Judge blames defense for executed inmate's botched appeal

Texas Court of Criminal Appeals Presiding Judge Sharon Keller shouldn’t lose her job or be punished “beyond the public humiliation she has surely suffered” for refusing to accept a last-minute appeal from a death row inmate, a special master presiding over her ethics trial concluded Wednesday.
In his report, State District Judge David Berchelmann also wrote that the Texas Defender Service, which represented death row inmate Michael Wayne Richard, “bears the bulk of fault for what occurred on September 25, 2007.”
The 16-page report was released five months after a high-profile hearing in which the State Commission on Judicial Conduct accused the state’s highest-ranking criminal judge of bringing “public discredit” to the judiciary. Despite the allegations, Keller has remained the presiding judge of the Texas Court of Criminal Appeals.
Seana Willing, the commission’s executive director, said Berchelmann’s report is a recommendation and that Keller still faces five judicial misconduct charges. She said the 13-member commission will decide whether to dismiss the charges, reprimand her or recommend that the Texas Supreme Court remove Keller from office. No date has been set for a hearing.
In a brief statement made through her attorney, Keller said she was gratified for Berchelmann’s report, which finds that she “did not violate any written or unwritten rules or laws.”
“In terms of the charges, that’s a 100 percent vindication,” said her attorney, Chip Babcock. “I don’t think the judge could have been any clearer.”
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.”
“It is clear that Mr. Richard would not have been executed but for the violation of the (Court of Criminal Appeals’) own execution day protocol and the decision to refuse to allow Mr. Richard to file his pleading after five o’clock,” Keilen wrote in an e-mailed statement.
Keller took a telephoned request just before 5 p.m., an hour before Richard’s scheduled execution, that the court clerk’s office stay open past normal business hours so his lawyers could file a final appeal. Richard’s attorneys alleged computer problems delayed their efforts to submit the paperwork.
Keller twice said no.
In making his decision, Berchelmann noted that Keller asserted she was referring only to closing the clerk’s office, not the court as a whole. He wrote that if Richard’s attorneys had called one of the other judges, the attorneys likely would have been able to present the claim.


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