Sharon Keller Gets off on Technicality; Reputation of Texas Judiciary Still Tarnished
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.
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 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.
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
Video of Protest at Texas Court of Criminal Appeals Nov 16
Video of Delivery of Judicial Complaint
Quotes About Sharon Keller
"We should expect fair and judicious treatment from our courts not cruel
and callous actions such as this. Otherwise, we are no better than
societies without an impartial justice system."
Steven Rosner, Signed Judicial Complaint from Members of Public
"I am deeply disturbed at the damage caused by this single incident to
the integrity of our justice system, an issue more important than even
a single man's life. Unless consequences are addressed, this behavior
undermines the very foundations of respect for our legal system.
Criminal behavior often occurs because criminals don't respect our
legal system, therefore we demand a legal system worthy of respect. A
judge is only a civil servant, but one who is held to the highest
standard of trust to be impartial and fair and not impose their own
Debbie Deiters, Austin, Texas,
Signed Judicial Complaint from Members of Public
“This act is the most disgraceful thing I have ever heard of a judge
doing and it should not go unpunished. Justice Keller needs to be
removed from the bench and placed on the other side facing charges of
negligence, malpractice and murder.”
Andrew Ritzdorf, Centennial, Colorado
Signed Judicial Complaint from Members of Public
“This conduct was most appalling and vile - especially coming from
someone supposedly qualified to affect justice! She is a disgrace of
the highest order, and her wanton disregard for a man's right to (try
to)live must be punishable by removing her from office.”
Dorothy Finch, Atlanta, Georgia
Signed Judicial Complaint from Members of Public
“Your actions should be criminal in a world where the harm done to
society is actually judged by harm and not class status. This is an
example of how justice not only sleeps, but saunters lazily out of the
courtroom even at the peril of death to others, whose right to an
appeal was immorally thwarted. I would never clerk for a judge like
you. Despicable. Disgusting. You will forever be pinned in my judicial
Hall of Shame. If I end up teaching law, your name will be forever
ringing as an example of incompetence and hatred under the guise or
If the facts are as reported, Judge Keller should be removed from the bench. It would show monumental callousness, as well as a fundamental misunderstanding of justice, for a judge to think that a brief delay in closing a court office should take precedence over a motion that raises constitutional objections to an execution. If the facts have been misreported, the impeachment process would allow Judge Keller to set the record straight.
Impeaching a judge is not a step a legislature should take lightly. It is important that judges be insulated from political pressures so they have the independence necessary to administer justice fairly. But judges cannot be allowed to use their extraordinary discretion to deny litigants the fundamentals of due process. That is especially true if the stakes are literally life or death.
a man’s life is on the line—to say nothing of the U.S. Constitution—our
top criminal judge should behave like one: with prudence, fairness, and
a calm hand. It’s time for Keller to go. If the commission doesn’t act
quickly, we’ll have to wait until January 2009, when the
Legislature—which has the power to oust high judges—reconvenes, or
worse, 2012, when Keller is up for reelection. The fact is, we need to
do it now. Impeach Sharon Keller."
Waco Tribune Herald Editorial
"Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, shamed the state by deciding that 20 minutes of her time was more important than a last-minute appeal for a man on death row.
If Keller cannot be removed from her position, she should be disciplined for her outrageous behavior." - Oct 16, 2007. Link
We were already of the opinion that Keller should either resign or be removed from the court. The latest report that she has not disclosed a couple million bucks in assets as required by law only strengthens that view.
Texans deserve better on their court. We urge Keller to save taxpayer money and help restore faith in the state's highest criminal appeals court by resigning.
"All the evidence in Michael Richard's criminal case says he was a cold-hearted murderer. He killed a young woman without any hint of compassion. He may have been short of the mental capacity to understand the enormity of his crime. But even if society would not allow him that mitigating factor, he deserved more justice than he received in his final hours on earth. More to the point, Texans deserved a better brand of justice to represent them at a crucial moment of decision."
"The best justice system should honor the rule of law and due process without regard to the vagaries of the defendant's situation. There may be no perfect justice on this earth, but the pursuit of it should be the most vigorous particularly in the worst of crimes. Belief in the rule of law should demand its dispassionate meting out. Do the condemned want to use any legal hand hold to delay the day of their execution? Of course. But the respect for the rule of law should demand that judges keep their minds open to its possible imperfection, not out of any regard to the defendant, but out of regard for the law and the Constitution." - Nov 4, 2007. Full Article .
Judicial Complaints Filed Against Keller
In addition to our complaint signed by members of the general public that we filed on Nov 16, there have also been several other judicial complaints filed against Keller. Some complaints may have been filed confidentially, but here are the ones that we know have been filed by organizations or individuals
Twenty lawyers represented by Jim Harrington of the Texas Civil Rights Project, including:
former State Bar President Broadus Spivey
University of Houston law professor Mike Olivas
former appellate Judge Michol O'Connor
State Representative Harold Dutton
Texas Moratorium Network's complaint signed by about 1900 people
Harris County Criminal Lawyers Association, signed by more than 130 lawyers and others, including:
State Representative Dora Olivo
State Representative Garnet Coleman
National Association of Criminal Defense Lawyers
Texas Criminal Defense Lawyers Association
State Representative Lon Burnam
State Representative Jessica Farrar
"Sharon Killer" - The Song
Visit the website of Possumhead to learn more about the band and listen to their other songs. Jennifer Mattingly is an Austin attorney who wrote the song "Sharon Killer". She recorded it with her band Possumhead. Jennifer is one of the people who signed on to our judicial complaint against Keller.
