October 30, 2007

To: State Commission on Judicial Conduct

PO Box 12265
Austin, TX 78711-2265

From: The Undersigned Members of the Public

Re: Judge Sharon Keller

Presiding Judge, Texas Court of Criminal Appeals

Dear Members of the Commission:

We wish to file a formal complaint against Judge Sharon Keller (Presiding Judge,
Texas Court of Criminal Appeals) and ask that you take immediate and severe
disciplinary action. Keller may have abused her official position to impede
Michael Richard's access to her court and thus to justice on the day he was
executed by the State of Texas. It is clear from her actions that Judge Keller can
no longer be expected to preside over death penalty cases with the requisite fair,
bias-free and even-handed disposition so critical to such serious life and death
matters. Justice was not done in the Richard case, and if it was not done because
Keller dishonestly said "We close at 5", then there is no question that Keller is
unfit to be a judge and should be removed from office.

SUMMARY STATEMENT

This complaint involves a situation in which Judge Keller refused to allow the
attorneys for Michael Richard, scheduled to be executed on the same day, to file
pleadings on his behalf, based on a grant of certiorari by the U.S. Supreme Court
that same day on the question of the constitutionality of lethal injection. The
attorneys had requested that the court clerk’s office remain open twenty minutes
past the 5pm closing time because they had experienced computer failure in the
preparation of their pleading. Judge Keller refused the request, even though she
was not the judge assigned to the Richard case. As a result, Richard then was
executed by lethal injection.

Judge Keller has been quoted in the media as having told the clerk of the Court
to convey to Richard’s lawyers that “We close at 5”. However, other judges have
said in the media that they were in the building and willing to accept the
submission. It appears that Keller may have lied by saying, “We close at 5”,
when she knew very well that the appeal could be accepted after 5 and that the
court does not “close” at 5, because judges on her court are able to be reached
and able to issue orders to stay executions even after 5.

Judge Keller’s actions denied Michael Richard two constitutional rights, access to
the courts and due process, which led to his execution. Her actions also brought
the integrity of the Texas judiciary and of her court into disrepute and was a
source of scandal to the citizens of the state. In addition, her actions may make it
more difficult for law enforcement personnel to bring offenders to justice, if
people do not believe that they will be accorded due process and fair treatment
by the Presiding Judge of the Texas Court of Criminal Appeals.

FACTS

Without a ruling by the Texas Court of Criminal Appeals on Richard’s appeal,

the U.S. Supreme Court could not consider his appeal or a request to stay his
execution, pending a Supreme Court decision. Court of Criminal Appeals judges
were standing by on September 25 to work the evening on which Michael
Richard was executed because they expected his lawyers to file an emergency
appeal based on the U.S. Supreme Court’s decision earlier in the day to consider
a Kentucky case challenging the constitutionality of lethal injection. At least three
judges were working in the courthouse at the time, including the judge assigned
to the Richard case, and others were available by phone, if needed, according to
court personnel. Presiding Judge Keller refused to allow the emergency 11th
hour appeal to be filed after 5pm. Richard’s lawyers had requested the court
clerk to stay open for an extra twenty minutes so they could file their petition for
stay of execution. They had experienced severe computer problems in preparing
the pleading and so informed the clerk. Judge Keller refused the request, and
Richard was put to death.

Neither Judge Keller nor the court’s general counsel, Edward Marty, who had
consulted with Judge Keller on the request to stay open, advised any of the
judges of the request by Richard’s attorneys. Judge Keller did not consult Judge
Cheryl Johnson, who was assigned the case. Judge Keller acknowledged she
[Johnson] was at the court at the time. Johnson told the Austin American-
Statesman she was dismayed by Keller's decision. "And I was angry," she told
the paper. "If I'm in charge of the execution, I ought to have known about those
things … I mean this is a death."
According to undisputed press accounts, Judge Cathy Cochran said, “There were
plenty of judges here, and there were plenty of other personnel here. A number
of judges stayed very late that evening, waiting for a filing from the defense
attorney.” She said she herself had gone home, but was available by telephone.
Judge Cochran said, at the least, a decision should have been made by the full
court on whether to accept the appeal. “I would definitely accept anything at any
time from someone who was about to be executed,” she said.

