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Another Round in Texas Judge's Ethics Investigation

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By Tanya Roth, Esq. on February 24, 2010 9:45 AM

According to a report by the Austin American-Statesman, last Wednesday, prosecutors filed a papers before the Texas State Commission on Judicial Conduct in an effort to have the Honorable Sharon Keller removed from her position as the Chief Judge of the Texas Court of Criminal Appeals. In this on-going case, discussed in a prior post, the charges against Judge Keller stem from her actions on September 25, 2007, when she refused to keep the court clerk's office open to receive a late and last minute appeal by attorneys for death row inmate Michael Richard, scheduled for execution that evening.

Judge Keller's ethics trial was overseen by Special Master David Berchelmann Jr., who issued a decision stating that she had exhibited "poor judgement," but finding she had broken no laws or rules of ethics. But, as often happens when the middle path is taken, the Special Master's report satisfied neither side.

The prosecution's objections to the Findings of Fact center on whether or not Judge Keller broke with the what the prosecutors term the unwritten but "mandatory protocol" requirement to pass all communications regarding a scheduled execution to the judge assigned to handle it; in this case, her colleague Judge Johnson, who was not told of the attempt to file the last minute appeal.

Nor were Judge Keller's attorneys pleased with the findings of Special Master Berchelmann, despite the assertion stated often in their papers that Judge Berchelmann's findings completely exonerated Judge Keller. Keller's attorneys ask the Commission to be cognizant of the holding that Judge Keller's actions broke no rules or laws, but also ask them to dismiss the Special Master's findings that her actions constituted poor judgment because she was not actully charged with "poor judgment." Keller's attorneys dismiss the requirements to forward communications regarding late appeals to the assigned judge as "oral tradition," not required by the court's written laws or rules at that time.

The Commission will meet and decide action after hearing argument by the parties at a session that has not yet been scheduled. The Commission may decide to dismiss the charges, reprimand Judge Keller, or if they find her actions amounted to incompetence, remove her from office all together.

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