Judge Killer rebuked

At long last the saga of Judge Killer seems to be coming to an end with the State Commission on Judicial Conduct's release of its Findings, Conclusions and Order of Public Warning against the Chief Judge of the Texas Court of Criminal Appeals, Sharon Keller.

In condemnation of the conduct described above that violated Article 5, section 1-(a)(6)A of the Texas Constitution  and Canon 3B(8) of the Texas Code of Judicial Conduct, it is the Commission's decision to issue a PUBLIC WARNING to the Honorable Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, Austin, Travis County, Texas.

Pursuant to the authority contained in Article 5, section 1-a(8) of the Texas Constitution, it is ordered that Judge Keller's conduct described above be made the subject of a PUBLIC WARNING by the State Commission on Judicial Conduct. -- Commission's Findings, Conclusions and Order of Public Warning, Inquiry Concerning Honorable Sharon Keller, Judge No. 96

For those of you who haven't followed the proceedings, Chief Judge Keller told David Dow and the Texas Defenders Service that the Court would not remain open for late filings on the day that Michael Richard was scheduled to die at the hands of the state. Mr. Richard's attorneys scrambled that day to prepare a writ of habeas corpus challenging the constitutionality of the lethal drug cocktail used by Texas to kill inmates as the US Supreme Court granted a writ of certiorari in a case out of Kentucky alleging that the drugs used by Kentucky (the same drugs used by Texas) masked the suffering of the inmate while he lay dying.

At a hearing presided over by Judge David Berchelmann, Jr. of San Antonio, Judge Keller tried to throw the blame squarely on Mr. Dow's shoulders for not filing his pleadings on time. Judge Berchelmann fell for the misdirection and spent entirely too much time raking Mr. Dow and his organization over the coals when the focus of the inquiry was Judge Keller's conduct.

The State Commission saw past the smokescreen and found that Judge Keller violated the rules of the court regarding execution day protocols, knowing that her actions would allow the state to kill Mr. Richard. The commission then issued a public warning rebuking Judge Keller for her actions -- the first time a sitting judge on the Court of Criminal Appeals has received such a warning. (Click here for the Commission's Findings.)

Judge Keller has said that she will appeal the Commission's finding and warning. Nice to see the judge taking advantage of a protocol that she denied to a man scheduled to die.

A reprieve for Judge Killer

The special master appointed to hear the State Commission on Judicial Conduct's charges against Judge Sharon Keller of the Court of Criminal Appeals has found that the judge's conduct "[did] not warrant removal from office or further reprimand beyond the public humiliation she has surely suffered."

Of course, while Judge Keller may have suffered public humiliation, at least she is still alive to feel the brunt of it. Michael Richard is dead due, in part, to her actions.

Judge David Berchelmann, Jr., of San Antonio, found that Judge Keller's actions on the day of Mr. Richard's execution did not preven his attorneys, the Texas Defender Service, from filing the necessary documents as there were other avenues for filing available. Judge Berchelmann said TDS bore most of the responsibility for the events of the day.

Judge Berchelmann's findings will now go to the Commission who will decide whether to dismiss the complaint, reprimand Judge Keller or ask the Texas Supreme Court to remove her from office.

Read Judge Berchelmann's findings here.

Paybacks can be hell

University of Houston law professor David Dow is now wearing the shoe off the other foot. Mr. Dow and the Texas Defender Service (TDS) were in the middle of the controversy swirling around Judge Killer, er... Keller, and her closing of the Court of Criminal Appeals clerk's office on the night of Michael Richard's execution.

On November 18 the Court ordered Mr. Dow to appear before the Court for a show cause hearing on the TDS' untimely filed documents in another death penalty case.

Under the Court's Miscellaneous Rule No. 08-101, adopted in June 2008, any motions filed relating to a death sentence are considered late if filed less than 48 hours before 6pm on the date of the execution. If a pleading is filed within 48 hours, a sworn statement of why the pleading is being filed late must be attached.

TDS filed the writ on the afternoon of November 17, 2009. In Mr. Dow's sworn statement he said he did not receive the file in question until November 6, 2009 (twelve days before the scheduled execution) and that the grounds for the writ of habeas corpus changed on November 15, 2009 due to a decision by the U.S. Supreme Court. He also noted the time constraints of dealing with multiple cases near the deadline.

Mr. Dow's writ was denied and his client was executed on November 18, 2009.

Judge Keller did not participate in the decision to deny Mr. Dow's writ and she did not participate in the show cause hearing.

I understand the need for courts to have adequate time to review pleadings before a deadline, but I have to question the need for Miscellaneous Rule No. 08-101. We're talking about a human life. With all of the controversy regarding the execution of Cameron Willingham, I should think the State of Texas would be cautious before ordering the murder of anyone else.

The Hood saga takes another turn

The hearing set for today in the Charles Dean Hood saga was cancelled after Mr. Bill Boyd, the attorney for retired Judge Verla Sue Holland, requested that the matter be transferred to federal court.

Mr. Hood's attorneys have filed an application for a writ of habeas corpus and a motion for a stay of execution.

Interestingly enough, the Texas Defender Service released a press release showing that, during her time on the Court of Criminal Appeals, Judge Holland recused herself from 78.6% of the cases that came from Collin County.

Mr. Hood's execution is scheduled for Wednesday. The question of whether or not Mr. Hood lives or dies is now up to Gov. Rick Perry, who has been urged by Texas Attorney General Greg Abbott to issue the stay. Mr. Abbott sent a letter to Mr. John Roach, the current Collin County District Attorney, stating his belief that the issues regarding the alleged affair between Judge Holland and Tom O'Connell "warrant thorough review."

Mr. Abbott also wrote that "if the execution proceeds as scheduled, before questions about the fairness of [Hood's] trial are legally resolved, neither the victims nor justice will be served."

It's time for the governor to do the right thing.