Sharon Keller
Encyclopedia
Sharon Faye Keller is the Presiding Judge of the Texas Court of Criminal Appeals
, the highest court for criminal matters in the State of Texas.
in 1975 with a major in philosophy and obtained her J.D.
degree in 1978 from Southern Methodist University School of Law
.
According to the Texas Monthly, when Keller was asked in a preelection interview if she was bound to follow the law, even if it meant an unjust result. “Absolutely,” she replied. “Who is going to determine what justice is? Me? I think justice is achieved by following the law.” According to some who have worked with her, she was also answering to a higher power. “She’s extremely religious,” says a colleague. “She believes strongly that God is on her side. ”She went to Mass every Sunday. “Her commitment to her religion was enormous,” remembers one friend. She is chairman of the Texas Task Force on Indigent Defense. She serves on the Executive Board of the Capitol Area Council of the Boy Scouts of America
.
A laborer born in Juarez and raised on both sides of the border, Fierro was arrested when Gerardo Olague, a 16-year-old, implicated him, five months after Castanon's slaying. Olague testified that Castanon had agreed to give Fierro and Olague a ride to Juarez, and Fierro shot and killed Castanon on the way there. Fierro was in an El Paso jail when police questioned him about the Castanon murder. He stated that local police told him that his parents were being held hostage in Mexico by Juarez detectives. Fierro said in a recent interview from Death Row in Livingston: "He told me if I signed, then they'd let them go, and if not, they were going to torture them." At Fierro's trial, Juarez and El Paso police denied any wrongdoing.
In the opinion, Keller accepted the trial court's conclusion of law that "there was a strong likelihood that the Defendant's confession had been coerced by the actions of the Juarez police and by the knowledge and acqiesence [sic] of those actions by Det. Medrano." However, though acknowledging that Fierro's "due process rights were violated", she concluded that "the error was harmless" and denied the motion for a new trial.
She indicated that the "knowing use of perjured testimony" is trial error and that applicant had to prove harm by a preponderance of evidence. In addition to the confession, the State also had the testimony of Olague. The opinion held that it was more probable that the outcome of the trial would have been the same without the confession.
There were four dissents filed by Judges Clinton, Maloney, Baird, and Overstreet. Overstreet called a confession the "most powerful piece of evidence" a prosecutor can offer. He said it was "totally inconceivable" that Fierro's confession had not convinced the jurors of his guilt. Maloney and Overstreet felt that the burden should have been on the State to show that the "perjured testimony" was harmless. Regardless, they thought that Fierro had proved harm by a preponderance of evidence. They pointed out that the prosecutor had testified that had he known the confession was coerced, he would have joined a motion to suppress it which he felt would have been granted. Without the confession, he would then not have proceeded with the prosecution unless he could have corroborated Olague's testimony because he felt Olague was "not the most credible witness". The dissenters felt that this demonstrated that the prosecutor considered the confession to be critical. Further, in the Supreme Court case the majority cited to support its claim that the perjured testimony was subject to a harmless error analysis, "the Supreme Court recognized that some trial errors may be so egregious as to entitle an applicant to relief even if the error could not be shown to affect the jury's verdict." The dissenters felt that was the case with Fierro.
When the case came to trial in 1990, prosecutors relied primarily on testimony by Pitts, Hooker, and Ringo about Criner's statements to them. Other evidence—including a cigarette butt found at the scene (Criner didn't smoke, and the brand wasn't Ogg's), and, to the "amaze[ment]" of the appellate court, the screwdriver itself—was not introduced. Prosecutor David Walker "failed to tell the jury, or the defense, that the screwdriver had been examined and tested [and showed no tie to the crime], though no written record of any test existed," and District Attorney Mike McDougal claims it was never tested. In sum, the state had 27 pieces of forensic evidence, none of which connected Criner to the crime. Criner's defense lawyers told the Houston Press and Frontline that they believed the evidence against their client "was so shaky that a jury would never convict" so they put on no defense witnesses and did not adequately cross-examine Pitts, who told Frontline that there was no way Criner had time to commit the murder. Nevertheless, Criner was convicted and sentenced to 99 years.
