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On Sept 25, 2007, Sharon Keller, Presiding Judge of the Texas Court of Criminal Appeals, said “We close at 5” and refused to accept an appeal from the attorneys of Michael Richard, who was scheduled for execution at 6pm that night. The U.S. Supreme Court had decided at around 10am that morning to accept a case from Kentucky (Baze v Rees) in order to rule on the constitutionality of the method of lethal injection as a means of carrying out executions. Richards attorneys had to rewrite their appeal to incorporate the issue of the constitutionality of lethal injection. They had a computer problem and called the Texas Court of Criminal Appeals to ask for an extra 20 minutes to submit their re-written appeal. Keller said “We close at 5” and refused. Richard was executed later that night after the U.S. Supreme Court was unable to issue a stay, because there had been no final decision at the state-level court. If Keller had not refused to accept the appeal, the U.S. Supreme Court could have issued a stay. Richard was the last person executed in the United States before the start of a de facto moratorium on executions pending the decision by the U.S. Supreme Court in the Baze case.
October 11, 2010 statement by Scott Cobb, president of Texas Moratorium Network, which filed one of the judicial complaints against Sharon Keller in 2007:
“It is not surprising that an all-Republican review panel would let Sharon Keller off on a technicality instead of holding her responsible for her judicial misconduct. Sharon Keller may have got off on a technicality, but a majority of the State Commission on Judicial Conduct found that she did not accord a person about to be executed with access to open courts or the right to be heard according to law.
Sharon Keller’s actions were not in accordance with the accepted principles of right and wrong that govern the conduct of her profession as a judge. It is now up to the Texas Legislature to restore the harm done by Sharon Keller to the integrity of the Texas Court of Criminal Appeals by impeaching Keller for judicial
misconduct. The voters of Texas will likely throw her out of office if she decides to run for re-election in 2012, but it would be better for the quality of justice in Texas if the Legislature impeaches and removes her from office”.
Earlier Statement after Sharon Keller received “Public Warning” by State Commission on Judicial Conduct:
The people of Texas have been publicly warned by the State Commission on Judicial Conduct that we have an ethically compromised judge on the Texas Court of Criminal Appeals who did not accord a person about to be executed with access to open courts or the right to be heard according to law, yet she has been allowed to keep her job. Sharon Keller’s actions were not in accordance with the accepted principles of right and wrong that govern the conduct of her profession as a judge. This is the worst case scenario for Texas, because now we know that the problems in the Texas death penalty system reach to Texas’ highest ranking criminal appeals court, and yet the judge who closed the doors to justice remains on the Texas Court of Criminal Appeals.
A public warning is useful, but it is not enough. Sharon Keller should be removed from office. The public warning tells us that if you seek justice in Texas, proceed with caution because Sharon Keller is the presiding judge of the Texas Court of Criminal Appeals.
The Texas Legislature can help restore integrity to the Texas Court of Criminal Appeals by impeaching and removing Keller from office. We now have the findings of fact from the State Commission on Judicial Conduct, so it is confirmed that Keller has brought discredit to the Texas judiciary by her misconduct hendering access to justice. It is up to the people of Texas now to take the findings of fact and act on them by seeking to remove Keller from office through their elected representatives using the impeachment process or at the ballot box in 2012 when she is up for re-election. Since Keller is not up for re-election for another two years, it is in the best interest of justice that the Legislature removes her from office.
During an exchange with judicial conduct commissioner Tom Cunningham, a Houston attorney, Babcock said he did not believe the commission had given Keller a fair hearing. To which Cunningham responded, “Isn’t it ironic that’s what Mr. Richard was asking?”
The Texas Ethics Commission has levied a $100,000 fine on Sharon Keller for failing to disclose at least $3.8 million in income and property on two annual financial statements.
A public hearing before the State Commission on Judicial Conduct on the matter of Sharon Keller was held June 18, 2010 at 9 AM Room 140 of the John H. Reagan State Office Building in Austin, Texas at 105 W. 15th Street. June 18 is a Friday.
