Case Closed: Special Court of Review Vacates Public Warning, Charges Against Keller

By Mary Alice Robbins

Texas Lawyer

October 18, 2010

Breaking her silence after three years, Texas Court of Criminal Appeals Presiding Judge Sharon Keller says she feels "vindicated" by a special court of review's decision to vacate the State Commission on Judicial Conduct's public warning and charges against her.

Although some reporters have written that the three-justice court of review's Oct. 11 decision in In Re: Honorable Sharon Keller was only a technical victory for Keller, she doesn't see it that way.

"I won," Keller says. "People can call it what they want."

Keller, a member of the CCA since 1995 and its presiding judge since 2000, also says she will seek re - election in 2012. "I have always planned on doing that," she says.

Her judicial conduct case played out against the backdrop of debate over the death penalty. Dubbed "Sharon Killer" by some anti-death penalty activists, Keller has experienced not only the commission's investigation and prosecution of its charges against her but also critical media coverage and protests at her home.

"It's been a three-year-long ordeal," Keller says.

Austin solo Lillian Hardwick, co-author of the "Texas Handbook on Lawyer and Judicial Ethics," says what many people have focused on in Keller's case is the death penalty.

"Make no mistake, the death penalty is a serious issue, but that's not what this is about," Hardwick says.

Hardwick says, "It's whether what Judge Keller said and did on that day [Sept. 25, 2007] violated the Code of Judicial Conduct and the Texas Constitution."

In its judgment in Keller , the court of review noted that the judicial conduct commission "erred as a matter of law" on July 16 when it issued its order of public warning to Keller for her conduct in the case of convicted murderer Michael Richard, whom the state executed on Sept. 25, 2007. The commission's error, according to the court of review's opinion, was in issuing a sanction not permitted by the Texas Constitution or the state's Government Code after the initiation of formal proceedings against Keller.

However, the court of review also noted that the resolution it reached "is not an opinion on the underlying merits." The court of review's opinion provides the following background on Keller: The case concerned complaints against Keller for her decision not to keep the CCA clerk's office open past business hours to allow the entity serving as Richard's attorney to file a request concerning his pending execution.

Keller went home early to meet a repairman on the day Richard's execution was scheduled. "I thought there was a dangerous situation with my oven," she says.

Keller says it is not unusual for a CCA judge not to be at the court on a day an execution is scheduled. The important thing, she says, is that the judges be accessible by telephone.

CCA Judge Paul Womack says Keller's statement is generally correct but that he was at the court on the day Richard was scheduled for execution.

"I made a point to stay around because I knew the [U.S.] Supreme Court had granted cert in a case that day," Womack says. He says he was expecting a filing based on the high court's decision.

On the morning Richard was scheduled to be executed, the Supreme Court agreed to consider the constitutionality of lethal injection in Baze v. Rees, a Kentucky case.

The court of review's opinion provides the following additional background on the case: After an informal investigation, the judicial conduct commission voted in February 2009 to pursue formal proceedings against Keller. San Antonio's 37th District Judge David A. Berchelmann Jr., who served as the special master in Keller, presided over a four-day trial for her in August 2009. In his Jan. 20 findings of fact, filed with the commission, Berchelmann wrote that, although Keller's conduct was not exemplary on the day Richard was executed, she "did not violate any written or unwritten rules or laws," and he recommended that no formal action be taken against Keller. Both Keller and the commission's examiner objected to Berchelmann's findings. After considering the record, the commission disregarded Berchelmann's conclusions and voted to issue a public warning to Keller.

This is the point at which the court of review found that the commission erred. The court of review noted that different consequences follow an informal proceeding than follow a formal proceeding.

After an informal investigation and before a formal hearing, the Texas Constitution permits imposition of a "sanction," wrote the court of review. The Texas Government Code defines "sanction" as a private or public admonition, warning, reprimand, or requirement for additional training or education.

After a formal proceeding, the constitution provides for 1. imposition of a public censure or 2. recommendation for removal or retirement.

A censure is more severe than any of the sanctions: It is an order of denunciation, which is a condemnation, according to the court of review's opinion. Following a formal proceeding, can the commission issue penalties short of censure or a recommendation of removal or retirement? The court of review found the constitution's plain language inconclusive on this point.

The relevant statute doesn't clear up the matter. The court of review wrote that the government code's plain language also is inconclusive with regard to whether a sanction is permissible absent a formal proceeding, but the language suggests that the answer is yes.

The court of review then looked to the protections afforded judges in reaching its conclusion about permissible consequences. The Texas Legislature gave sanctioned judges the right to a trial de novo because the sanction resulting from informal proceedings before the commission may lack "basic elements of due process." In contrast, the Government Code provides for a court of review to conduct a review of the record of the formal proceedings that resulted in a judge's censure.

Being entitled to greater appellate review (trial de novo v. review of the record) for a lesser consequence (a sanction v. a censure) after more due process (informal v. formal proceedings) did not make sense to the court of review. The court wrote, "Engrafting a warning into the range of penalties after a formal proceeding would lead to an absurd result — an automatic second trial for warnings after formal proceedings but not for censure, removal or forced retirement — with the latter penalties greater in severity but entitled to less appellate review."

