Special court throws out Keller rebuke, ending case

A special court of review Monday threw out an ethics rebuke given to Presiding Judge Sharon Keller for closing the Court of Criminal Appeals at 5 p.m. despite knowing that lawyers wanted to file an appeal for an inmate facing imminent execution in 2007.

Ruling not on the merits of the case but on the way it was handled, the three-judge panel also threw out the charges that accused Keller of violating her duty as a judge and prohibits the State Commission on Judicial Conduct from refiling the accusations.

The commission cannot appeal Monday’s ruling.

“This is the end of the road, and it’s been a long road,” said Chip Babcock, Keller’s lawyer. “Judge Keller was extremely gratified by the decision and relieved that this ordeal is finally over.”

Bringing the high-profile case to a swift and stunning end, the review court said the commission committed fatal errors that doomed its punishment of Keller, issued in the form of a July “public warning” that chastised the state’s highest criminal judge for violating court procedures and bringing discredit to the judiciary.

In essence, commissioners chose the wrong punishment, opting for a warning when state law and the Texas Constitution limited their options to a “censure,” a more serious penalty, the court ruled.

The judges said they did not address the merits of the charges against Keller but based their decision solely on the errors committed by the commission.

“Sharon Keller may have got off on a technicality, but a majority of the State Commission on Judicial Conduct found that she did not accord a person about to be executed with ... the right to be heard according to law,” said Scott Cobb , president of the Texas Moratorium Network , an anti-death penalty group.

Her actions violated “accepted principles of right and wrong,” Cobb said.

Keller’s handling of death row inmate Michael Richard’s case drew international condemnation and confirmed, for many death penalty opponents, the image of Texas as a bloodthirsty place with a kill first, ask questions later mentality.

Keller, however, steadfastly maintained that she did nothing wrong on Sept. 25, 2007 — execution day for Richard, a high school dropout convicted of raping and murdering a Hockley mother of seven grown children.

That morning, the U.S. Supreme Court surprised most legal observers by accepting a Kentucky case challenging lethal injection as cruel and unusual punishment.

Richard’s lawyers with the nonprofit Texas Defender Service began work on motions asking Keller’s court for a stay of execution until the Supreme Court ruled in the Kentucky case.

As the Texas court’s 5 p.m. closing time neared, Richard’s lawyers asked for more time to finish their motions. Keller refused, and Richard was later executed.

The Commission on Judicial Conduct, after investigating dozens of complaints, charged Keller in February 2009 with improperly thwarting Richard’s access to the courts.

The charge added that Keller violated court procedures by unilaterally acting on Richard’s request instead of referring it to Judge Cheryl Johnson, who was assigned to handle all Richard matters that night.

Keller argued that defense lawyers were to blame for the missed appeal because they failed to diligently work on his petitions and did not pursue every available avenue to file motions after 5 p.m.

Keller’s argument received a significant boost from District Judge David Berchelmann Jr ., who was assigned to recommend a course of action for the judicial conduct commission.

After a four-day hearing in August 2009, Berchelmann suggested that Keller should not be removed from office or reprimanded, concluding that although she made several questionable decisions on the night of Richard’s execution, his lawyers bore most of the blame for the missed appeal.

Last June, the commission met in private to consider Keller’s fate. Commissioners had three choices — dismiss the charges, censure Keller or recommend that she be removed from office.

Instead, they issued the public warning, raising confusion about the next step in the process, Keller’s appeal to a special review court of three appellate justices chosen at random by the Texas Supreme Court.

Censures are handled like a typical appeal, with the review court hearing oral arguments, reading briefs and reviewing the trial record. But legally, public warnings are appealed by holding a new trial.