Prosecutor accuses top appeals judge of 'gross carelessness'

Prosecutor accuses top appeals judge of 'gross carelessness'



Posted Friday, Jun. 18, 2010

By DAVE MONTGOMERY

dmontgomery@star-telegram.com


AUSTIN -- A prosecutor today accused Judge Sharon Keller of “gross carelessness” by denying a late-hour appeal for a Death Row inmate, but her attorney countered that the state’s highest appeals court judge is the victim of a “pack of lies” designed to force her from the bench.

The hearing before the State Commission on Judicial Conduct marked the latest phase in a protracted inquiry against Keller, a former Dallas prosecutor who has served as presiding judge of the Texas Court of Criminal Appeals since 1995.

Commissioners were expected to deliberate after the hearing and could reach a decision by the end of the day, though the ruling may not be announced immediately.

The judicial panel could decide whether to dismiss the case, issue a censure or recommend Keller’s dismissal from the bench. A removal recommendation would open another phase of the inquiry, requiring the Texas Supreme Court to appoint a panel of seven appellate judges to further review the case.

Prosecutors are challenging a special master’s finding that Keller should not be removed or reprimanded for refusing to keep her office open on Sept. 25. 2007, to hear an after-hours appeal from condemned inmate Michael Wayne Richard, who was executed that day.

In a separate case, Keller is also fighting a $100,000 civil penalty that the Texas Ethics Commission levied against her for allegedly failing to disclose more than $2.4 million in property on her state-required personal finance statements.

Austin attorney Mike McKetta, serving as the prosecutor for the commission, said that Keller violated long-standing execution-day procedures by not notifying a fellow judge assigned to handle late-hour appeals after she learned that Richard’s attorneys were working to prepare a petition.

“She is the public face of criminal justice in the State of Texas,” said McKetta. “She has violated a mandatory protocol, a duty of her office in one of the most time-sensitive and irreversible circumstances there can be, moments before a scheduled execution.”

But Houston lawyer Charles "Chip" Babcock, representing Keller, said the appeals court judge acted properly in her handling of the situation and urged the commission to drop the charges against her. Babcock contended that allegations against Keller have been stoked in the press by death penalty opponents and other Keller detractors who are attempting to "drive her off the bench."

Babcock asked the commission to accept conclusions of San Antonio Judge David A. Berchelmann Jr., who served as a special master during a four-day, trial-like proceeding in August 2009. Berchelmann faulted Keller for questionable judgment and poor communication with court officials but said she "did not violate any written or unwritten rules or laws."

Babcock used the final minute of his argument to tell commissioners of "the unspeakable toll this has taken on Judge Keller – personally, reputationally and financially. She has worn this ordeal with grace and dignity and good humor."