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Posts Tagged “TDS litigation director”

Jun 30 2010

Sharon Keller, Death Judge Battles two Disciplinary Actions at Same Time

Posted by Rose in Charles "Chip" Babcock, Chip Babcock, High Proflie Trials

Charles Chip Babcock and Judge Sharon Keller

DISCLAIMER: I do not believe in the death penalty. However, I don’t lobby for it to be overturned I just hope I could stick to my belief even if faced with someone I love being killed. Many people have told me that if “that happened to you, your mind would change and you would be pro-killing by the state”. I hope not, I remember a couple in Louisiana whose young daughter had been murdered and after the man was convicted they plead with the court not to set a death sentence because they did not believe in state killings. That case continues to stick out to me of going through with what you believe in, even in the most horrid of situations. Second Texas has more convicted felons in jail and being killed by the state then any other state. In my opinion that is because Texas has converted to “prisons for profit”. It is like a resort, private companies run most of Texas prisons and have to show a profit. How do they do that? The courts keep the prisons full.

Now back to Judge Sharon Keller, former Dallas County prosecutor turned into the equal of the Supreme Court of Texas which decides Civil Cases, as the top judge for the Criminal Appeals Court. In other words she is not defendant friendly. Judge Keller was elected in 1994 and road in on the coat tail, of then governor George W. Bush, when the republicans swept into power including the highest courts of our state. In Texas we elect judges all the way to our highest courts, they are never appointed unless one is needed to complete a term for a judge no longer on the bench. Most of us split our votes in Texas, and most vote on judges never reading who they are or what they stand for. You can bet in 2012 when Keller comes up for reelection that Texans will know who she is. So what two ethics commissions have not been able to do, the voters can if they choose disrobe Judge Keller.

Here is brief synopsis and with links to the filings and news sources covering Judge Sharon Keller and what is going on with her professional life. In Texas you can’t get a better soap opera.

She is battling on two fronts at the same time one is “The State Commission on Judicial Conduct” and the other is the “Texas Ethics Commission”.

The Texas Ethics Commission recently fined Judge Keller $100,000 for a no no, we will get into that in this article because this is what caught my eye as something glaring that as a former prosecutor which standards would Keller apply to anyone facing her with a last appeal in the Texas criminal justice system for the same thing she did.

The Texas Ethics Commission decision to level the largest fine ever handed down of $100k. However, while going to the hearing on the other charges the same day, Keller announced she would fight the fine. “Keller’s attorney, Ed Shack of Austin, said Keller “is very disappointed at the excessive penalty” assessed by the commission and plans to appeal. The appeal, which Keller has 30 days to file, will likely result in a trial before a district judge in Travis County.” Among the holdings and business activities that Keller failed to disclose, according to the commission, were: Eight interests in real property that were valued at more than $2.4 million in 2006 and at $2.8 million in 2007. Most of the property is in Dallas. Keller also failed to disclose between 100 and 499 shares of stock in a business and up to nine sources of income from interest, dividends, royalties and rents that totaled at least $121,500 in 2007.”

Judge Keller’s excuse when caught in May 2009 and amended her financial disclosures to address all of this was her dad did it not her. Duh???? Is that like the old school kid try of “My dog ate my homework”? “Keller filed an amended financial statement in May 2009 to disclose real estate assets and other holdings that she had not listed in previous filings. In the revised statement, she said she was not aware of the holdings because her elderly father, a Dallas businessman who managed the property, had not told her about them.”

However on the same day, June 18, 2010, in front of the State Commission on Judicial Conduct her attorney for those proceedings, Charles “Chip” Babcock a partner of Jackson Walker in both Dallas and Houston “countered that the state’s highest appeals court judge is the victim of a “pack of lies” designed to force her from the bench. Babcock went on to say that, “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 used the final minutes of his argument to tell commissioners of “the unspeakable toll this has taken on Judge Keller – personally, reputationally and financially.”

Do what??? So she is going to force Texas to pay for more hearings and not pay the $100k fine and get on with her life? I find it interesting that she is fighting one set of complaints vowing to go to trial in Austin and on the same day in a different trial she is pleading that investigations against her had cost her “personally, reputationally and financially.”

The following is part of the exchanges in front to the State Commission on Judicial Conduct between Babcock on behalf of Judge Keller and Austin attorney Mike McKetta, who is a shareholder in Austin’s Graves Dougherty Hearon & Moody law firm, for the State of Texas with a couple of comments from the commissioners.

