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Texas Judge "Vindicated" by Ethics Report?

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By Tanya Roth, Esq. on January 22, 2010 9:50 AM

As so often happens in our legal system, issues of law, ethics and procedure are rarely black and white, rarely easily resolved. Another example of this truism was announced yesterday, in the decision "vindicating" embattled Texas Judge Sharon Keller. The report by special master Judge David Berchelmann, who oversaw Keller's ethics trial, finds that Judge Keller did nothing to warrant removal from the bench or further punishment "beyond the public humiliation she has surely suffered."

Judge Berchelmann found that there was more than enough blame to go around for the bungled last second appeal of convicted rapist and murderer Michael Wayne Richard in 2007. According to reports, at approximately 4:45 p.m., the Texas Defender Service placed a call to Judge Keller's court saying they were running late and could they possibly still file Richard's appeal and request for stay of execution after the court closing time of 5:00? Judge Keller, who some sources say was at home awaiting a repair man at the time (though "accessible" as noted by Judge Berchelmann), gave an answer of an unequivocal "no," twice. 

Among other things, the report takes the judge to task for not being more "open and helpful" in her approach, words that unfortunately slide toward a slightly sexist expectation of what would be appropriate behavior from Judge Keller. But the report also makes a more appropriate and pointed statement, finding that Keller's "judgment in not keeping the clerk's office open past 5:00 to allow the TDS to file was highly questionable," and that despite the fact she did not violate any laws, she did not rise to her responsibility to ensure the "courts remain fair and just." He also noted, "there is valid reason why many in the legal community are not proud of Judge Keller's actions."

Judge Berchelmann's report did not let the lagging lawyers of the Texas Defense Service off the hook. According to the report, the actual bulk of the blame lay with them. The report finds the TDS should not have waited as long as they did after the Supreme Court agreed to hear a case that could have lead to a reprieve (if only temporary) for their client. In addition, the TDS should not have allowed inexperienced attorneys and paralegals to deal with Judge Keller's court and the necessary paperwork, but had the more seasoned staffers take on what was clearly an emergency action. Andrea Keilen, executive director for Texas Defender Service, said shifting blame from Keller to her organization was "akin to blaming a paramedic for a car crash victim's injuries." 

There is an old saying: you catch more flies with honey than with vinegar. Possibly, the legal system also functions more smoothly with a touch of honey. Indeed, Judge Berchelmann wrote that we should realize that "open communication benefits the interests of justice." Judge Keller will have time to ponder her mode of communication with colleagues and adversaries as she awaits the hearing by the State Commission on Judicial Conduct - which can still vote to remove her from office, reprimand her, or dismiss the charges entirely.

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