On appeal, Criner claimed that the evidence was insufficient to convict him of rape and insufficient to prove that he was responsible for the aggravating element, i.e. the head injury to Ogg. A majority of the intermediate appellate court agreed with his second claim and thus did not rule on his first one. A majority of the Texas Court of Criminal Appeals
reversed, and the conviction became final.
petition for a new trial, advancing two arguments: an "actual innocence
" claim based on the new DNA evidence, and a Brady claim
. The following year, the district court declined to make factual findings on the actual innocence claim, but recommended Criner receive a new trial on the basis of the Brady claim.
On May 16, 1998, the court in a 5-3 decision, overturned the district court's recommendation without written comment "[b]ecause there is overwhelming, direct evidence that establishes that [Criner] sexually assaulted the victim in this case..." After Judge Baird filed a dissent, Keller issued a written opinion on behalf of the majority. The court dismissed the Brady claim, and focused on the "actual innocence" claim." The majority felt that the DNA evidence was irrelevant: "Evidence that the victim had sexual relations with someone other than [Criner] simply is not evidence that [he] is innocent." The opinion states that "[t]here was testimony that the victim had had many boyfriends and that she 'loved sex.'" However, the opinion does not dispute Judge Baird's assertion that the state did not put on evidence of Ogg's promiscuity at trial. Mike McDougal, the district attorney, denies that his office ever "impugned the reputation of Ogg" and claims not to know where Keller got information about the victim's purported promiscuity. However, the motion he filed in opposing a new trial for Criner, included an affidavit from D.A. investigator John Stephenson that stated he had reviewed "the offense reports in the case," and "One report reflects that the deceased had lots of boyfriends and was very sexually active."
The court agreed with arguments made by the state during the habeas hearing that the absence of Criner's semen could be explained by use of a condom or coitus interuptus and that the state could "produce evidence that the victim had had sexual relations with men other than the applicant", and concluded that "[t]he DNA evidence shows merely that the victim had sex[ ] with someone other than [Criner] at a time relatively near her death. It does not and cannot exclude the possibility that she also had sex[ ] with [Criner]."
After the case was decided, Keller, Baird, Joel Albrecht, the foreman of the trial jury, were among those interviewed by Frontline. Keller emphasized the importance of the finality of judgments, and said that Criner had not unquestionably established he was innocent, the applicable standard according to her. She reiterated that the "DNA evidence establishes that someone else had sex with this girl, who was promiscuous." She added: "DNA evidence means different things in different contexts. It's like fingerprint evidence. If someone's fingerprints are at the scene of a crime, that means the person was there at some time or another. But if his fingerprints aren't there, it doesn't prove that he's innocent of a crime committed at that scene, especially if he's told people that he committed the crime[, as allegedly Criner had]." She also stated that an appellate court "look[s] at [new evidence] to see whether it would have made a difference in their verdict. If it would, he gets a new trial. If it wouldn't, then he doesn't." The Frontline interviewer responded "But you are not the jury."
Albrecht disagreed with Keller's majority opinion and stated: "I don't understand how the court could say what we would do. It would be impossible. I personally think if the DNA came forth stating that it was negative, that the verdict would not have been guilty."
Baird disputed that Criner had "confessed" to the crime (Criner's statements to his friends "did not describe the young lady, or the location, and did not necessarily even describe a sexual act that was consistent with the accusations against [him],"). Further he pointed out that the state did not introduce any evidence at trial to establish Ogg's promiscuity. He accused the state of reversing itself, because it had originally argued that Ogg had not had sex with anybody besides Criner. Further, he pointed out that neither "failure to ejaculate" nor "use of a condom" arguments were presented to the jury at trial which the state does not dispute. He emphasized that juries were the heart of the judicial system. In 2009, Texas Monthly said of this interview that Keller appeared to have considered the DNA evidence "a technicality." The Dallas News said she "offered a clumsy, embarrassing rationale of her decision on national television."
Judge Tom Price, who ran for the Chief Judge seat, in a primary election, said that Keller's Criner opinion had made the court a "national laughingstock." Judge Mansfield, who had sided with the majority in denying Criner a hearing, told the Chicago Tribune that, after watching the Frontline documentary, reviewing briefs and considering the case at some length, he voted "the wrong way" and would change his vote if he could. "Judges, like anyone else, can make mistakes ... I hope I get a chance to fix it." He stated that he hoped Criner's lawyers filed a new appeal as he felt Criner deserved a get a new trial.
pardoned him in 2000.