Babcock said he did not believe the commission had given Keller a fair hearing. To which Commissioner Tom Cunningham, a Houston Texas attorney responded, “Isn’t it ironic that’s what Mr. Richard was asking?”

Previously earlier this year the Special Master, David Berchelmann, Jr., appointed by the State Commission on Judicial Conduct said, roughly in his report and recommendations basically that “Yes, her behavior was bad, but lawyers who are public defenders, acted badly, too.”

Paraphrasing here the Gamso blog says; “Anyway, although Keller says she’d do it again, that’s obviously a lie. And since she wouldn’t do it again, and since she’s not wholly responsible for what happened and didn’t actually violate a technical rule (just an obligation) but merely acted badly, she shouldn’t be punished. Besides, she lied when she said she wouldn’t do it again, so she’s learned her lesson.”

Prior to this hearing on June 18, 2010, Judge Keller took a different attack, she’s been victimized Babcock wrote in filings before the hearing that this course of events would not seem out of place in the old Soviet bloc, where show trials were not really trials, but were degradation ceremonies staged to depose officials who deviated from party doctrine”.

Yea now Texas is equal to the Soviet bloc, you got to love these high profile and well paid lawyers spin on these things.

Grits for Breakfast blog said of the hearing that; “Keller’s attorney Chip Babcock spent the majority of his time (80% by one commissioner’s estimate) criticizing the Texas Defender Service and particularly attorney David Dow for mendacity and seeking to railroad Judge Keller out of office. He also criticized the Texas Civil Rights Project for relying on inaccurate media reports in drafting its complaint to the SCJC. These charges had taken an “almost unspeakable toll” on Keller said Babcock “personally, professionally, and again the term financially,” adding that all the allegations against her are a “pack of lies.” The entire proceeding, he opined, was a “calculated strategy by some people to take a popularly elected judge and drive her from the bench.”

McKetta for the State kept the attention of the few news media and bloggers who attended the June 18 hearing with a Power Point Presentation showing a time line of Keller’s actions.

“Both attorneys were on their A games, Grits for Breakfast blogger wrote, but Babcock suffered in a couple of key moments from what they call “bad facts,” particularly when he claimed Keller didn’t really mean she would do the same thing again, that she isn’t a “recidivist,” but Justice Jan Patterson read back to him Keller’s exact words from the testimony transcript to show he’d mischaracterized the Q&A and the examiner’s interpretation was accurate. One of the public, non-attorney members, Commissioner Janelle Shephard said she saw “shocking dysfunction in the court,” with little training or accountability. “Where does the buck stop in this whole fiasco?” she asked. Another Commissioner, Ann Bradford said, “This has to be a tremendous breakdown in communication.” Yet another of the 13 members of the commission, Karry Matson, blamed both sides for “dropping the ball.” McKetta said he was particularly perturbed by Keller’s earlier testimony that she would do the same thing today. “That is a serious problem that needs attention,” he said during the hearing.

Babcock on behalf of Judge Keller argued that the “State Commission on Judicial Conduct did a poor job of investigating complaints against Keller in connection with a death-row inmate’s case; “I think the commission has failed in every step of the way in this.” Yeppers Babcock said that in front of the very commission which will decide Keller’s fate on June 18, 2010. Babcock said “defense lawyers failed in their actions to file a brief on time and now are trying to blame Keller. It would be “enormously dangerous” if the Commission on Judicial Conduct, he said, sanctioned Keller based on distortions pushed by those with a political agenda.”

Babcock criticized the judicial conduct commission for basing its charges on “lies” that he alleged David Dow, the TDS litigation director and a professor at the University of Houston Law Center alleging that TDS concocted a story that they had multiple computer crashes on that day as they were trying to get the documents to the CCA, that attorneys had called the court and pleaded with Keller to keep the clerk’s office open but that she refused three times.

Here are the two things that have a lot of Texans finally talking about our judicial system. One is this hearing that Babcock is Keller’s lead attorney was based on a last minute appeal from a Texas death row inmate, who would have been executed at a later date anyway, because the U. S. Supreme Court had agreed to take a case from Kentucky that was like the one in Texas. That bothers me in a time where succession talk is fluid in Texas that the top judge would not honor the U. S. Supreme Court as having control over her or the Criminal Court of Appeals even for one day. However at the hub of this is not the U. S. Supreme Court’s granting a hearing on a similar case but instead that Keller declined to allow her court clerk’s office to stay open late on Sept. 25, 2007, to accommodate requests from public defenders who were readying a last-minute stay of execution. The appeal wasn’t received and the inmate, Michael Wayne Richard, was executed.

