Reasonable Doubt 
And Justice for Some
Over the past ten years, the Texas Court of Criminal Appeals has disregarded exculpatory DNA evidence, threats of torture, bad lawyering, and in some cases, all common sense to uphold convictions in keeping with its tough-on-crime philosophy. Why should toughness steamroll fairness?
eileen says: Hi Carl, If you register as a user on our site (it’s free! and easy!), you will get access to the archives. Please feel free to contact me, edsmith@texasmonthly.com. (March 11th, 2010 at 3:34pm)
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To understand the CCA you have to understand Keller. Within the steps of her journey over the past decade, from assistant DA in Dallas to presiding judge, there is the story of a changing CCA as it went, under Keller’s leadership, from a fusty obscurity to an unwanted celebrity as the most notorious state high court in the country. “For ten years now,” says a veteran court watcher, “she has not wavered in her ambition to see the state win every case.” In the Texas Legislature she is known as Sharon Killer, while on her own court she is nicknamed Mother Superior. Part of this comes from her demeanor; she is quiet, studious, diligent, and closemouthed (she declined to be interviewed for this story). But as a conservative Catholic, she is also on a mission. “She believes she’s doing the work of God,” says one ex-staffer. Keller is one of the highest-ranking Republican elected officials in the state, yet she herself is a mystery. Many old friends and former staffers and judges as well as current colleagues were willing to talk about Keller, but few spoke on the record. One reason is obvious: She’s a powerful person. But friends and colleagues are also protective of her. They genuinely like her, even when they are genuinely horrified by who she has become and the decisions she has handed down. One old friend says it’s a Dr. Jekyll and Mr. Hyde thing. “When did this happen?” she asks. “How did this happen?”
Keller was born in Dallas on August 1, 1953. Her father, Jack Keller, started Keller’s Drive-In in 1950; there were eventually three restaurants, though one has since closed. Sharon had two brothers and an older sister and went to the exclusive private Greenhill School, graduating in 1970. She spent a year at the conservative Catholic college the University of Dallas, then, at her father’s suggestion, transferred to Rice University, where her sister was attending school. Sharon was reserved and withdrawn, though according to several friends of hers from the time, she was no straight arrow and availed herself of the freedoms of the counterculture.
In a 1998 interview, Keller said, “I don’t think people who knew me before I took the bench would perceive me as a leader-type person.” Not only that, friends don’t remember her even talking about big issues of the day, such as the death penalty, which was about to be outlawed, or the Vietnam War. “Most of our discussions were about where to go to have fun,” remembers one friend. “It would be a shock to most people that she would go to law school, much less become the most conservative Court of Criminal Appeals judge in the state’s history.”
Like many young people, Keller didn’t know what to do with her life. At first, she planned to study physics but later changed her major to philosophy. Her father suggested law, and after graduating from Rice, she enrolled at Southern Methodist University, earning her degree in 1978. She worked at a small firm for a few years, then married Hunt Batjer, a neurosurgeon. After their son, Temple, was born, she went to work for her father’s company as a senior executive. She and Batjer divorced soon afterward. In 1987 a parent of one of Temple’s Greenhill schoolmates told Keller about an opening at the Dallas County DA’s office; she applied and got it. As an assistant DA, she worked in the appellate division, and one of her jobs was arguing before the CCA. In 1993 Keller’s boss, DA John Vance, suggested that she run for a CCA seat that had come open at the last minute in the upcoming election. “It was a job I had not envisioned seeking,” Keller said later.
At the time, the court was all Democratic and all male. It also had a reputation for reversing convictions on technicalities, such as when a name was left off an indictment. In 1993 the court ordered a new trial in the horrific Tracy Gee carjacking murder case in Houston because the trial judge had called for a second shuffling of the jury cards. The public, enduring a high violent crime rate, was outraged, and newspapers editorialized against the court for being slaves to technicalities.