It was late afternoon, and a repairman was due at her house. This is what apparently was on the mind of Judge Sharon Keller, the state’s top criminal judge, on the 2007 day that murderer Michael Wayne Richard was slated to die. So shortly before 5, when Richard’s attorneys asked for an extra few minutes to file an appeal, Keller defied execution day procedure and refused. She told her clerk to say the court closed at 5.
It is too late for rule of law to apply to Michael Wayne Richard. But it must be applied to Keller, whose deformed ethical compass makes her unfit to judge. If a new state probe of her conduct fails to prompt her removal, the Legislature should impeach her.
More than a year after her cavalier actions shocked the country, Keller has finally been called to account for her actions. Last Thursday, the state Commission on Judicial Conduct announced judicial proceedings against her, charging “willful or persistent conduct that casts public discredit on the judiciary.”
Also last week, State Rep. Lon Burnam submitted a resolution to impeach Keller, citing “gross neglect of duty” and “willful disregard for human life.”
All three descriptions are accurate. On any given execution day, Texas courthouses are active places. Because of the chance for last-minute appeals, courthouses don’t have a strict closing time, judges work late and judges often hear last-minute pleadings from home, the Dallas Observer notes.
After all, a human life is at stake.
On the day of Richard’s execution, there was even more happening. That morning, the U.S. Supreme Court announced its decision to review the constitutionality of lethal injection — to which Richard was sentenced. This announcement created a de facto death penalty moratorium nationwide. But because the decision came late, Richard’s attorneys had to scramble, deciding how the news could be used in a workable appeal.
When their computer crashed that afternoon, however, the attorneys had the misfortune of calling a judge who cared not for legalities — but for punishment. Ignoring court procedure, Keller shut the door on them.
In retrospect, this might be expected of a judge who campaigned on the promise of being “pro-prosecution.” But the Texas justice system, which kills so many and has mistreated even more, cannot continue to bear that same label.
Removing Judge Sharon Keller will show the many watching this state that Texans don’t thirst for blood, but for justice.
The below editorial was published in 2007.
The events of Sept. 25 have put a stain on Texas justice that can only be cleansed by the removal of Chief Justice Sharon Keller from the Texas Court of Criminal Appeals.
On that day, Judge Keller let her personal bias in favor of the death penalty trample the right of now-executed prisoner Michael Richard to access the courts and have due process. In doing so, she abdicated her role as the state's chief criminal justice to become its chief executioner.
As laid out in a complaint to Texas' State Commission on Judicial Conduct signed by 20 distinguished Texas attorneys, including Houston's Dick DeGuerin and University of Houston Law Center professor Michael Olivas, Judge Keller's actions were legally inexcusable. The plot line could be straight from a Law and Order episode, with the twist that in this case it was the justice who committed the injustice.
After the U.S. Supreme Court agreed to consider a challenge to the constitutionality of lethal injection, attorneys for Richard, a convicted murderer, had less than a day to craft an appeal for a stay of execution pending resolution of the issue before the high court. A ruling by the Texas court was necessary before the U.S. Supreme Court could consider his appeal.
Because of computer problems, Richard's lawyers requested that the Court of Criminal Appeals remain open past 5 p.m. to take the last-minute appeal. The judge assigned to the case, Cheryl Johnson, and two other judges had stayed late, anticipating that an appeal might be forthcoming before the execution scheduled later that evening. Without informing them of her decision, Judge Keller refused to allow the appeal to be filed after 5 p.m. Richard was executed hours later.
Even Keller's court colleagues expressed dismay at her actions. Justice Johnson was quoted in the complaint as angry, because "if I'm in charge of the execution, I ought to have known about these things, and I ought to have been asked whether I was willing to stay late and accept those filings." She indicated she would have accepted the brief, "because this is a death case." Justice Paul Womack told the Chronicle he waited in his office till 7 p.m. because "it was reasonable to expect an effort would be made in some haste in light of the Supreme Court. I wanted to be sure to be available in case it was raised."
Justice Keller's response to the uproar was that the lawyers should have filed the appeal on time. After all, she said, "they had all day." When an irreversible action like an execution is only hours away from occurring, Keller's adherence to a 9 a.m.-to-5 p.m. justice schedule is mind boggling. Civil judges are available at all hours to sign temporary restraining orders as are criminal judges to approve search warrants. Yet in the taking of a life, the most profound action a judge will ever be involved in, Keller wants to stick to banker's hours.
The irresponsibility of Keller's behavior was highlighted by subsequent legal developments. Two days after the Richard execution, the Supreme Court stayed the execution of another Texas prisoner, Carlton Turner. Although his appeal had been denied by the Texas court, the fact that it was heard allowed the high court to act.
Then the Court of Criminal Appeals stayed the scheduled execution of convicted murderer Heliberto Chi, effectively signaling a halt to death by injection in the state until the high court rules on its constitutionality.
Just as Turner and Chi were spared pending the resolution of the issue, so Michael Richard should be alive today. Since she will not face the voters until 2012, the miscarriage of justice perpetrated by Chief Justice Keller can only be remedied by a recommendation by the Judicial Conduct Commission to the Texas Supreme Court that she be removed from office.
Locking justice's door / Texas Court of Criminal Appeals chief justice's unethical, outrageous blocking of a death row appeal merits the most severe legal sanctions.