The Special Master's report on the Sharon Keller judicial conduct investigation was evidently released today. Unsuprisingly, the media accounts of the events leading to the execution of Michael Richard appear to have been totally off base and influenced by the public comments of Texas Defender Service officials, especially David Dow. Keller appears to have been unfairly villified. Remember the infamous TDS "computer crash" that supposedly lead to the need to keep the clerk's office late? Evidently there was no such crash. As an aside, this report casts the competency of TDS lawyers in a very bad light.

http://www.scjc.state.tx.us/pdf/skeller/MastersFindings.pdf

And now the State Bar will, of course, take swift action against the lawyers of the defender service for their conduct?

Frankly, the entire thing (both sides) is an embarrassment.

I'm glad to see Keller vindicated, but I'm not expecting to see very extensive covereage in the press. "Judge did good" doesn't usually get the headlines.

But the problem is that it doesn't say she "did good". It just said she didn't do "really bad". As a believer in capital punishment (yep, even when I was a public defender--just was against it when it was my client), I hate anything that smacks of injustice in the system.

The reason you won't see it in the press is because it says "Anti-death penalty lawyers and media did bad".

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The reason you won't see it in the press is because it says "Anti-death penalty lawyers and media did bad".

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+1

True. It was rather scathing about Keller being tried in the media. I liked that it said she was convicted (in the media) based on exaggerations of inaccurate statements by TDS.

Why is it injustice for the judge to not think of explaining to her general counsel to explain to the paralegal to explain to the highly paid expert in death penalty that he could still file the doc through one of the judges--as the law very clearly points out?

Then is she giving legal advice? I never tell defense attorneys how to file things, or that if they put a certain argument in their suppression motion, I wouldn't be able to refute it. That's what their law degrees are for (and I'm sure these attorneys have plenty of extra additions to their initials that add zeros to their fees). And what if none of the judges took it, and he wasted precious time on a wild goose chase that she sent him on when he could have been doing something else that would help his client? Purposefully misleading him??

Is it the judge's job to tell the attorneys what they are supposed to know? So, to be fair and avoid injustice, judges should tell attorneys what objections to make that would be sustained if they make the wrong ones and are overruled?

I did think it sounded harsh to not allow a late filing with a computer crash and a life at stake and laws under review at SCOTUS, but I still thought that leaving the clerk's office open on this one meant anytime a deadline on an important case is due, the clerk's office should stay open would the be the next step. Even though I thought it was harsh, I agreed--otherwise, what are the rules of procedure for?

Now that the crash was bogus and the true circumstances are clear, I think the judge is owed a humungous apology. And I don't think it's her job to pass messages along through multiple parties to tell attorneys what they are supposed to know how to do.

In fact, if a judge did that in a court where I worked, I would think it was particularly unfair and ex parte advice, on a particular, current case, would be unethical. (but I realize the Special Master who wrote the opinion disagrees).

What I mean is, saying "Tell them to call Judge Johnson" wouldn't be a big deal, and maybe even saying, "Read the statute" wouldn't even be a big deal. But definitely not her duty, IMHO, and wouldn't be appreciated across the board, as I can picture my judge telling a defense attorney, "If you want that hearsay to come in, look at exception 803(23)."

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exaggerations of inaccurate statements

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Sounds like the way a lot of plea negotiations start.

Houston Chronicle headline:

Judge blames defense for executed inmate's botched appeal

Details.

From San Antonio newspaper:

Berchelmann 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."

Details.

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Originally posted by AndreaW:
True. It was rather scathing about Keller being tried in the media. I liked that it said she was convicted (in the media) based on exaggerations of inaccurate statements by TDS.

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+1

From Fort Worth newspaper headline:

Chief justice cleared in case involving inmate's last-minute appeal

Details.

It is hard to fault the newspapers for spreading the story concocted by Dow. But, it certainly does not seem right that "the [Commission] Examiner's charges largely rest[ed] on what ended up being misleading media reports."

There is also no mention in Berchelmann's report of the complaints and opinions added by all of the out-of-state law professors. Guess they did not count for much.

"I find that I am in total agreement with everything that the special master has said in his findings of fact," says Lillian Hardwick, co-author of "Handbook of Texas Lawyer and Judicial Ethics."

Details.

Also:

Hardwick, who sat through Keller's August 2009 hearing, writes in her e-mail that the information underlying Berchelmann's findings seemed to have come out before the hearing, causing her to conclude that the judicial conduct commission should have dismissed the formal proceedings once the information emerged.

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Hardwick, who sat through Keller's August 2009 hearing, writes in her e-mail that the information underlying Berchelmann's findings seemed to have come out before the hearing, causing her to conclude that the judicial conduct commission should have dismissed the formal proceedings once the information emerged.

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You know what, though? If the proceedings had been dismissed at that time, even if the new information was reported (which, of course, you know it wouldn't necessarily be), it would have been "suspect" and certainly more anti-DP media fodder. I personally think it best that the hearings occurred and that there was a formal process by which the information came out. It's much less questionable that way.

Not surprisingly, the many media reports John Bradley mentions refer to Judge Berchelmann's findings about the Texas Defender Service's delay in beginning work on a challenge to Texas' lethal injection procedure, failure to explore other avenues for filing their pleadings after hours, and reliance on paralegals rather than experienced attorneys, but never mention the finding that there was no evidence to support the widely-reported claim that the Texas Defender Service had experienced computer problems on the afternoon in question. After all, one can hardly expect the media to accept responsibility for its role in accepting this claim without investigating its accuracy; blowing it out of proportion; and utilizing it as a major part of the effort to try this case in the media and create, ion Judge Berchelmann's words, a "public groundswell of opposition against Judge Keller."

I'm glad cooler, reasonable heads have come to a just conclusion. Judge Keller is a credit to the bench.

All of this junk got blown out of proportion. I'm glad the report points out what these darn appellate defense attorneys were doing.

Let's be fair and understand that Keller was not completely vindicated and found blameless.

The report says that her decision not to keep the clerk's office open past 5:00 p.m. was "questionable" and that "many in the legal community are not proud of Judge Keller's actions". The report went on to say that her conduct was not exemplary of a public servant and that she should have been more open and helpful. The author of the report even added that he doubted her veracity when she testified that she would do the same thing if the situation were to repeat itself.