Sharon Keller: Gone baby gone
It is amazing what one editorial in the New York Times can do. The outrage of lawyers across the state and nation couldn’t awaken the Commission on Judicial Conduct from its long slumber in the case of Court of Criminal appeals presiding judge Sharon Keller. The protests of Texas media outlets couldn’t do it. Lon Burnam’s effort to impeach her couldn’t do it (although it did spur the Times to action). But the editorial in the Times on Thursday morning–after nearly a year and a half of inaction–produced an instant eight-page accusation against Keller from the Commission, based on her instructions to court personnel not to remain open to accept a likely last-minute appeal from lawyers for a Death Row inmate after the Court’s closing hour of 5 p.m. The inmate’s execution was carried out later that night.
Here are the charges against Judge Keller. I have removed boilerplate langauge, represented by ellipses:
1. Judge Keller’s willful and persistent failure to follow the Court of Criminal Appeals’ Execution Day Procedure on September 25, 2007, constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge….
2. Judge Keller’s willful and persistent failure to follow the Court of Criminal Appeals’ Execution Day Procedure on September 25, 2007, constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice….
3. Judge Keller’s conduct on September 25, 2007, did not accord Mr. Richard access to open courts or the right to be heard according to law. Judge Keller’s conduct constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as presiding judge….
4. Judge Keller’s conduct on September 25, 2007, did not accord Mr. Richard access to open courts or the right to be heard according to law. Judge Keller’s conduct constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice….
5. Judge Keller’s willful and persistent failure to follow the Court of Criminal Appeals’ Execution Day Procedure on September 25, 2007, constitutes incompetence in the performance of duties of office….
Stick a fork in her: She’s done. There is no way Keller can survive this. The statute governing the Commission on Judicial Conduct states:
A voluntary agreement to resign from judicial office in lieu of disciplinary action by the commission shall be public upon the commission’s acceptance of the agreement. A judge may ask the Chief Justice of the [Texas] Supreme Court for appointment of a special court of review. (There is no ordinary right of appeal.)
Keller has three choices: resign, be removed by the Commission, or be impeached. The odds against her serving out her term, which expires in 2012, are astronomical. My money is on resignation. The sooner the better.
Tagged: commission on judicial conduct, lon burnam, sharon keller
Emptyk says:
Paul, your reasoning here that one editorial in the Times caused the Commission to act is not logical. Mr. Burnam’s resolution coupled with a new Speaker and a strong minority of Democrats threatens the existence of the Commission on Judicial Conduct.
This action by the Commission was not a response to a reasoned appeal by the Times, but rather it responded to a principled act by Mr. Burnam. Mr. Burnam was the only member to vote against Tom Craddick for Speaker in 2003. That singular act, which also was a stand on principle, became emblamatic as Craddick’s tenure grew into a reign of chaos.
Other legislators have sent letters of protest about Judge Keller but Mr. Burnam conceived and took action in the only way to truly hold her accountable, by impeachment.
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lindy says:
Paul, this is posted on the Texas Moratorium site:
“Please be advised that on December 2-4, 2008, following three informal hearings that took place before it on June 18-20, 2008, August 13-15, 2008, and October 15-17, 2008, the Commission voted to initiate formal proceedings against the judge who was the subject of your complaint. This process involves a public trial before a Special Master appointed by the Texas Supreme Court, after which findings of fact will be presented to the Commission. You will be notified in writing of the date, time and location of this trial. Based on the Report from the Special Master, the Commission may vote to dismiss the case, issue a public censure, or recommend to the Supreme Court that the judge be removed from office.
In the event that removal is recommended, a seven-member Review Tribunal of appellate justices, also appointed by the Texas Supreme Court, will review the record of the public trial and the hearing before the Commission to determine if the judge should be removed from office. The Review Tribunal could also dismiss the case or issue a public censure against the judge. Be advised that this process is lengthy and could take anywhere from six (6) to eighteen (18) months or more to complete.
Thank you for your continued patience and cooperation as we continue with this process. We apologize for any inconvenience caused by the delay in resolving the complaint, as well as for our failure to communicate with you more often and in more detail regarding the status of the investigation. Due to confidentiality rules, we were greatly restricted as to what information we could provide and were concerned that any information we provided would be leaked to the media.
We appreciate that this case is very important to you. Like all cases filed with our agency, this matter was handled carefully and thoroughly investigated. Because the factual allegations and legal issues presented proved to be more complicated than most cases presented to the Commission, it simply required more time to resolve. In addition, please keep in mind that our Commission holds hearings only six (6) times per year, and handles hundreds of cases at each of those meetings. The thirteen volunteers who serve on the Commission take their responsibilities seriously and provide each case and decision the consideration it deserves. The members did not arrive at their decision in this matter lightly or prematurely.
We would also point out that we have a small, but dedicated staff that includes five lawyers and three investigators, who handle over 1,000 cases each year. Because of the significance of this matter, the investigation and presentation of the case was handled exclusively by the agency’s Executive Director and the Chief Investigator. It should be clear from a review of the Notice of Formal Proceedings how much time and effort has gone into this case so far. ”
This was in the Supreme Court awaiting action. Everyone over there knew about it. Any reporter could have gotten the story.