In an opinion piece the Houston Chronicle published a month before Keller was
elected, she called the failure to impose capital punishment on convicted
murderers "a human rights violation -- particularly if we take into account the
human rights that murderers violate when left alive to kill again." This statement
shows an extreme bias towards the use of capital punishment that is inconsistent
with the duties of a judge. Keller’s action in the Richard case show that she
believed her self-declared human right to impose capital punishment was more
important than protecting the constitutional rights of a man about to be executed.

CONSTITUTIONAL RIGHTS IMPLICATED

Texas Constitution, Article I Section 13:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel or
unusual punishment inflicted. All courts shall be open, and every person for an
injury done him, in his lands, goods, person or reputation, shall have remedy by
due course of law.

U.S. Constitution, Amendment XIV, Section 1:

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein they
reside. No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.

These constitutional rights have specific applicability with regard to Canon

3(B)(8), which follows.

APPLICABLE CANONS

Judge Keller’s actions appear to have violated at least four provisions of the
Texas Code of Judicial Conduct and the goals set forth in the Preamble:
Preamble
Our legal system is based on the principle that an independent, fair and
competent judiciary will interpret and apply the laws that govern us. The role of
the judiciary is central to American concepts of justice and the rule of law.
Intrinsic to all sections of his Code of Judicial Conduct are the precepts that
judges, individually and collectively, must respect and honor the judicial office
as a public trust and strive to enhance and maintain confidence in our legal
system.. The judge is an arbiter of facts and law for the resolution of disputes and
a highly visible symbol of government under the rule of law.

The Code of Judicial Conduct is not intended as an exhaustive guide for the
conduct of judges. They should also be governed in their judicial and personal
conduct by general ethical standards. The Code is intended, however, to state
basic standards which should govern the conduct of all judges and to provide
guidance to assist judges in establishing and maintaining high standards of
judicial and personal conduct.

Canon 1: Upholding the integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our
society. A judge should participate in establishing, maintaining and enforcing
high standards of conduct, and should personally observe those standards so
that the integrity and independence of the judiciary is preserved. The provisions
of this Code are to be construed and applied to further that objective.

Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the

Judge’s Activities
A. A judge shall comply with the law and should act at all times in a
manner that promotes public confidence in the integrity and impartiality of the
judiciary.

Canon 3: Performing the Duties of Judicial Office Impartially and Diligently

B. Adjudicative Responsibilities
(5) A judge shall perform judicial duties without bias or prejudice.
(8) A judge shall accord to every person who has a legal interest in a
proceeding, or that person’s lawyer, the right to be heard according to law…
(9) A judge should dispose of all judicial matters promptly, efficiently and
fairly.
C. Administrative Responsibilities
 (1) A judge should diligently and promptly discharge the judge’s
administrative responsibilities without bias or prejudice and maintain
professional competence in judicial administration, and should cooperate with
other judges and court officials in the administration of court business.

We ask that the Commission determine the underlying facts and, if they are
similar to the facts described above, and in news accounts, we ask that you take
appropriate disciplinary action.

Thank you for your attention to this matter. We look forward to hearing back
from you. Attached is a list of witnesses to the event.

Sincerely,

The Undersigned
(list of signers will be attached)

Witnesses:
Hon. Sharon Keller (Presiding Judge, Texas Court of Criminal Appeals)
Hon. Cathy Cochran (Judge, Texas Court of Criminal Appeals)
Hon. Paul Womack (Judge, Teas Court of Criminal Appeals)
Hon. Cheryl Johnson (Judge, Texas Court of Criminal Appeals)
Hon. Tom Price (Judge, Texas Court of Criminal Appeals)
Edward Marty (General Counsel, Texas Court of Criminal Appeals)
Clerk, Texas Court of Criminal Appeals
Professor David Dow (Texas Innocence Network, University of Houston Law
Center)
Andrea Keilen (Executive Director, Texas Defender Service)