Texas Supreme Court lets stand reprimand for top judge’s handling of execution-day appeal

By Michael Graczyk, AP
Monday, August 16, 2010

Judge’s reprimand in death penalty case stands

HOUSTON — The Texas Supreme Court refused Monday to overturn a judicial conduct panel’s reprimand of the state’s highest criminal court judge for her handling of an execution-day appeal.

Judge Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, had appealed the “public warning” the State Commission on Judicial Conduct gave her July 16. The warning was one of the least severe sanctions that panel could have imposed, but Keller’s lawyer claimed the Texas Constitution didn’t allow such a warning.

The Supreme Court disagreed.

The brief order from the court in Austin indicated only that Keller’s petitions in the case were denied and Justice Nathan Hecht did not participate in the ruling.

“Obviously, we’re disappointed they didn’t accept the case for review,” said Keller’s attorney, Chip Babcock.

The reprimand stemmed from the 2007 execution of twice-convicted killer Michael Wayne Richard. His lethal injection came the same day the U.S. Supreme Court agreed to consider a Kentucky case claiming the method of punishment was unconstitutionally cruel.

Richard’s lawyers, who were scrambling to file a last minute appeal, told Keller they were having computer problems that were preventing them from delivering their appeal. She responded, “We close at 5,” and closed the court.

Hours later, Richard was executed for the 1986 rape and slaying of a Harris County nurse at her home. He became the last condemned killer put to death anywhere in the U.S. for months because the U.S. Supreme Court ruling effectively stopped executions nationwide.

The 13-member judicial conduct panel could have recommended the Texas Supreme Court remove Keller from the bench but such action would have been historically extraordinary. The commission did say her actions amounted to “willful or persistent conduct that is clearly inconsistent with the proper performance of her duties.” It also decided she had cast “public discredit on the judiciary.”

Keller then appealed, asking for the public warning to be removed from her record and allegations of judicial misconduct to be dismissed.

The case is “by no means” over, Babcock said Monday. He said he was writing a letter Monday asking Supreme Court Chief Justice Wallace Jefferson to appoint a special court of review or hold an entirely new trial similar to the one Keller had before the Judicial Conduct Commission.

“Whatever the court thinks is appropriate,” he said. “We could have another trial in front of three judges appointed by the court if the court decides it’s permissible.”

Babcock acknowledged such a proceeding would be “unusual” and something that hadn’t happened before.

Texas is the nation’s most active death penalty state. Keller, a Republican, was elected in 2006 to the court that serves as the last resort for inmates facing execution there.

Her lawyers claim the misconduct case as an attempt by death penalty opponents to have her removed from the bench. Her term expires in 2012, and it’s unclear if she’ll run for re-election.

(This version CORRECTS the full version of the story to say the case the U.S. Supreme Court decided to hear on the day Richard was executed dealt with lethal injection, not mental illness.)

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