I think Burnam got wind it was coming out and he wanted to take credit. Such a blowhard.
The Commission spent a year investigating this case. Rightfully so, since it is very important.
Please get the story correct.
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lindy says:
Just to clarify. The previous posted statement was issued from the State Judicial Conduct Commission.
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Grey Lady says:
You know who else is “Gone, baby, gone”? Roland Burris.
ILLINOIS. The spokesman for US Senator Roland Burris (D) resigned on Thursday. Also, this quote Thursday to the Chicago Sun-Times for US Senate Majority Whip Dick Durbin (D-IL): “Short of Roland Burris resigning or resolving this issue — if he can, and I don’t know if he can — I don’t know what will stop it. I’m tired of this Blagojevich burlesque that’s been going on for so long. The people of our state should be spared this.”
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Anonymous says:
Regardless of what is motivating the movement, the fact is Keller’s actions causes Texas and Texans shame…She should be gone for no other reason than that…
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JK says:
She won’t go…and if she’s forced out, she’ll be re-elected in a landslide. The public will figure the guy got what he deserved, and they will thank Sharon Keller for it.
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Wise in West Texas Reply:
February 20th, 2009 at 7:57 pm
Who would have imagined that Sharon Keller would wind up being the “fall gal” for all of the ethical atrocities committed during the Bush era in Texas politics?
Bush and Cheney can listen in on our phone calls with no warrant. They can make sure that Saddam Hussein got all the process he was due when he was tried, convicted and executed in 30 days. They can order up some extraordinary rendition for some poor fool just passing through. Karl Rove and Harriet Miers can simply ignore Congressional subpoenas, and Alberto Gonzalez can lie to Congress and politicize the Department of Justice. Don’t forget Tom Delay.
But it’s Sharon Keller who “brings discredit to the state,” and no complaint has even been made that she committed a crime!
Go figure!
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The Grey lady's influence says:
Before extolling the virtue of the Gray Lady’s influence on the Texas agencies, the matter had been before the Judicial Conduct Commission for a number of months-the commission selected one of the best lawyers in the state to lead the investigation and in developing the charging instrument. Everyone took this very seriously from the begining.
I am certain the panel assigned this matter will understand the implications in this case.
There are some interesting sidelights to the matter:
(1) I was diappointed in the charging instrument, in part because of its references to newspaper editorials commenting on the alleged conduct. I would have thought it wiser to lay out the her conduct and the damning timetable of her actions, rather than include what well informed (or uninformed) editorial boards had to say about their perception of her conduct.
(2) I remain disappointed with the examination of the conduct of all the lawyers in this case. Consider the following actions:
(a) The clerk of the Court of Criminal appeals, is alleged to have known that Keller was countermanding their internal operating procedure and ordered the office closed. Why did he chose not to go upstream with that information to the other members of the court, most importantly to the duty judge who was actually at the court.He appears to have violated his duty to the Court as an institution;
(b) The TDS showed an astonishing lack of resilience when faced with information that the Court’s clerk office was closed. The Defenders should have been aware of Texas Rule of Appellate Procedure 9.2 (a) which would have allowed then to deliver the document- not just to the office- but the the clerk at his home or to “a justice or judge of that court who is willing to accept delivery”. They could have gone to Keller’s home or any of the other 8 judges home to attempt this filing. This failure was briefly mentioned in the earlier Texas Lawyer story on this subject.
(3) Finally, the actions of state prosecutors, who were aware of the problems the defenders were having, in not requesting assistance of governmental agencies to see that the matter was at least filed or that if it could not be timely filed, then the execution delayed. The bar disciplinary rules are clear-prosecutors have the “obligation to see that justice is done, and not simply to advocate” (Rule 3.09 Comment 1)
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jolie Reply:
February 20th, 2009 at 1:39 pm
isn’t it true, though, that absent keller’s action to close the court none of these other ancillary actions would be needed?
I’m just thinking keller is the prime actor here and, while a number of mitigating actions are spelled out (quite clearly actually!), the defense ought not to have had to avail themselves of the alternative avenues. in other words, keller did indeed willfully and persistently fail to uphold her ministerial role. it sounds like she allowed her personal bias to interfere with what had been a standard practice.
yes? no? I’m trying to get a better understanding here is all.
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slick Reply:
February 20th, 2009 at 1:44 pm
I agree with most of your analysis, although there may have been more effort on behalf of Mr. Richard that we don’t know about.
And with regard to the newspaper editorials, I don’t know how else you build a case for a subjective standard such as “public confidence” in the judicial system. How else would you suggest someone prove this up?
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Not a Lawyer Reply:
February 20th, 2009 at 7:07 pm
Maybe the Attorney General’s office should be added to your list. After The Defenders were rebuffed by the clerk of the Court of Criminal appeals they turned to the US Supremes for a stay but weren’t heard because the Texas Attorney General’s office intervened pointing out that The Defenders had not yet exhausted their TCCA appeals. (Because Keller closed the TCCA offices.)