The Special Master has issued his Findings of Fact in the case of Judge Sharon Keller.
And now the prosecution has filed its objections to the findings of the Special Master (PDF).
The Special Master’s findings are located on the website of the State Commission on Judicial Conduct at http://www.scjc.state.tx.us/caseinfo.asp
Texas Moratorium Network filed a complaint against Keller with the Texas Commission on Judicial Conduct in November 2007 that was signed by about 1900 people.
FOR IMMEDIATE RELEASE: August 20, 2009
CONTACT: Scott Cobb, 512-552-4743 www.sharonkiller.com
Texas Moratorium Network, which filed a judicial complaint against Sharon Keller in November 2007, has monitored the trial of Sharon Keller and finds the evidence presented at trial supports the severest sanctions against Keller – her removal from office for violating the Execution-Day Procedures of her court and for casting discredit on the Texas judiciary.
“Keller’s testimony on the witness stand that in hindsight she would do nothing differently on Sept 25, 2007 if she had it to do over again, has further damaged the integrity of the Texas judiciary. The most effective way to restore integrity to Texas’ highest criminal court is for Sharon Keller to be removed from office. She has seen that the consequences of her saying “we close at 5” were that Michael Richard was unable to file an appeal with the Texas Court of Criminal Appeals, even though his lawyers called the court again shortly before 6 PM and were told not to bother to bring the appeal to the court because no one was there to accept it”, said Scott Cobb, president of Texas Moratorium Network.
“Cheryl Johnson, the duty judge assigned to receive all communications regarding the case of Michael Richard on Sept 25, 2007, testified at the trial that she was not informed about the request by Richard’s lawyers to file a late appeal. She testified that she would have accepted the appeal. Sharon Keller was obligated by the rules of her own court to direct all communications regarding Richard to Judge Johnson.”” Said Cobb
“Sharon Keller could have avoided being charged with misconduct and incompetence, if she had responded to Ed Marty when he called her at 4:45 pm on Sept 25 by saying, “tell them the clerk’s office closes at 5, but they can submit an appeal after 5 by directly contacting any judge on the court who is willing to accept the appeal. Let them know that Judge Johnson is the assigned duty judge on the Richard case and inform Judge Johnson of their request to file an appeal”, said Cobb.
Excerpt from the judicial complaint filed by TMN: “It is clear from her actions that Judge Keller can no longer be expected to preside over death penalty cases with the requisite fair, bias-free and even-handed disposition so critical to such serious life and death matters.”
A PDF of the judicial complaint filed by TMN in November 2007 is here: http://su.pr/2ArO3J
A video of a copy of the judicial complaint being delivered for Sharon Keller to the clerk of the Texas Court of Criminal Appeals in November 2007 is on YouTube at http://www.youtube.com/watch?v=dbVd9P3R7MU. The video contains a statement by the sister of Michael Richard outside the CCA. The video also contains footage of the clerk’s office remaining open 3-4 minutes after 5PM to receive the copy of the complaint.
Day two of Sharon Keller’s trial is expected to get underway at 10 AM on Tuesday, August 18. Below is news coverage of day one of the trial. We held a demonstration at 8 AM on August 17 in front of the entrance to the building where the trial of Sharon Keller is being held. Contact Scott Cobb at 512-552-4743 for more information.
The trial is being held in the courtroom of David Berchelmann, Jr, presiding judge of the 37th District Court, 100 Dolorosa, San Antonio, Texas 78205. Berchelmann has been appointed “special master” by the Texas Supreme Court to conduct the hearing on the charges against Keller.
Texas Moratorium Network filed one of the judicial complaints against Keller and that was co-signed by about 1900 people. We wrote the Commission and urged them to hold the hearing in Austin because “Austin is the capital, the CCA is located in Austin and Austin is more centrally located for people from all parts of Texas who may want to attend, including any people from North Texas who signed on to the complaint we filed with the State Commission”. However, we were told that the agreement has already been reached with counsel.
