The Sharon Keller findings of fact were issued today. Basically, Judge Keller failed to act as an “exemplary” public servant, failed to foster the open communication we should expect from judges, and even failed to learn anything for her mistakes; but ultimately the blame lies with the defense. Nice.
Judge Keller’s conduct, however, was not exemplary of a public servant. She
should have been more open and helpful about the way in which the TDS could
present the lethal injection claim to the TCCA. She should have directed the TDS’s
communication to Judge Johnson. Although she says that if she could do it all over
again she would not change any of her actions, this cannot be true. Any reasonable
person, having gone through this ordeal, surely would realize that open
communication, particularly during the hectic few hours before an execution, would
benefit the interests of justice. Further, her judgment in not keeping the clerk’s
office open past 5:00 to allow the TDS to file was highly questionable. In sum, there
is a valid reason why many in the legal community are not proud of Judge Keller’s
Judge Keller’s silence on several occasions conflicts with the ideal that courts
should foster open communication among court staff and litigants. But Judge
Keller’s omission did not cause the TDS to be late in its filin,& to forget the other
available avenues, or to fail to have any of its experienced lawyers contact the TCCA.
She did not violate any written or unwritten rules or laws. Of course, that does not
absolve her of the responsibility to ensure that the courts remain fair and just. Her
conduct, however, does not warrant removal from office, or even further reprimand
beyond the public humiliation she has surely suffered.
In the end, perhaps this entire ordeal can have positive consequences for the
future. The TCCA has reduced its oral tradition for its execution day procedure to
written form, which will provide clarity and certainty moving forward. Appellate
counsel. including death penalty lawyers, certainly now know of all of the available
avenues to present a claim, even after the clerk’s office has closed. Finally, we
should all be reminded of the responsibilities a public servant has to ensure and
promote fairness in the criminal justice system.
I take issue with the last sentence. How can we be reminded of the responsibilities of a public servant when we absolve a public servant of her blatant unfairness and bias?
This ruling is mind numbingly frustrating and reminds me of the hyper technical arguments the State often uses to challenge defense arguments on appeal. The rule in Texas seems to be that the police, prosecutor, and judge can make mistakes but the defense lawyers must constantly pursue perfection less our objections be waived. In this case the defense lawyer had another possible way to file his case and since he didn’t do that Judge Keller’s outrageous conduct is given tacit approval and immediately forgiven. This was an opportunity to stand up to a biased judge, instead we pile on defense counsel.