The Judgment of Sharon Keller

As she goes on trial this month, nearly everyone—journalists, lawyers, and even some of her colleagues—is calling for her head, but is the presiding judge of the Court of Criminal Appeals the monster she’s been made out to be?
The Judgment Of Sharon Keller
Illustration by Mark Summers

The most infamous phone call in recent Texas history came on the afternoon of September 25, 2007, when, at 4:45, Ed Marty, the general counsel of the Court of Criminal Appeals, dialed Sharon Keller, the court’s presiding judge. Both were in Austin; he was at the courthouse and she had gone home earlier to meet a repairman. One hundred and forty miles away, at the Walls Unit, in Huntsville, Michael Richard (pronounced “Ree- shard”) sat in a cell adjacent to the execution chamber. He was scheduled to die that evening for a murder he’d committed in 1986. The CCA, the state’s highest criminal court and the final arbiter in all death penalty cases, was waiting for his last appeal.

But Marty had a question for Keller. It seemed that Richard’s attorneys were having some computer problems that were preventing them from getting their motion for a stay filed before the clerk’s office closed, at 5. They wanted to know if they could deliver it after-hours—5:15, 5:30 at the latest. Keller, who has been on the CCA since 1994 and the presiding judge since 2000, listened to Marty’s question. Under her leadership the court has been one of the more conservative in the country, developing a reputation, especially on the left, for rubber-stamping death sentences. Her reply would cement this: “We close at five.”

Keller’s statement was relayed to Richard’s attorneys, who were unable to meet the deadline. Just over three hours later, Richard was put to death. And that might have been the end of the matter, just another execution in Texas, number 405 since the reinstatement of capital punishment in 1982. But September 25 was no ordinary day. That morning the U.S. Supreme Court had decided to examine the constitutionality of the three-drug cocktail used in lethal injections, essentially putting a moratorium on executions that would last for six and a half months. Because of that decision, CCA judges and staff had braced themselves for an appeal from Richard’s attorneys, one they had been told was coming. Three judges were even waiting at the courthouse for it. One of them, Cheryl Johnson, was the designated duty judge, who, according to the court’s execution-day procedures, was in charge of the CCA’s response. But she was not informed of the phone call that afternoon between Keller and Marty.

In fact, Johnson found out about the conversation from a newspaper account four days later. She was furious, and her fellow judges were shocked. It wasn’t long before outraged lawyers and judges were signing petitions demanding that Keller be disciplined by the Commission on Judicial Conduct, a state watchdog group that has the authority to reprimand judges and recommend their removal from the bench. “I have never seen such a unanimous response from the legal profession,” said lawyer Broadus Spivey, a former president of the State Bar of Texas. The Dallas Morning News called Keller’s decision “a breathtakingly petty act [that] evinced a relish for death that makes the blood of decent people run cold.” Texas Monthly announced, “It is time for Sharon Keller to go.” It seemed that Keller, who had been so gung ho for so long about so many executions, had been caught closing the door on a dying man’s last request.

The CJC typically finds itself probing allegations of relatively minor infractions, such as sexual harassment or obscene language by justices of the peace. But in June 2008, it began to question a dozen of the players in the Richard drama, including Keller. In February of this year the CJC announced formal proceedings against her, making Keller the highest-ranking judge ever to be investigated by the group. The main charge was that Keller’s “failure to follow the CCA’s execution-day procedures” violated the Texas constitution (which states that a judge must not exhibit “willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary”) and the Code of Judicial Conduct (“a judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”).

The New York Times called for Keller’s removal, as did a group of 24 judicial ethics experts from all over the country. The Legislature joined in the fray when Lon Burnam, a liberal Democrat from Fort Worth, filed a resolution to consider impeaching Keller. Texas hasn’t impeached a judge since 1975, but at an April legislative committee hearing, six lawyers and one former appellate judge spoke in favor of it. “If those reports are accurate,” said defense attorney and legal ethics expert Charles Herring, “Sharon Keller was personally responsible for killing a man on a day when he should not have died.”

Keller—long mocked by defense lawyers, judges, and state legislators as “Sharon Killer”—has brought negative publicity to the CCA before, but nothing like this. It will get worse when the trial begins, on August 17, in the San Antonio courtroom of district judge (and former CCA judge) David Berchelmann Jr. “It’s going to be a donnybrook,” said Cathy Cochran, one of Keller’s brethren on the CCA. Judge will testify against judge. The shroud of secrecy will be lifted—and not only from the court. Keller has been one of the more mysterious judges on the bench, a modest, private person not given to publicity (she declined to be interviewed for this story) who lets her conservative decisions do her talking. “It’s easy for others to demonize her,” said Jim Bethke, the director of the Task Force on Indigent Defense, which Keller chairs. “But she’s a very decent, conscientious person.”

I had a chance to see her in action with the task force on June 10, at a meeting held in the CCA courtroom. Keller was stylish and poised, leading a group of a dozen judges, lawyers, and state legislators, including Democratic representative Pete Gallego. The men wore shades of black, brown, or gray; she had on a canary-yellow skirt, blouse, and jacket. Keller

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