Video of us delivering a copy of the complaint to the Texas Court of Criminal Appeals for delivery to Keller in November 2007. We mailed the original to the State Commission on Judicial Conduct. The video contains a moving statement by the sister of Michael Richard. She came to Austin that day to deliver a personal letter to Keller at the court urging her to resign.
The State Commission has also sent Judge Keller an amended notice of formal proceedings.
Letter from Seana Willing, Executive Director, State Commission on Judicial Conduct to:
Scott Cobb and all Complainants who signed on:
Please be advised that on December 2-4, 2008, following three informal hearings that took place before it on June 18-20, 2008, August 13-15, 2008, and October 15-17, 2008, the Commission voted to initiate formal proceedings against the judge who was the subject of your complaint. This process involves a public trial before a Special Master appointed by the Texas Supreme Court, after which findings of fact will be presented to the Commission. You will be notified in writing of the date, time and location of this trial. Based on the Report from the Special Master, the Commission may vote to dismiss the case, issue a public censure, or recommend to the Supreme Court that the judge be removed from office.
In the event that removal is recommended, a seven-member Review Tribunal of appellate justices, also appointed by the Texas Supreme Court, will review the record of the public trial and the hearing before the Commission to determine if the judge should be removed from office. The Review Tribunal could also dismiss the case or issue a public censure against the judge. Be advised that this process is lengthy and could take anywhere from six (6) to eighteen (18) months or more to complete.
Thank you for your continued patience and cooperation as we continue with this process. We apologize for any inconvenience caused by the delay in resolving the complaint, as well as for our failure to communicate with you more often and in more detail regarding the status of the investigation. Due to confidentiality rules, we were greatly restricted as to what information we could provide and were concerned that any information we provided would be leaked to the media.
We appreciate that this case is very important to you. Like all cases filed with our agency, this matter was handled carefully and thoroughly investigated. Because the factual allegations and legal issues presented proved to be more complicated than most cases presented to the Commission, it simply required more time to resolve. In addition, please keep in mind that our Commission holds hearings only six (6) times per year, and handles hundreds of cases at each of those meetings. The thirteen volunteers who serve on the Commission take their responsibilities seriously and provide each case and decision the consideration it deserves. The members did not arrive at their decision in this matter lightly or prematurely.
We would also point out that we have a small, but dedicated staff that includes five lawyers and three investigators, who handle over 1,000 cases each year. Because of the significance of this matter, the investigation and presentation of the case was handled exclusively by the agency’s Executive Director and the Chief Investigator. It should be clear from a review of the Notice of Formal Proceedings how much time and effort has gone into this case so far.
On a final note, we are honored to have the services of John J. “Mike” McKetta, III, Michelle Alcala, and their firm, Graves Dougherty Hearon & Moody, P.C., supporting the Commission as Special Counsel in this matter.
Let us know if you have any questions or concerns regarding this process.
State Commission on Judicial Conduct
Like many people in Texas and around the nation, we were shocked when we heard that Judge Sharon Keller had said “We close at 5” and refused to accept an appeal 20 minutes after 5 PM on Sept 25, 2007 by lawyers representing a man to be executed that night.
We submitted a complaint against Judge Sharon Keller to the State Commission on Judicial Conduct on November 16, 2007. The Commission so far has not taken any disciplinary action against Keller. Click here to read our complaint.
If you are as shocked as we were by the refusal of Judge Sharon Keller to accept an appeal 20 minutes late by a man about to be executed, then join our call to remove Keller from the Court of Criminal Appeals. We are asking the Texas House of Representatives to impeach Sharon Keller and the Texas Senate to remove her from office.
Please take a moment to call your member of the Texas House of Representatives and tell your State Representative that you want the Texas House to impeach Keller. You can find out who your State Representative is by going to the link below and entering your address.
