JUDGE FACES ETHICS TRIAL.

Elena Grothe AMERICAN-STATESMAN (enlarge photo) Sharon Keller leads Court of Criminal Appeals. Pat Sullivan ASSOCIATED PRESS (enlarge photo) After her husband was executed Sept. 25, 2007, Marsha Richard – with attorney Randall Kallinen – filed a lawsuit against Judge Sharon Keller. Keller ordered the Court of Criminal Appeals' clerk's office to close at 5 p.m. the day Michael Richard was executed. 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Some DPS troopers failed polygraph test, officials reveal Judge faces ethics trial Hall's sentence tossed out COURT OF CRIMINAL APPEALS Judge faces ethics trial Trial to consider Keller's role in after-hours death row appeal By Chuck Lindell AMERICAN-STATESMAN STAFF Friday, February 20, 2009 The state judicial ethics commission on Thursday charged Sharon Keller, the presiding judge of the state's highest criminal court, with violating her duty and bringing discredit upon the judiciary when she refused to allow a death row prisoner to file an after-hours appeal in 2007. The inmate, Michael Richard, was executed that night. Keller will face a public trial to answer the charges and could be removed from office, reprimanded or exonerated. "Judge Keller's willful and persistent failure to follow (her court's) execution-day procedures on Sept. 25, 2007, constitutes incompetence in the performance of duties of office," according to a charging document from the State Commission on Judicial Conduct. The document listed five charges accusing Keller of violating the Texas Code of Judicial Conduct, which requires judges to act in a manner that promotes public confidence in the judiciary and to ensure that every person is provided access to court. Keller referred questions to her lawyer, Chip Babcock of Houston. "Judge Keller very much denies these allegations," Babcock said. "But as importantly, there are a number of facts which are omitted (in the charges) that would win the case for her if known." Keller's trouble began when she advised the clerk's office of the Court of Criminal Appeals to close at 5 p.m. on the day Richard was to be executed in Huntsville. Richard's lawyers, who were experiencing computer problems, had asked the court to stay open for an appeal based on that morning's decision by the U.S. Supreme Court to examine whether lethal injection was a cruel and unusual punishment. The Supreme Court review halted all executions for seven months — except for Richard's. Denied the proper forum to raise the appeal, he was executed at 8:20 p.m. that night. One week later, the American-Statesman reported that Keller decided to close the courthouse without consulting the other eight judges on the appeals court, even though several stayed past 5 p.m. in anticipation of a late appeal. Keller also failed to inform the judge designated to handle any Richard appeal, Cheryl Johnson, of her decision. The report ignited global outcry and several complaints to the judicial ethics commission — including one signed by 25 prominent lawyers — claiming that Keller violated her legal obligations. A commission investigation and three informal hearings followed, culminating in a closed-door decision to file charges against Keller in December. Austin lawyers Mike McKetta and Michelle Alcala, with the Graves Dougherty Hearon & Moody law firm, were hired as special counsel to draft the charging document and to oppose Keller at trial. The as-yet-unscheduled trial will be conducted before a special master, a sitting judge from outside Travis County who will be appointed by the Texas Supreme Court. Keller will be allowed to present evidence, raise objections and call and cross-examine witnesses in a forum that will resemble many civil court trials, said Seana Willing, executive director of the Commission on Judicial Conduct. "The judge can put on her case, and we can put on our case," Willing said. Once that trial is completed, the special master will prepare findings for the Commission on Judicial Conduct. The 13-member commission, which has two vacancies, will issue its decision in a public hearing, Willing said. A removal recommendation would be reviewed by a specially formed panel of seven appellate judges, who can dismiss the case, issue a censure or issue a removal order. Censure or removal can be appealed to the Texas Supreme Court. Keller, a Republican, became the first woman to serve on the Court of Criminal Appeals in 1994. She was elected presiding judge in 2000, and her current term ends in 2012. clindell@statesman.com; 912-2569

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