Fight Over Whether Board Can Sanction Judge Continues

Sharon Keller at the 2010 Texas Republican Convention.
Sharon Keller at the 2010 Texas Republican Convention.

The State Commission on Judicial Conduct isn't giving up on its attempt to reprimand Sharon Keller — in an unexpected move today, it appealed a court's dismissal of its sanction against Keller, the presiding judge of the Court of Criminal Appeals.

In the motion, the state board asks a special court of review to rehear its arguments against Keller, challenging the court's ruling that it could not issue a "public warning" against the judge (the motion can be downloaded above). The commission issued its public warning after Keller had already been tried by San Antonio Judge David Berchelmann, who recommended no action against her. The court of review said Berchelmann's ruling prevented the state board from issuing the sanction it did. That's what today's motion is about: The commission says that if the court of review found procedural mistakes, it should have sent the case back for repairs instead of throwing out the complaint against Keller completely. That would allow the board to punish Keller with anything from a slap on the wrist to removal from the court.

Keller's lawyer, Chip Babcock, said the motion surprised him and that it "borders on harassment." He disputed the board's contention that the court "not only can, but must" send the case back so it could impose a greater sanction.

Here's more on the special court of review's original opinion from a previous blog post:

The commission censured Keller after she refused to keep her courtroom open past 5 p.m. for a last-minute death row appeal in 2007. The procedural tangle in the court of review's 33-page opinion (download it above) wraps around what is essentially the concept of double jeopardy. When the state board decided to investigate Keller, it could have initiated "formal" or "informal" proceedings. It opted to go the "formal" route by asking the Supreme Court to appoint a "special master" to hear the evidence against Keller. In January, that special master, Judge David Berchelmann, found that Keller had committed no wrongdoing and deserved no other punishment than the "public humiliation" she had already endured. At that point, according to the opinion, the commission, if it wanted to pursue the case, had a choice of either issuing a public censure or recommending her removal from office. Instead, it issued June's "public warning" — a lesser punishment than a "public censure," and essentially a slap on the wrist. That's an option that only available to the commission under informal proceedings, according to the court of review's opinion.

This all matters because Keller's method of appeal differs depending on whether she faced formal or informal proceedings. In the case of a public sanction, her next stop would usually be requesting a formal evidentiary hearing — but in this case, that has already happened. The three-judge review court struggled with this during oral arguments for Keller's appeal of the sanction on Oct. 20. Judge Elsa Alcala of Houston's First Court of Appeals said a second, separate trial of Keller would be an "absurd consequence," adding later that "it doesn't sound fair, and it doesn't feel fair." Second Court of Appeals Judge Terri Livingston and Ninth Court of Appeals Judge Charles Kreger also sat on the panel, which was appointed by the Texas Supreme Court.

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