, a convicted rapist and murderer, was scheduled to be executed by Texas
on September 25, 2007. That day, the U.S. Supreme Court refused a last-minute challenge to Richard's execution. The same morning, however, the court granted review
in Baze v. Rees
, a Kentucky case challenging the constitutionality of the lethal injection protocol used in both that state and Texas (the court later rejected the challenge). Richard's lawyers, the Texas Defender Service ("TDS") wanted a stay of execution pending decision of Baze.
Meanwhile, at the court, the judges—aware of the impending Richards execution and the Supreme Court's intention to hear Baze—polled themselves and were 5—4 against granting a stay to Richards. The court's General Counsel, Edward Marty, began drafting an order denying the motion while Price began drafting a dissent. Sometime after lunch Keller left the office to meet her repairman at home. The court clerk, after receiving the call from a TDS paralegal, called Marty, who in turn called Keller to ask if the clerk's office could stay open late. What Marty told Keller about the request is unclear and disputed, although Keller claims she did understand that the call was about the Richard execution. She told Marty that the clerk's office closes at 5, and Richard was executed later that night.
Keller maintains that it has long been precedent in Texas for late appeals to be hand-delivered to the court or a judge, and that it was not required for them to be filed with the clerk. Rule 9.2(a) of the Texas Rules of Appellate Procedure permits either form of filing, and another judge of the court, Judge Cheryl Johnson was on call to receive such last-minute appeals. Even with the clerk's office closed, and even had Johnson been unavailable, Keller's lawyer says, Rule 9 would have allowed TDS to file the motion with any judge of the court: "'There were 11 doors available to ... [the defense, and t]hey knocked on only one' by calling the deputy clerk and nobody else...." On the other hand, however, prosecutors point to Rule 9.6, which directs that "Parties and counsel may communicate with the appellate court about a case only through the clerk." The two rules appear to be at odds.
subsequently changed its rules to allow for late submissions in death penalty cases and other emergency situations, and recently enabled filing in death penalty execution cases and certain other emergency situations. On February 19, 2009, the State Commission on Judicial Conduct charged Keller with five counts of misconduct. The commission charged Keller with dereliction of duty, denying Richard his right to access to the courts and incompetence in office. It wrote that Keller's actions constituted “willful or persistent conduct that casts public discredit on the judiciary”. The Commission voted to initiate formal proceedings against Keller that included a public trial starting on August 17, 2009 before a Special Master
appointed by the Texas Supreme Court.
Keller's attorneys claimed that TDS "could have easily filed the appeal by calling the on-duty judge," and, as Johnson later testified, "communications about his execution should have gone to her under the CCA's execution-day protocol," they did not contact Johnson (or any other judge of the court), instead pursuing the clerk by cell phone. Johnson testified that she "didn't learn about the request for more time until four days after Richard was executed," although that claim was disputed during Keller's ethics charge hearing. But Keller didn't call Johnson, either, and when Keller's actions were later questioned, both Johnson and prosecutors for the Judicial Conduct Commission charged that Keller violated an ethical duty by failing to inform Johnson of her conversation with the clerk, or directing the request to Johnson. The inmate's attorney at TDS has also been questioned as to why he failed to file at least a handwritten motion for stay of execution before or after 5pm; had he filed the motion, even if rejected, he would have been able to demonstrate to the US Supreme Court that the state appeals process had been exhausted.
Keller testified at her hearing that in hindsight she would do nothing differently.
The Commission on July 16, 2010 issued a "Public Warning" to Keller. The commission’s order said, “by failing to require or assure that staff subject to her direction and control complied with the execution-day procedures on Sept. 25, 2007, Judge Keller interfered with Richard’s access to court and right to a hearing as required by law.” The commission said the public warning was issued “in condemnation” of Keller’s conduct, which it said “casts public discredit on the judiciary or the administration of justice" and "constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as a judge of the Court of Criminal Appeals." On appeal, the Public Warning and the charges against Judge Keller were dismissed on October 11, 2010 by a special court of review.
filed a resolution in the Texas Legislature on February 16, 2009, calling for the impeachment of Keller for “neglect of duty” in regard to her actions involving Michael Richard's appeal. Burnam said: "It’s one thing for a banker to close shop at 5 o’clock sharp. But a public official who stands between a human being and the death chamber must be held to a higher standard." On February 19, 2009, The New York Times
endorsed a legislative inquiry into Keller's behavior: “If the facts are as reported, Judge Keller should be removed from the bench”.
