Embattled Texas judge Keller faces possible removal, but state panel seldom has jurists tossed

History favors Texas judge facing possible removal

SAN ANTONIO — When Texas Judge Sharon Keller answers charges Friday of callously closing her courtroom to a man on death row, she could join the disgraced list of Texas jurists not indicted but still taken off the bench.

That dishonorable list is a handful of municipal court judges who fell behind on required coursework and two ill-behaving justices of the peace.

Keller faces no criminal charges, making it historically unlikely that a state panel will recommend removing the presiding judge of the Texas Court of Criminal Appeals, who famously said “We close at 5″ while attorneys for a condemned man scrambled to file a last-minute appeal before his execution in 2007.

The appeal never made it. Critics from death penalty opponents to The New York Times editorial board have since called for Keller’s ouster, and the State Commission on Judicial Conduct will finally consider her fate Friday.

But even if the panel upholds five charges of judicial misconduct against Keller, losing her job might be a longshot. Only six times since 2002 has the commission removed a judge not under indictment.

“It has to be very serious,” said former commission chairman James Hall, a San Antonio lawyer whose term ended in 2005. “They do not do take that lightly.”

The last time the state removed a judge who wasn’t under indictment was 2005. All who have been removed have been either municipal judges or justices of the peace — jurists who largely handled misdemeanor cases like parking tickets or school truancy.

Keller is the highest-ranking criminal judge in Texas, presiding over the court of last resort for inmates on death row. That would make her ouster a virtually unprecedented decision by the 13-member commission.

Prosecutors have not recommended a punishment for Keller, but they don’t rule out the commission finding her conduct bad enough to warrant removal.

Leading the charge against Keller is Seana Willing, the commissioner’s executive director, who is known as the examiner in the case.

“The examiners will present a case where that option is on the table,” Willing said.

Chip Babcock, Keller’s attorney, dismissed the possibility of Keller losing her job.

“Judge Keller did get over 2 million votes the last three times she ran for election,” Babcock said. “So you’re negating the will of the electorate over a 60-second phone call.”

Few conversations so brief have stirred such uproar. It was September 2007 when Keller received a phone call from a court staffer around 4:45 p.m. to ask if the clerk’s office could stay open late. Twice in the conversation Keller said no.

The phone call was prompted by attorneys for Michael Wayne Richard, a twice-convicted killer scheduled for execution that night. They told the court that computer problems had delayed their appeal, which they were cobbling together after a U.S. Supreme Court review that morning effectively suspended executions nationwide.

Feeling they had been turned away, Richard’s lawyers never filed the appeal. Richard was executed that night, becoming the last condemned inmate in 2007 to be put to death anywhere in the country.

A state district judge who oversaw Keller’s ethics trial last year recommended that she receive no “further reprimand beyond the public humiliation she has surely suffered.” But the ultimate decision rests with the commission.

The panel consists of six judges, two attorneys and five appointed members. They can dismiss the charges, censure Keller or recommend her removal to the Texas Supreme Court.

All but six of the 33 judges recommended for removal by the commission since 2002 also faced criminal charges for their alleged misdeeds. Of those six, four were municipal judges who fell behind on required judicial education hours.

The others were justices of the peace, one of whom was videotaped yelling racial slurs at prisoners. The second was accused of sexual harassment on the job.

Randall County Judge Ernie Houdashell served two years on the commission before the workload overwhelmed him. He said he walked away impressed by the thoroughness of the commission.

“There is not one thing that ever happened while I was there that I thought was unfair,” Houdashell said. “These people gives these judges every benefit of the doubt.”