Prosecutors: Texas judge who refused to keep court open for death row appeal must be punished

Prosecutors: death row judge deserves punishment

SAN ANTONIO — Prosecutors urged a state panel Wednesday to punish a Texas judge for refusing to keep her court open past 5 p.m. to hear a last-minute appeal by a death-row inmate, and to ignore a key report that says she had been humiliated enough.

The state Commission on Judicial Conduct will decide whether to reprimand Judge Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, for refusing to accept the late appeal in September 2007 from a twice-convicted killer.

Prosecutors who put Keller on trial last year renewed their stance that she deserves punishment, though gave no specific recommendation to the commission.

“Judge Keller’s unapologetic defense, and her adamant testimony that she would no nothing different if presented again with the same circumstances, is a total failure in any acceptance of accountability,” the report to the commission read.

“Her conduct authorizes action,” the report said.

The 13-member commission has not set a date to meet and decide. Keller could be removed from the bench, reprimanded or have all five charges of judicial misconduct against her dismissed.

Keller won a victory last month when state district Judge David Berchelmann, who presided over her ethics trial last fall, recommended that Keller receive no reprimand “beyond the public humiliation she has surely suffered.”

Chip Babcock, Keller’s attorney, said he was disappointed that the prosecutors continue to pursue Keller in the wake of Berchelmann’s findings.

“I think the judge absolutely got it,” Babcock said.

Mocked as “Sharon Killer” by her detractors, Keller has remained on the bench since the uproar began after Michael Wayne Richard was executed. At the heart of the charges against her is whether she denied Richard the ability to file a late appeal in the hours before his execution.

Keller received a phone call at 4:45 p.m. the day of Richard’s execution from a court staffer asking if the court would stay open past its normal closing time for Richard’s lawyers, who were running late with an appeal. Twice during the conversation Keller said no.

Berchelmann did not completely absolve Keller of fault in his report, calling some of her actions “highly questionable,” but he said Keller wasn’t to blame for Richard being executed.

But in a stinging rejection of Berchelmann’s findings, prosecutors said the issue of what caused Richard’s execution was irrelevant to the misconduct charges. They criticized Berchelmann for putting too much focus on the actions of Richard’s lawyers, and alleged that the San Antonio judge went beyond the scope of his job by recommending that Keller not be reprimanded.

Prosecutors allege Keller “cast public discredit” on the judiciary and denied Richard the right to be heard. When Keller received the call asking whether the court could stay open late, prosecutors said she was required by court protocol to direct the call to the appellate judge on duty that night.

“Judge Keller chose, instead, to address the communication and dispose of it,” the report said.

The report goes on to call Keller’s actions “incompetent” and “willfull.”

Despite lauding Berchelmann’s findings as a validation for Keller, Babcock also filed his own objections Wednesday for the commission to consider.

Among them was Berchelman’s finding that Keller showed “highly questionable” judgment in not keeping the clerk’s office open past 5 p.m. so that Richard’s lawyers could file. Babcock said the clerk’s office never stayed open past 5 p.m. — even on previous execution days — and that Richard’s appeal still could have been filed directly with the judge on duty that night.

On Sept. 25, 2007, Richard was executed for the brutal 1986 rape and slaying of Marguerite Dixon, a Houston-area nurse and mother of seven. He was twice-convicted and failed numerous appeals.

But on the morning of his scheduled execution, his attorneys saw a window of reprieve when the Supreme Court agreed to review a challenge to Kentucky’s three-drug combination used in executions. Texas uses a similar lethal cocktail, which was the basis of Richard’s final appeal.