Keller has sought to have the charges dismissed, saying that it would be "financially ruinous" for her to pay a private attorney or law firm to fight the allegations. She amended her personal financial statement in April 2009 to disclose more than $2.4 million in property and income previously left out. Keller claims that her failure to fully disclose her financial information stemmed from error and not a deliberate attempt to mislead. She "faces a civil and criminal complaint alleging she violated state ethics laws by failing to fully disclose her financial assets".
On April 30, 2010, The Texas Ethics Commission fined Keller $100,000 for failure to disclose more than $2M in assets.
Texas Court of Criminal Appeals
The Texas Court of Criminal Appeals is the court of last resort for all criminal matters in the State of Texas, United States. The Court, which is based in the Supreme Court Building in Downtown Austin, is composed of a Presiding Judge and eight judges....
, the highest court for criminal matters in the State of Texas.
Education and early career
Born in Texas, Keller graduated from Rice UniversityRice University
William Marsh Rice University, commonly referred to as Rice University or Rice, is a private research university located on a heavily wooded campus in Houston, Texas, United States...
in 1975 with a major in philosophy and obtained her J.D.
Juris Doctor
Juris Doctor is a professional doctorate and first professional graduate degree in law.The degree was first awarded by Harvard University in the United States in the late 19th century and was created as a modern version of the old European doctor of law degree Juris Doctor (see etymology and...
degree in 1978 from Southern Methodist University School of Law
Dedman School of Law
The Southern Methodist University School of Law, commonly referred to as SMU Law School or Dedman School of Law is a prominent professional graduate law school located in Dallas, Texas. Founded in February 1925, the school remains the only law school in Dallas...
.
According to the Texas Monthly, when Keller was asked in a preelection interview if she was bound to follow the law, even if it meant an unjust result. “Absolutely,” she replied. “Who is going to determine what justice is? Me? I think justice is achieved by following the law.” According to some who have worked with her, she was also answering to a higher power. “She’s extremely religious,” says a colleague. “She believes strongly that God is on her side. ”She went to Mass every Sunday. “Her commitment to her religion was enormous,” remembers one friend. She is chairman of the Texas Task Force on Indigent Defense. She serves on the Executive Board of the Capitol Area Council of the Boy Scouts of America
Boy Scouts of America
The Boy Scouts of America is one of the largest youth organizations in the United States, with over 4.5 million youth members in its age-related divisions...
.
Cesar Fierro case
In 1996, Keller wrote her first major opinion (for a 5-4 majority), which denied a new trial to Cesar Fierro, who had confessed to murdering an El Paso cab driver, Nicholas Castanon. It had been revealed after trial that the Juarez police had threatened to torture the defendant's mother and stepfather unless he confessed. A detective, Al Medrano, was aware that the confession had been coerced but denied it at trial. However, he later filed an affidavit admitting his perjury. The prosecutor and the trial judge agreed that Fierro deserved a new trial; however Keller and the CCA disagreed.A laborer born in Juarez and raised on both sides of the border, Fierro was arrested when Gerardo Olague, a 16-year-old, implicated him, five months after Castanon's slaying. Olague testified that Castanon had agreed to give Fierro and Olague a ride to Juarez, and Fierro shot and killed Castanon on the way there. Fierro was in an El Paso jail when police questioned him about the Castanon murder. He stated that local police told him that his parents were being held hostage in Mexico by Juarez detectives. Fierro said in a recent interview from Death Row in Livingston: "He told me if I signed, then they'd let them go, and if not, they were going to torture them." At Fierro's trial, Juarez and El Paso police denied any wrongdoing.
In the opinion, Keller accepted the trial court's conclusion of law that "there was a strong likelihood that the Defendant's confession had been coerced by the actions of the Juarez police and by the knowledge and acqiesence [sic] of those actions by Det. Medrano." However, though acknowledging that Fierro's "due process rights were violated", she concluded that "the error was harmless" and denied the motion for a new trial.