The furor changed the tenor of the CCA election, with candidates claiming to be pro-victim and anti-criminal. Keller campaigned as a tough-on-crime district attorney who would bring “the perspective of a prosecutor” to the court and not let criminals off on minor procedural violations. She outspent her general election foe by a three-to-one margin—Keller borrowed $213,000 from her family and raised another $25,000—and won easily, carried onto the court by the wave of anti-Clinton, pro-Bush sentiment, becoming the first woman elected to the court and a rising star in the party that had just taken over the state. The other new judge was Steve Mansfield, who was elected over moderate incumbent Charles Campbell even though it was revealed before the election that Mansfield had lied about being born a Texan (he was from Massachusetts) and about being a criminal defense lawyer (he was an insurance company attorney). It didn’t matter. During the campaign he had promised to have a “conservative, pro-victim orientation.” Tough talk and an “R” by your name were all you needed to get elected to the CCA, even if you were a double-talking Yankee.
Almost immediately, Keller and Mansfield made their presence known. In their first month they were the only two dissenters in a case granting a poor defendant the right to a court-appointed lawyer. They frequently joined with two other conservatives, presiding judge Mike McCormick and Bill White, to vote solidly pro-state. McCormick liked the hardworking Keller and put her on some of the court’s many committees, sharing with her some of his administrative and legislative responsibilities. She was a good student. Soon the CCA would vote to rehear three cases in which it had previously ruled for the defense; all were reversed. It wasn’t long before Keller was helping direct the court.
IN 1996 KELLER WROTE her first big decision, one that showed how hard the new court would be willing to steer in the state’s direction. Cesar Fierro had in 1980 confessed to murdering an El Paso cab driver; Fierro was convicted and given the death penalty. The problem, which was discovered fifteen years later, was that Fierro had confessed only after local police, in league with Mexican counterparts across the border in Juárez, told him that if he didn’t spill, the Mexican cops would torture Fierro’s mother and stepfather, whom they had just taken into custody. When the truth finally came out, both the prosecutor and the trial judge said that Fierro should get a new trial. Keller and the CCA saw it differently. “We conclude that applicant’s due process rights were violated,” she wrote in the court’s decision. “But, because we conclude that the error was harmless, we deny relief.” Fierro still sits on death row.
The Fierro decision demonstrated that not only would the court vote with the state, it would do so even when the police were a party to threats of torture—even when the state cheated. The phrase the court used in Fierro was “harmless error,” a concept developed nationally in the sixties as a reaction to otherwise sound cases getting thrown out of court on technicalities. Under the rule, if misconduct or a mistake by the police, prosecution, judge, or jury is minor—if it doesn’t affect the ultimate outcome of the case—the verdict is not touched. Unfortunately, as the court would show over the next eight years, the CCA considers almost any problem with the state’s case, however egregious, harmless.
Consider Delma Banks, whose name has plagued the Texas courts since 1980, when he was convicted of killing sixteen-year-old Richard Wayne Whitehead in a park near Texarkana. Banks, it seems from reading the trial record, is most likely guilty. Witnesses had seen him and Whitehead in Whitehead’s green Mustang the night before the murder, and other witnesses saw Banks driving a green Mustang around Dallas the next morning. A man Banks stayed with in Dallas produced the murder weapon for the police, a pistol he said Banks had left with him.
But even the guilty are due a fair trial, and in Banks’s case, the state deceived the jury to get a conviction and then lied to get the death penalty. A capital murder trial has two parts: the guilt phase and the punishment phase, at which it is crucial for the state, in order to win the death penalty, to show that the recently convicted is a future danger to society. Two of the state’s main witnesses in Banks, one used in each phase, cooperated with police out of fear of going to prison; one, it was revealed later, was heavily coached by prosecutors, and the other was a paid informant. While it’s legal for prosecutors and police to talk to witnesses before they testify and also to use paid informants, the state has an obligation to disclose these relationships to the defense as well as all other evidence in its possession. In Banks the prosecution denied both the coaching and the informing. Worse, at the punishment phase, the informant lied, saying that Banks, who had no criminal record, had told him that he was intent on launching an armed robbery spree and would use a pistol to “take care of” any trouble that came up. In other words, Banks was a future danger. Again, the prosecution, which knew this was untrue, said nothing, and Banks was sentenced to death.
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