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slick says:
Chief Justice Keller has brought shame upon our state. Texas voters won’t reward that. If you believe as a matter of policy that Texans should not be allowed access to their courts (the “5 p.m. means 5 p.m.” premise), I’d suggest filing a constitutional amendment to repeal the open courts provision of the Texas Constitution. Let’s let everyone know that they should not have any expectation that a court will hear your claim, regardless of whether the interest is someone’s liberty or their livelihood. I think you’d find a groundswell of opposition to this from the well-heeled business crowd.
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trowaman says:
One problem, Paul.
You’re assuming the normies, who show up vote, and then leave, care at all or even know who Judge Keller is. They don’t. She’s in know political danger, the general public is apathetic and uninformed, and there are no democrats in power to hold her feet to the fire or make scene about it.
What pressure is on her? None that won’t blow over in the next two weeks.
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slick Reply:
February 20th, 2009 at 1:34 pm
This ain’t gonna blow over in a couple of weeks. It has legs — if she sticks to her guns, it will go to trial, and may be appealed. Every editorial page in the state will be opining on this at every stage.
The interesting question is whether there’s a group within the Republican party who will step up and tell her it’s time to do the right thing, to step aside, perhaps find her some place to quietly land.
Perhaps she can return to Dallas and her previous professional pursuit — landlord to the Doll House topless/strip/’gentleman’s’ club.
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cow droppings Reply:
February 20th, 2009 at 8:12 pm
“the general public is apathetic and uninformed…”
I love it when Democrats reveal their true colors and condescend to voters.
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Anonymous says:
The Doll House? Is that really true, slick? There are some wild looking women there (according to rumors I’ve heard – wink, wink.)
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paulburka says:
How is this going to blow over when the Commission on Judicial Conduct has brought charges against her?
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Anonymous says:
The people of Texas probably like that Keller ordered the office to close at the usual time of 5:00 p.m. If Keller were to appear again before the state’s voters, she would probably be granted re-election.
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slick says:
I think your premise is wrong — if you read the charging instrument, you’ll realize that the “usual” practice was not followed. If it was, Justice Keller would not be in this situation. The Court had an unwritten (later written) policy that established who would be designated for late filings. Keller disregarded this.
And this, from the Dallas Observer:
Judge shake-it-baby
Conservative Court of Criminal Appeals Judge Sharon Keller is landlord to a North Dallas topless bar
http://www.dallasobserver.com/Issues/1999-11-18/news/news.html
By Thomas Korosec
Article Published Nov 18, 1999
A titty bar, $200 worth of beer and tequila shots, and a conservative Republican judge: a combo more volatile than atomic fission. The question is, Will the Texas GOP go thermonuclear when it learns one of its highest-ranking jurists, Court of Criminal Appeals Judge Sharon Keller, owns the building and property housing the Doll’s House, a Dallas topless joint?
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Noonie says:
It’s a greater risk for her to *not* resign. She’ll resign. Wouldn’t you? (Answer: YES.)
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Anonymous says:
slick, if she resigns the first round of tequila shots is on me – as long as the Doll House still has a happy hour!
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Miss Crystal Ball says:
Dallas (AP) – Governor Rick Perry today appointed former Dallas County Assistant District Attorney Atilla T. Hun as the new Presiding Judge of the Texas Court of Criminal Appeals. Hun succeeds former Presiding Judge Sharon Keller who resigned when faced with imminent expulsion by the Texas Supreme Court.
Perry, facing a stiff primary challenge from Senator Kay Bailey Hutchison next March, said that Hun would help “clean out the liberal cobwebs at the Court.”
Atilla T. Hun began his career as an Assistant to the late Dallas County District Attorney Henry Wade. Hun left Wade’s employment over a dispute about Wade’s failure to impose a 40 year sentence on a Dallas jaywalker. “Henry is such a candy-ass liberal,” Hun said at the time.
Hun said he looked forward to implementing new execution methods during his term as Presiding Judge. “For years, I’ve advocated using an electric lethal injection chair. With new methods, we can eliminate the backlog on death row virtually overnight.”
Hun is married to Mary Typhoid Hun, a practical Nurse employed at the TDCJ Walls Unit in Huntsville. “She’s my inspiration,” Hun said.
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texxasredd says:
Who’s the worst person Perry could name as Keller’s replacement…hmmmm…Terry Keel…Chuck Rosenthal….Bob (no relation) Perry……
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Jtx says:
If the GOP is smart, they will pressure her to resign, just like they pressured Chuck Rosenthal, and have Perry appoint someone new. Keller is already not the best vote getter and now she will get a first rate opponent if she runs in 2012.
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texxasredd says:
Jtx –
It took a concerted effort of Harris County GOPers to get Old Chucky Baby to resign – but only after they found out about his porn stash. The fact that an elected official is/was an adulterer, vindictive, and blazingly incompetent was and remains irrelevant to the GOP.
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panhandle says:
The Texas Supreme Court is a wholly-owned subsidiary of big business.
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