She indicated that the "knowing use of perjured testimony" is trial error and that applicant had to prove harm by a preponderance of evidence. In addition to the confession, the State also had the testimony of Olague. The opinion held that it was more probable that the outcome of the trial would have been the same without the confession.
There were four dissents filed by Judges Clinton, Maloney, Baird, and Overstreet. Overstreet called a confession the "most powerful piece of evidence" a prosecutor can offer. He said it was "totally inconceivable" that Fierro's confession had not convinced the jurors of his guilt. Maloney and Overstreet felt that the burden should have been on the State to show that the "perjured testimony" was harmless. Regardless, they thought that Fierro had proved harm by a preponderance of evidence. They pointed out that the prosecutor had testified that had he known the confession was coerced, he would have joined a motion to suppress it which he felt would have been granted. Without the confession, he would then not have proceeded with the prosecution unless he could have corroborated Olague's testimony because he felt Olague was "not the most credible witness". The dissenters felt that this demonstrated that the prosecutor considered the confession to be critical. Further, in the Supreme Court case the majority cited to support its claim that the perjured testimony was subject to a harmless error analysis, "the Supreme Court recognized that some trial errors may be so egregious as to entitle an applicant to relief even if the error could not be shown to affect the jury's verdict." The dissenters felt that was the case with Fierro.
Origins
In the evening of September 27, 1986, Roy Criner, a logger from New Caney, Texas, told his boss (Pitts) and two friends (Hooker and Ringo), that he had picked up a hitchhiker, driven her to Pitts' logging facility, threatened to kill her with a screwdriver, raped her, and thrown her out of the truck. Their testimony was not uniform. Ringo later testified that Criner did not specify when the events with the girl took place, while Hooker thought Criner said Friday night; Ringo testified that Criner did not say explicitly that he raped and killed her, while Hooker attributed the rape claim to him, and that Criner had picked the hitchhiker up at a store in New Caney. Earlier that evening, ninth grader Deanna Ogg stopped at a store in New Caney to buy cigarettes and told the cashier that "she was going to a party." Approximately fifteen minutes before Criner told Pitts tale version of the evening's events, Ogg's body was found near the logging facility; she had been raped, beaten, and stabbed. The medical examiner concluded that the wounds could have been made with a screwdriver, "among other things". Five days later, having interviewed Pitts, Hooker, and Ringo, and having found a screwdriver in Criner's truck (he had consented to it being searched), the police arrested Criner for the murder. The murder charge was dropped for lack of evidence, however, and aggravated sexual assault was substituted.When the case came to trial in 1990, prosecutors relied primarily on testimony by Pitts, Hooker, and Ringo about Criner's statements to them. Other evidence—including a cigarette butt found at the scene (Criner didn't smoke, and the brand wasn't Ogg's), and, to the "amaze[ment]" of the appellate court, the screwdriver itself—was not introduced. Prosecutor David Walker "failed to tell the jury, or the defense, that the screwdriver had been examined and tested [and showed no tie to the crime], though no written record of any test existed," and District Attorney Mike McDougal claims it was never tested. In sum, the state had 27 pieces of forensic evidence, none of which connected Criner to the crime. Criner's defense lawyers told the Houston Press and Frontline that they believed the evidence against their client "was so shaky that a jury would never convict" so they put on no defense witnesses and did not adequately cross-examine Pitts, who told Frontline that there was no way Criner had time to commit the murder. Nevertheless, Criner was convicted and sentenced to 99 years.
On appeal, Criner claimed that the evidence was insufficient to convict him of rape and insufficient to prove that he was responsible for the aggravating element, i.e. the head injury to Ogg. A majority of the intermediate appellate court agreed with his second claim and thus did not rule on his first one. A majority of the Texas Court of Criminal Appeals
Texas Court of Criminal Appeals
The Texas Court of Criminal Appeals is the court of last resort for all criminal matters in the State of Texas, United States. The Court, which is based in the Supreme Court Building in Downtown Austin, is composed of a Presiding Judge and eight judges....
reversed, and the conviction became final.
