State Representative Jessica Farrar
Judge Keller let her personal bias in favor of the death penalty trample the right of now-executed prisoner Michael Richard to access the courts and have due process. In doing so, she abdicated her role as the state's chief criminal justice to become its chief executioner.