If you have questions, please call 512-961-6389 or email firstname.lastname@example.org
Judge Keller refused to
allow the attorneys for Michael Richard, scheduled to be executed on
the same day, to file pleadings on his behalf, based on a grant of
certiorari by the U.S. Supreme Court that same day on the question of
the constitutionality of lethal injection. The attorneys had requested
that the court clerk’s office remain open twenty minutes past the 5pm
closing time because they had experienced computer failure in the
preparation of their pleading. Judge Keller refused the request, even
though she was not the judge assigned to the Richard case. As a result,
Richard then was executed by lethal injection.
Judge Keller has been quoted in the media as having told the clerk of
the Court to convey to Richard’s lawyers that “We close at 5”. However,
other judges have said in the media that they were in the building and
willing to accept the submission. It appears that Keller may have lied
by saying, “We close at 5”, when she knew very well that the appeal
could be accepted after 5 and that the court does not “close” at 5,
because judges on her court are able to be reached and able to issue
orders to stay executions even after 5.
Judge Keller’s actions denied Michael Richard two constitutional
rights, access to the courts and due process, which led to his
execution. Her actions also brought the integrity of the Texas
judiciary and of her court into disrepute and was a source of scandal
to the citizens of the state. In addition, her actions may make it more
difficult for law enforcement personnel to bring offenders to justice,
if people do not believe that they will be accorded due process and
fair treatment by the Presiding Judge of the Texas Court of Criminal
Without a ruling by the
Texas Court of Criminal Appeals on Richard’s appeal, the U.S. Supreme
Court could not consider his appeal or a request to stay his execution,
pending a Supreme Court decision. Court of Criminal Appeals judges were
standing by on September 25 to work the evening on which Michael
Richard was executed because they expected his lawyers to file an
emergency appeal based on the U.S. Supreme Court’s decision earlier in
the day to consider a Kentucky case challenging the constitutionality
of lethal injection. At least three judges were working in the
courthouse at the time, including the judge assigned to the Richard
case, and others were available by phone, if needed, according to court
personnel. Presiding Judge Keller refused to allow the emergency 11th
hour appeal to be filed after 5pm. Richard’s lawyers had requested the
court clerk to stay open for an extra twenty minutes so they could file
their petition for stay of execution. They had experienced severe
computer problems in preparing the pleading and so informed the clerk.
Judge Keller refused the request, and Richard was put to death.
Neither Judge Keller nor the court’s general counsel, Edward Marty, who
had consulted with Judge Keller on the request to stay open, advised
any of the judges of the request by Richard?s attorneys. Judge Keller
did not consult Judge Cheryl Johnson, who was assigned the case. Judge
Keller acknowledged she [Johnson] was at the court at the time. Johnson
told the Austin American-Statesman she was dismayed by Keller’s
decision. “And I was angry,” she told the paper. “If I’m in charge of
the execution, I ought to have known about those things “I mean this is
According to undisputed press accounts, Judge Cathy Cochran said,
“There were plenty of judges here, and there were plenty of other
personnel here. A number of judges stayed very late that evening,
waiting for a filing from the defense attorney.” She said she herself
had gone home, but was available by telephone. Judge Cochran said, at
the least, a decision should have been made by the full court on
whether to accept the appeal. “I would definitely accept anything at
any time from someone who was about to be executed,” she said.
In an opinion piece the
Houston Chronicle published a month before Keller was first elected to
the CCA in 1994, she called the failure to impose capital punishment on
convicted murderers “a human rights violation — particularly if we
take into account the human rights that murderers violate when left
alive to kill again.” This statement shows an extreme bias towards the
use of capital punishment that is inconsistent with the duties of a
judge. Keller’s action in the Richard case show that she believed her
self-declared human right to impose capital punishment was more
important than protecting the constitutional rights of a man about to
“Sharon Killer” song by Possumhead.