The new DNA evidence
In 1997, the semen found in Ogg was subjected to newly-available DNA testing; it was not Criner's. Criner filed a habeas corpusHabeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
petition for a new trial, advancing two arguments: an "actual innocence
Actual innocence
Actual innocence is a state of affairs in which a defendant in a criminal case is innocent of the charges against them because they did not in fact commit the crime of which they have been accused....
" claim based on the new DNA evidence, and a Brady claim
Brady v. Maryland
Brady v. Maryland, 373 U.S. 83 , was a United States Supreme Court case in which the prosecution had withheld from the criminal defendant certain evidence. The defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United...
. The following year, the district court declined to make factual findings on the actual innocence claim, but recommended Criner receive a new trial on the basis of the Brady claim.
On May 16, 1998, the court in a 5-3 decision, overturned the district court's recommendation without written comment "[b]ecause there is overwhelming, direct evidence that establishes that [Criner] sexually assaulted the victim in this case..." After Judge Baird filed a dissent, Keller issued a written opinion on behalf of the majority. The court dismissed the Brady claim, and focused on the "actual innocence" claim." The majority felt that the DNA evidence was irrelevant: "Evidence that the victim had sexual relations with someone other than [Criner] simply is not evidence that [he] is innocent." The opinion states that "[t]here was testimony that the victim had had many boyfriends and that she 'loved sex.'" However, the opinion does not dispute Judge Baird's assertion that the state did not put on evidence of Ogg's promiscuity at trial. Mike McDougal, the district attorney, denies that his office ever "impugned the reputation of Ogg" and claims not to know where Keller got information about the victim's purported promiscuity. However, the motion he filed in opposing a new trial for Criner, included an affidavit from D.A. investigator John Stephenson that stated he had reviewed "the offense reports in the case," and "One report reflects that the deceased had lots of boyfriends and was very sexually active."
The court agreed with arguments made by the state during the habeas hearing that the absence of Criner's semen could be explained by use of a condom or coitus interuptus and that the state could "produce evidence that the victim had had sexual relations with men other than the applicant", and concluded that "[t]he DNA evidence shows merely that the victim had sex[ ] with someone other than [Criner] at a time relatively near her death. It does not and cannot exclude the possibility that she also had sex[ ] with [Criner]."
After the case was decided, Keller, Baird, Joel Albrecht, the foreman of the trial jury, were among those interviewed by Frontline. Keller emphasized the importance of the finality of judgments, and said that Criner had not unquestionably established he was innocent, the applicable standard according to her. She reiterated that the "DNA evidence establishes that someone else had sex with this girl, who was promiscuous." She added: "DNA evidence means different things in different contexts. It's like fingerprint evidence. If someone's fingerprints are at the scene of a crime, that means the person was there at some time or another. But if his fingerprints aren't there, it doesn't prove that he's innocent of a crime committed at that scene, especially if he's told people that he committed the crime[, as allegedly Criner had]." She also stated that an appellate court "look[s] at [new evidence] to see whether it would have made a difference in their verdict. If it would, he gets a new trial. If it wouldn't, then he doesn't." The Frontline interviewer responded "But you are not the jury."
Albrecht disagreed with Keller's majority opinion and stated: "I don't understand how the court could say what we would do. It would be impossible. I personally think if the DNA came forth stating that it was negative, that the verdict would not have been guilty."
Baird disputed that Criner had "confessed" to the crime (Criner's statements to his friends "did not describe the young lady, or the location, and did not necessarily even describe a sexual act that was consistent with the accusations against [him],"). Further he pointed out that the state did not introduce any evidence at trial to establish Ogg's promiscuity. He accused the state of reversing itself, because it had originally argued that Ogg had not had sex with anybody besides Criner. Further, he pointed out that neither "failure to ejaculate" nor "use of a condom" arguments were presented to the jury at trial which the state does not dispute. He emphasized that juries were the heart of the judicial system. In 2009, Texas Monthly said of this interview that Keller appeared to have considered the DNA evidence "a technicality." The Dallas News said she "offered a clumsy, embarrassing rationale of her decision on national television."
Judge Tom Price, who ran for the Chief Judge seat, in a primary election, said that Keller's Criner opinion had made the court a "national laughingstock." Judge Mansfield, who had sided with the majority in denying Criner a hearing, told the Chicago Tribune that, after watching the Frontline documentary, reviewing briefs and considering the case at some length, he voted "the wrong way" and would change his vote if he could. "Judges, like anyone else, can make mistakes ... I hope I get a chance to fix it." He stated that he hoped Criner's lawyers filed a new appeal as he felt Criner deserved a get a new trial.
