Career of Texas judge accused of turning away death row inmate's appeal rests in board's hands

AUSTIN, Texas (AP) — The top criminal judge in Texas was left waiting Friday to find out if a disciplinary panel would recommend her removal from the state's eminent death-penalty court after charges she closed her courtroom to a death row inmate's last-minute appeal.

Judge Sharon Keller declined to comment after a five-hour hearing before the State Commission on Judicial Conduct, where state investigators argued she is "not the right person" to lead the Texas Court of Criminal Appeals if she can't admit to wrongly turning away a condemned inmate's attorneys the night of his execution.

The panel adjourned without a decision and offered no timetable for a ruling. Keller, a Republican elected to the court in 2006, faces five counts of judicial misconduct.

"She is the public face of criminal justice in the state of Texas," said Mike McKetta, the attorney leading the state's case against Keller. "She has violated a mandatory principal, a duty of her office, in one of the most time-sensitive and irreversible circumstances."

Added McKetta, "That's not the right person and attitude to be the public face."

Keller's attorney, Chip Babcock, urged the panel to dismiss all charges during a sometimes tense exchange with the 13-member commission.

Babcock said the charges resulted from attorneys for Michael Wayne Richard, the man executed in 2007, going on a media blitz and spreading an invented story about Keller villainously closing her court knowing the execution was imminent.

He called it a "calculated strategy" on the part of death-penalty opponents to oust Keller — long mocked as "Sharon Killer" for her rulings — from the court once and for all.

"If you approve of these tactics, no judge is going to be safe and you will have done more to destroy the public confidence of the judiciary than Judge Keller could have possibly done," Babcock said.

Keller faces no criminal charges, and removing a judge not under indictment would be an extraordinary move by the commission. Only twice since 2002 has it happened for poor conduct: one justice of the peace videotaped yelling racial slurs, and another accused of sexually harassing his staff.

The 13-member commission is made up of six judges, two attorneys and five public members. They also could choose to publicly censure Keller if they find her worthy of some reprimand, but undeserving of being removed from the bench.

The most animated part of Friday's hearing came when Babcock told the commission they had "failed" in letting the saga reach this stage. Commissioner Tom Cunningham asked Babcock if he thought Keller had been given a fair hearing in the time leading up to Friday.

"I don't think you did," Babcock said.

Cunningham shot back.

"Isn't it ironic that's what Mr. Richard was asking?"

The remark drew muffled giggles from death penalty opponents in the gallery.

It was September 2007 when Keller received a phone call from a court staffer around 4:45 p.m. to ask if the clerk's office could stay open late. Twice in the conversation Keller said no.

Richard's attorneys said computer problems had delayed their appeal, which they were cobbling together after a U.S. Supreme Court review that morning effectively suspended executions nationwide. Richard would become the last condemned inmate in 2007 to be put to death anywhere in the country.

Computer problems and other obstacles put forth by Richard's attorneys in wake of the execution didn't hold up during a hearing last year. But McKetta said regardless, Keller knew the importance of the phone call and should have routed the call to another judge assigned to accept filings that night.

"At a minimum, Judge Keller was grossly careless in the discharge of her duties in office," McKetta said.

The commission cannot remove Keller from the bench, but would instead forward its recommendation to the Texas Supreme Court. A judge can continue to serve while a recommendation for removal is pending.