Keller's case went through formal proceedings. As explained in the court of review's opinion, the commission could have, with seven votes and a finding of good cause, issued a censure of Keller for her conduct in Richard's case. But without a finding of good cause and the requisite number of votes, the commission was required to dismiss the charges against Keller, the court of review concluded.

Jorge Rangel, the judicial conduct commission's chairman, says, "We are very respectful of the opinion, because we recognize this is a process. The commission had a role in the process. The special court of review had a role in the process."

But Rangel, a shareholder in The Rangel Law Firm in Corpus Christi, says that the commission could not say that a rule promulgated by the Texas Supreme Court violates the state's constitution or is inconsistent with the constitution.

"The commission takes the rules as written and as they are handed to us," Rangel says.

In its July 16 order of public warning, the commission cited, among other things, Rule 10(m) of the Procedural Rules for the Removal or Retirement of Judges. That rule provides that, after a hearing and considering the record and report of a special master, the commission, by a vote of six of its members, "may dismiss the case or publicly order a censure, reprimand, warning or admonition."

But, as the court of review pointed out in its opinion, Rule 10(m) is inconsistent with other Supreme Court's rules, the Texas Constitution and the Government Code.

The court of review made its finding in response to Keller's motion to dismiss the commission's public warning of her and the commission's charges against her. Keller had requested appointment of the court of review after the commission issued its public warning. The Texas Supreme Court appointed Fort Worth's 2nd Court of Appeals Chief Justice Terrie Livingston, Houston's 1st Court of Appeals Justice Elsa Alcala and Beaumont's 9th Court of Appeals Justice Charles Kreger to sit as the court of review.

Texas Civil Rights Project director James C. Harrington of Austin is one of a number of attorneys who filed complaints against Keller with the judicial conduct commission.

"It's kind of sad," Harrington says of the court of review's decision. "You have all the findings by the commission, and the three-judge panel says they didn't do it right.

"I don't know how the commission could do that. It's incomprehensible," Harrington says. "On the other hand, why didn't the justices [on the court of review] just send it back to the commission and say 'Do it the right way'?"

But Hardwick says that was not an option. Hardwick says that remanding Keller's case to the judicial conduct commission is not a part of the process.

If the commission had considered the complaints against Keller in an informal proceeding, the special court of review could have ordered the commission to open formal proceedings against her, Hardwick says. But the commissionhad already instituted formal proceedings.

The court of review noted in its opinion, "We cannot conclude that the Texas Constitution and Government Code permit the Commission to re-initiate formal proceedings under the circumstances in this case." As the court of review pointed out, Keller already has undergone formal proceedings that did not result in a censure or a recommendation for her removal or retirement.

On Sept. 25, 2007, attorneys with the nonprofit Texas Defender Service represented Richard. Andrea Keilen, the TDS executive director, did not return two telephone calls by presstime Oct. 14. David Dow, the TDS litigation director and a professor at the University of Houston Law Center, declines comment.

Graves Dougherty Hearon & Moody shareholder John J. "Mike" McKetta of Austin, the commission's special counsel who prosecuted Keller, also declines comment.

Charles "Chip" Babcock, Keller's attorney and a Jackson Walker partner in Dallas and Houston, says there is no appeal from the court of review's decision and that the disciplinary case is over. But Babcock says he is looking into the court of review's decision to order that costs, if any, be assessed against the commission. The order appears in conflict with state law, however. Texas Government Code §33.031 prohibits the award of costs or attorney's fees in a judicial conduct commission proceeding.

State Rep. Lon Burnam, D-Fort Worth, says, "Contrary to what Judge Keller's lawyer says, it ain't over yet."

Burnam says he will file a resolution in the Texas Legislature's 2011 session to start impeachment proceedings against Keller. He filed a similar resolution in 2009, but the measure stalled in a House committee.

"The woman's also got a major ethics decision against her," Burnam says, referring to the Texas Ethics Commission's (TEC) assessment of a $100,000 civil penalty in April for multiple omissions on her 2007 and 2008 personal financial statements.

According to the Travis County District Clerk's Office, Keller filed a petition to appeal the TEC penalty on June 10. Austin solo Ed Shack, Keller's attorney in the TEC case, says Keller's appeal is still pending in a Travis County district court.

The Texas Office of the Attorney General represents TEC in Keller's appeal of the administrative penalty. OAG spokesman Tom Kelley declines comment on the appeal because the case is still in litigation.

While Keller's problems are not completely over, CCA Judge Cathy Cochran believes that ending the judicial conduct commission's proceedings removes a black cloud that has hung over the entire court.

"We're very glad to have this behind us, so the court can focus on the future and consider each case fairly on its merits," Cochran says.

Keller says she has heeded Berchelmann's finding that she needs to be more collegial and maintain better communication with her colleagues on the court.

"I really do try my best to make sure the other judges know what I'm doing," Keller says.

Mary Alice Robbins is on Twitter at www.twitter.com/maryarobbins