The Bush pardon
Following the CAA's refusal to order a new trial, the cigarette butt found at the scene (and not adduced at trial) was subjected to DNA testing. The DNA on the cigarette was not a match for Criner, but it was a match for the semen found in Ogg. Ogg's DNA was also found on the cigarette, indicating that she shared a cigarette with the person who had sex with her (and who presumably killed her). These results convinced the district attorney, local sheriff and the trial judge that Criner was not guilty. The Texas Board of Pardons and Paroles recommended he be pardoned and, citing "credible new evidence [that] raises substantial doubt about [Criner's] guilt," then-Governor George W. BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
pardoned him in 2000.
Background
Michael Wayne RichardMichael Wayne Richard
Michael Wayne Richard was a rapist and murderer whose execution gained notoriety because of procedural problems....
, a convicted rapist and murderer, was scheduled to be executed by Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
on September 25, 2007. That day, the U.S. Supreme Court refused a last-minute challenge to Richard's execution. The same morning, however, the court granted review
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
in Baze v. Rees
Baze v. Rees
Baze v. Rees, 553 U.S. 35 , was a United States Supreme Court case. The court agreed to hear the appeal of two men, Ralph Baze and Thomas Bowling, who were sentenced to death in Kentucky. The men argue that executing them by lethal injection would violate the 8th Amendment prohibition of cruel and...
, a Kentucky case challenging the constitutionality of the lethal injection protocol used in both that state and Texas (the court later rejected the challenge). Richard's lawyers, the Texas Defender Service ("TDS") wanted a stay of execution pending decision of Baze.
Meanwhile, at the court, the judges—aware of the impending Richards execution and the Supreme Court's intention to hear Baze—polled themselves and were 5—4 against granting a stay to Richards. The court's General Counsel, Edward Marty, began drafting an order denying the motion while Price began drafting a dissent. Sometime after lunch Keller left the office to meet her repairman at home. The court clerk, after receiving the call from a TDS paralegal, called Marty, who in turn called Keller to ask if the clerk's office could stay open late. What Marty told Keller about the request is unclear and disputed, although Keller claims she did understand that the call was about the Richard execution. She told Marty that the clerk's office closes at 5, and Richard was executed later that night.
Keller maintains that it has long been precedent in Texas for late appeals to be hand-delivered to the court or a judge, and that it was not required for them to be filed with the clerk. Rule 9.2(a) of the Texas Rules of Appellate Procedure permits either form of filing, and another judge of the court, Judge Cheryl Johnson was on call to receive such last-minute appeals. Even with the clerk's office closed, and even had Johnson been unavailable, Keller's lawyer says, Rule 9 would have allowed TDS to file the motion with any judge of the court: "'There were 11 doors available to ... [the defense, and t]hey knocked on only one' by calling the deputy clerk and nobody else...." On the other hand, however, prosecutors point to Rule 9.6, which directs that "Parties and counsel may communicate with the appellate court about a case only through the clerk." The two rules appear to be at odds.
State Commission on Judicial Conduct charges
More than 300 lawyers signed on to official judicial complaints about Keller's actions to both the State Bar of Texas and the Texas State Commission on Judicial Conduct. The Texas Court of Criminal AppealsTexas Court of Criminal Appeals
The Texas Court of Criminal Appeals is the court of last resort for all criminal matters in the State of Texas, United States. The Court, which is based in the Supreme Court Building in Downtown Austin, is composed of a Presiding Judge and eight judges....
subsequently changed its rules to allow for late submissions in death penalty cases and other emergency situations, and recently enabled filing in death penalty execution cases and certain other emergency situations. On February 19, 2009, the State Commission on Judicial Conduct charged Keller with five counts of misconduct. The commission charged Keller with dereliction of duty, denying Richard his right to access to the courts and incompetence in office. It wrote that Keller's actions constituted “willful or persistent conduct that casts public discredit on the judiciary”. The Commission voted to initiate formal proceedings against Keller that included a public trial starting on August 17, 2009 before a Special Master
Special master
In law, a special master is an authority appointed by a judge to make sure that judicial orders are actually followed.In England, at common law, there were "Masters in Chancery," who acted in aid of the Equity Courts. There were also "Masters in Lunacy," who conducted inquiries of the same nature...
appointed by the Texas Supreme Court.
