Report: Judge shouldn't lose job for closing court

[February 04, 2010]  SAN ANTONIO (AP) -- An embattled Texas judge who closed her court before a death-row inmate could file his final appeal should not lose her job or receive any further punishment beyond the "public humiliation" she has faced, a judge presiding over her ethics trial said in a report released Wednesday.

Judge Sharon Keller still faces five judicial misconduct charges for refusing to keep her court open past 5 p.m., and the state commission that will ultimately decide Keller's fate is not bound by the recommendations in Wednesday's report.

But the report makes it clear that Keller is not to blame for a twice-convicted killer being executed Sept. 25, 2007.

"Although Judge Keller's conduct on that day was not exemplary, she did not engage in conduct so egregious that she should be removed from office," wrote state district Judge David Berchelmann, who oversaw Keller's ethics trial.

Berchelmann went on to recommend that Keller was also undeserving of "further reprimand beyond the public humiliation she has surely suffered."

Mocked as "Sharon Killer" by her detractors, Keller has remained the presiding judge of the Texas Court of Criminal Appeals since the uproar began after Michael Wayne Richard was executed. At the heart of the charges against her is whether she denied Richard the ability to file a late appeal in the hours before his execution.

Keller received a phone call at 4:45 p.m. the day of Richard's execution from a court staffer asking if the court would stay open past its normal closing time for Richard's lawyers, who were running late with an appeal. Twice during the conversation Keller said no.

A hearing by the state Commission on Judicial Conduct -- which can still vote to remove Keller from office, reprimand her or dismiss the charges entirely -- has not been set. But Keller's attorney, Chip Babcock, said the judge was "gratified" for Berchelmann's report.

Babcock said he cannot imagine how the commission could vote to remove Keller given the thoroughness of the report. He said he expects all charges to be dismissed.

"It's a 100 percent complete validation of her," Babcock said.

Seana Willing, executive director of the judicial conduct commission and the examiner in the case, said in a statement she was studying Berchelmann's report. A 13-member panel of commissioners will decide what, if any, punishment Keller faces.

"While Judge Berchelmann recommended no further sanction 'beyond the public humiliation she has surely suffered,' Judge Berchelmann also has found serious shortcomings, 'failings' and 'poor judgment' on the part of Judge Keller," Willing said.

In his 16-page report, Berchelmann stopped short of entirely excusing Keller for closing her court, calling the decision "highly questionable." He said Keller should have been more helpful to Richard's attorneys about how they could have filed an appeal.

Keller said during the trial that she wouldn't change her actions if she could do it all over again. Berchelmann said that could not be true, and that "any reasonable person" would realize that open communication benefits the interest of justice.

"In sum, there is a valid reason why many in the legal community are not proud of Judge Keller's actions," Berchelmann wrote.

The report also placed equal blame on Richard's lawyers, who rebuked Berchelmann's findings. Richard was represented by the Texas Defender Service, which takes on many cases for indigent death-row defendants.

"Judge Keller knew exactly what was being asked of her," the Texas Defender Service said in a statement. "She responded with an unequivocal 'no' and closed the courthouse doors."

Berchelmann said The Texas Defender Service embellished the computer problems preventing them from filing a timely appeal before the court closed.

Berchelmann, who was briefly a Criminal Court of Appeals judge before Keller joined the panel in 1994, also said Richard's lawyers did not tell the truth when they told reporters that they were ready to file an appeal at 5:20 p.m. He said they unwisely relied on paralegals instead of experienced lawyers to communicate with Keller's court that night, and failed to exhaust all possible means of filing the appeal.

"Indeed, the TDS was quite successful in causing a public uproar against Judge Keller, much of which was unwarranted," Berchelmann wrote.

Richard's attorneys said justice should not depend on semantics such as asking the right court official or wording the question exactly.

"Shifting the responsibility to ensure access to justice away from the Court and to TDS is akin to blaming a paramedic for a car crash victim's injuries," their statement said.

Richard was executed for the brutal 1986 rape and slaying of Marguerite Dixon, a Houston-area nurse and mother of seven. He was twice-convicted and failed numerous appeals before the one drafted the night of his execution.

But on that morning, his attorneys saw a window of reprieve when the Supreme Court agreed to review a challenge to Kentucky's three-drug combination used in executions. Texas uses a similar lethal cocktail, which was the basis of Richard's final appeal.

[Associated Press; By PAUL J. WEBER]

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