Texas State's criminal judge feels vindicated by ruling

By Michael Graczyk

Associated Press Writer

AUSTIN, Texas (AP) -- Texas' top criminal judge said Tuesday she feels vindicated that a special court dismissed a public reprimand of her for closing her court and preventing lawyers from filing a last-minute appeal hours before their client was executed.

"What happened to me shouldn't happen to any judge," Texas Court of Criminal Appeals Presiding Judge Sharon Keller told The Associated Press during an interview at her courthouse office.

Keller, 57, was absolved last week of wrongdoing, ending a legal fracas that began after she infamously ordered the court shut at 5 p.m. on Sept. 25, 2007, which lawyers for condemned killer Michael Richard said blocked them from filing a last-minute appeal. Richard was executed that night for the rape and slaying of a Houston-area nurse who had seven children.

The state Commission on Judicial Conduct issued Keller a "public warning" but she appealed, arguing the commission exceeded its authority and violated the state constitution. The court of review agreed.

In her first extensive comments about the case, Keller was critical of the judicial conduct panel, said she believed she's been targeted all along by death penalty opponents and unfairly labeled "Killer Keller."

"It's ridiculous," she said of the nickname. "People tend to know one thing about a person and think that is all there is to know. ... The 'Killer Keller' stuff, it's just not civil. It has not been pleasant at all.

"It's just bizarre to me that people who know nothing except what they read in the newspaper will jump on it and get behind it to the extent that they have."

She said her critics have overlooked her work chairing a task force that provides legal aid for the indigent, and another that ensures offenders with mental illness receive proper treatment.

"It's like it doesn't matter," she said.

"I'm required to look at the law ... So what happened that day makes it sound like we're a very cold, unfeeling court. And that's just not true."

Echoing arguments her lawyer made to the court of review, Keller accused the judicial conduct panel of overstepping its authority, which she said has gone on "for a long time." She said judges have told her they accepted reprimands they didn't deserve "because the danger and expense of appealing was just overwhelming."

She said it's cost her over $100,000 to clear her record, that her home has been targeted by demonstrators and that authorities have investigated at least one credible death threat against her.

The death threat came during her ethics trial a year ago where state district Judge David Berchelmann recommended she receive no reprimand "beyond the public humiliation she has surely suffered."

"I always felt once I got before a neutral judge, someone who hadn't prejudged me, I'd be in pretty good shape," she said. "And in fact, that's how it turned out."

Keller, an elected Republican, said she briefly considered resigning but dismissed the thought because it would be perceived as caving.

"I never seriously thought about doing anything other than what I've done."

"I also don't want people to get the idea they ran me off," said Keller, who is serving her third six-year term and plans to run again in 2012.

She's bracing for a fierce election challenge that's likely to re-ignite the debate over her handling of the Richard case.

"I can deal with it," she said. "I have to deal with it, but I can."

Richard's lawyers said they told Keller that computer problems were preventing them from delivering their appeal. She responded, "We close at 5," and closed the court.

"They knew how to file after business hours. But they somehow didn't file anything," Keller said.

At that time, the clerk's office closed by law at 5 p.m., the judge said. "And we had always closed the clerk's office at 5 o'clock even when executions were at midnight, and relied on lawyers to use the after-hours filing procedures," she said.

"I guess I thought people knew what they were doing."

Even after hours, all inmate lawyers needed to do was to get hold of a judge to accept the pleading, she said.

"If you keep the clerk's office open, and they don't file anything, what do you do at 6 o'clock and what do you do at 6:30 when they say it's almost there?" she asked.

She said such a scenario has occurred, and by the time the court filing was made and ruled on, lawyers had succeeded in putting off the execution.

After the Richard execution, the appeals court changed its rules to bar most appeals within 48 hours of an execution to prevent last-minute scrambling.

In a written report of her ethics case, Berchelmann earlier this year did not completely absolve Keller of fault, calling some of her actions "highly questionable," but said she wasn't to blame for Richard being executed.

He also was critical of Richard's lawyers, saying they embellished claims of computer problems and weren't telling the truth when they said they were ready to file an appeal at 5:20 p.m. He also said they unwisely relied on paralegals to communicate with the appeals court that night and failed to exhaust all possible means of filing their appeal.

Texas Civil Rights Project Director Jim Harrington labeled the dismissal of the public reprimand against Keller as "pathetic, to be honest."

"You can see why people are so cynical," said Harrington, who was among lawyers filing complaints to the judicial review board against the judge. "I've been doing this for almost 40 years and you see this, judges playing games, it's kind of disgusting."

Published: Thu, Oct 21, 2010