Keller's attorneys claimed that TDS "could have easily filed the appeal by calling the on-duty judge," and, as Johnson later testified, "communications about his execution should have gone to her under the CCA's execution-day protocol," they did not contact Johnson (or any other judge of the court), instead pursuing the clerk by cell phone. Johnson testified that she "didn't learn about the request for more time until four days after Richard was executed," although that claim was disputed during Keller's ethics charge hearing. But Keller didn't call Johnson, either, and when Keller's actions were later questioned, both Johnson and prosecutors for the Judicial Conduct Commission charged that Keller violated an ethical duty by failing to inform Johnson of her conversation with the clerk, or directing the request to Johnson. The inmate's attorney at TDS has also been questioned as to why he failed to file at least a handwritten motion for stay of execution before or after 5pm; had he filed the motion, even if rejected, he would have been able to demonstrate to the US Supreme Court that the state appeals process had been exhausted.
Keller testified at her hearing that in hindsight she would do nothing differently.
The Commission on July 16, 2010 issued a "Public Warning" to Keller. The commission’s order said, “by failing to require or assure that staff subject to her direction and control complied with the execution-day procedures on Sept. 25, 2007, Judge Keller interfered with Richard’s access to court and right to a hearing as required by law.” The commission said the public warning was issued “in condemnation” of Keller’s conduct, which it said “casts public discredit on the judiciary or the administration of justice" and "constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as a judge of the Court of Criminal Appeals." On appeal, the Public Warning and the charges against Judge Keller were dismissed on October 11, 2010 by a special court of review.
Result
Special Master David Berchelmann, Jr., issued his findings of fact on January 20, 2010. He concluded that "there is a valid reason why many in the legal community are not proud of Judge Keller's actions" but that she had violated no law or ethical rule, and recommended no further sanction against Keller "beyond the public humiliation she has surely suffered." Moreover, while Keller should have referred execution-related requests to Johnson, she had good reason to believe that the request was an operational question within her bailiwick as Chief Judge rather than an execution-related question within Johnson's. The report finds that it is TDS, not Keller, that "bears the bulk of fault for what occurred." After its litany of execution day blunders, TDS sought absolution by engaging in a "distorti[ng]" campaign of disinformation to "tr[y] th[e] case in the media," "causing a public uproar against Judge Keller, much of which was unwarranted." The report also acknowledges that there is no evidence in the record supporting the computer problems that allegedly delayed the preparation of TDS' motion.Impeachment proceedings
Texas State Representative Lon BurnamLon Burnam
Lon Maxwell Burnam is the Texas state representative for Texas House district 90, which encompasses downtown Fort Worth and surrounding areas. Burnam, a Democrat, serves as the executive director of the Dallas Peace Center....
filed a resolution in the Texas Legislature on February 16, 2009, calling for the impeachment of Keller for “neglect of duty” in regard to her actions involving Michael Richard's appeal. Burnam said: "It’s one thing for a banker to close shop at 5 o’clock sharp. But a public official who stands between a human being and the death chamber must be held to a higher standard." On February 19, 2009, The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
endorsed a legislative inquiry into Keller's behavior: “If the facts are as reported, Judge Keller should be removed from the bench”.
Fined $100,000 for Failure To Disclose Assets
The Dallas Morning News claimed on March 30, 2009, that Keller had "failed to abide by legal requirements that she disclose nearly $2 million in real estate holdings."Keller has sought to have the charges dismissed, saying that it would be "financially ruinous" for her to pay a private attorney or law firm to fight the allegations. She amended her personal financial statement in April 2009 to disclose more than $2.4 million in property and income previously left out. Keller claims that her failure to fully disclose her financial information stemmed from error and not a deliberate attempt to mislead. She "faces a civil and criminal complaint alleging she violated state ethics laws by failing to fully disclose her financial assets".
On April 30, 2010, The Texas Ethics Commission fined Keller $100,000 for failure to disclose more than $2M in assets.