The "Killer" Keller Case: When Judges Go Bad


Having watched Spencer Tracy in Inherit The Wind Tuesday night, having therefore been sensitized again to the layers of injustice this country has so frequently tolerated from its "justice system," it was particularly disappointing to read just one evening later the disgracefully apologetic "findings of fact" issued Wednesday in the case of Texas Court of Criminal Appeals Judge Sharon Keller.

You remember Keller. She is the judge who told a capital defendant's lawyers trying to file an important brief on the eve of his execution, "We close at 5," before leaving early for the afternoon to go home to meet a repairman. The judge didn't tell her colleagues about the pending delivery of court papers and didn't tell defense attorneys about other filing options available to them. The death row inmate, Michael Richard, was subsequently executed.

Keller was so cavalier in handling the Richard matter--her conduct was so below that which even Texas expects from its appellate judges--that she was brought up on ethics charges before the State Commission on Judicial Ethics, which conducted a significant hearing last year. This week, one of Keller's judicial colleagues, District Judge David Berchelmann Jr., concluded that while Keller's conduct was not "exemplary" it wasn't so egregious as to warrant her losing her job--or even receiving a formal reprimand. The 16-page ruling is a whitewash, full of tsk tsk and post hoc rationalizations. And now the matter goes back to the Commission which can adopt it, ignore it, or ask for more.  

Richard probably would have received his lethal injection even if Keller had made sure the brief could be filed. That's not the point. The point is that a judge who holds a life-or-death decision in her hands isn't supposed to blow if off with a snarky remark and a half-day. The repairman waiting for Judge Keller might have been asked to return on a day when his "customer" didn't have a pending execution to rule upon--a day when the United States Supreme Court had not agreed to accept a lethal injection protocol case directly on point with some of the arguments the condemned man's lawyers might have wanted to make. Judges hold jurors in contempt when they act this way. Instead, Berchelmann blamed the matter largely on defense attorneys. Nice. 

Keller's case--and so far the judicial system's reaction to it in Texas--sadly represents a predictable devolution in capital punishment cases there. State prosecutors for so long have dehumanized capital defendants, state court judges for so long have limited or ignored their rights, state juries for so long have rubber-stamped their convictions, that Keller's reaction that day was inevitable. She did not act like a judge. She acted like a lying, cheating scoundrel. And this week Texas told her everything was all right.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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