As I said Richard under Texas law would have been executed eventually anyway but is that a reason to say hey the outcome would be the same so what if the U. S. Supreme Court had issued a decision earlier in the day on Sept. 25, 2007 granted a hearing on another case the same day. After all the U. S. Supreme Court is NOT Texas.

One news source stated it this way: “The Keller investigation has received attention well beyond the state and has been cited frequently by critics who claim that judges in Texas, one of the nation’s busiest executioners, don’t handle death-penalty cases with sufficient care. A Republican and avowed law-and-order former prosecutor, Ms. Keller was first voted onto the Court of Criminal Appeals, the state’s highest criminal court, in 1994. She became presiding judge in 2000. Defense attorneys have filed hundreds of complaints against the judge with the judicial-conduct commission over the years, but she has defended her tenure.”

Special examiners retained by the judicial conduct commission last year charged Judge Keller with “willful and persistent” misconduct, a charge that can result in removal from office. The commission could dismiss the charges. It adjourned Friday, June 18 2010, without ruling.

The special Special Master Judge Berchelmann had previously wrote in his brief that Keller should not be impeached that. “Her refusal to keep the clerk’s office open late was “highly questionable, and she could have better communicated the procedure for filing late motions with an on-call judge. There is a valid reason why many in the legal community are not proud of Judge Keller’s actions.”

When the call came asking , the court’s general counsel called Keller – not Johnson, the on duty night judge for September 25, 2007, saying he thought it was an administrative matter. At Keller’s direction, the Texas Defenders Service was told that the clerk’s office would close at 5 p.m. But the defense lawyers did not call other judges to file the papers directly, which is a standard legal procedure. Keller did not instruct the staff to either let the on call Judge Johnson know about the late-filing request or let the defense lawyers know they should call Johnson. Neither did Keller acknowledge her phone conversation to colleagues the next day when they wondered aloud why no pleadings had been filed.

Then there is my “dad did it not me” situation, which could still on an outside chance cause criminal charges against Judge Keller be filed over misstatements in her financial disclosures that listed the earnings of Keller. The fine and finding by the Ethics Commission is disturbing to me in that the allegations that Keller had reporting lapses that were discovered after Keller asked a court to pay for her lawyers while failing to disclose millions in income and assets.

Again yeppers, this ex-prosecutor non-defendant friendly judge wanted the Texas tax payers to not only pay the costs for all of these ongoing hearings, but to also pay her legal fees out of our pockets. How do you forget and misplace over 2.5 million dollars of assets when you need the tax payers to foot your legal bills?

Will Judge Keller hold herself to the same standard of “blame” as she holds common criminals, I doubt it, she is after all a judge and not a common criminal.

In spite of all of these troubles Judge Keller recently told PBS in an interview of which she wrote the majority opinion in the Roy Criner case, ruling that new tests which showed DNA evidence in the rape and murder case was not Criner’s didn’t warrant granting Criner a new trial. In that interview with regards to the new DNA evidence Judge Keller said, “At best, he established that he might be innocent.”

She even took a swipe at witnesses and jurors; yes do your civic duty and Judge Keller can pass some blame to you if she needs to. In the PBS interview this spring, Judge Keller said; “We can’t give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important. When witnesses testify, and when jurors return a verdict, they need to know that they can’t come back later and change their minds. . . DNA evidence in this case did not prove that he didn’t commit the offense.” That translated to me that she cannot overturn a Jury verdict with new evidence but the jury may have made a mistake. Am I the only one scratching my head on this one?

Keller may reach even Washington D. C. fame in the confirmation hearing of Elena Kagan as to why the U. S. Supreme Court should be mindful and use Keller as an example of what NOT to do.

Politics Daily out of Washington D. C. said; “Kagan should use the forum, and the opportunity, to educate the committee and the rest of the nation about what “judicial empathy” really means — and also what it doesn’t mean. During her confirmation hearing, the nominee can do that — quite quickly, easily and proactively — simply by recounting the shocking story of Judge Sharon Keller of the Texas Court of Criminal Appeals. Judge Keller (known to some as “Killer Keller” even before the incident in question and heavily fined since for disclosure violations) has justifiably become the poster child for judicial callousness toward a condemned man…”

Would all of you like it if we put up the pleadings and answers in Judge Keller cases before two commission on conduct for you to download and read?

My bet is Judge Keller will end up paying the $100k fine, the Commission for Judicial Conduct will not suggest impeaching her, which means it will be left up to “we the people of Texas” to decide in 2012 Keller’s fate. At least voters will recognize her name on the ballot.

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