Judicial Elections, Misconduct, and the Death Penalty: The Case of Sharon Keller

BOULDER, Colorado -- Judges have been under increased scrutiny lately, but none more so than Sharon Keller (pictured left), the presiding judge of the Texas Court of Criminal Appeals. Her alleged misconduct highlights several problems of our judicial system - or more precisely, that in Texas - namely the election of judges, the immense discretion they are afforded, and the rush to execute prisoners.

On February 19, the State Commissioner on Judicial Conduct charged Judge Keller with five counts of misconduct related to her decision to deny the filing of a motion in the case of Michael Richard. Mr. Richard was to be executed on September 25, 2007, and that day his attorneys attempted to file a last minute appeal with the court in Austin to stay the execution. Unfortunately, they ran into computer problems, and their filing was delayed past the court's usual 5 p.m. closing time; when they requested that the court office remain open just a few more minutes, Judge Keller denied the request, stating simply, "We close at five." Mr. Richard was executed a few hours later.

It should be noted that Michael Richard (pictured right) was by no means an innocent man. He brutally raped and murdered Marguerite Dixon in 1986, a crime to which he confessed. Mr. Richard's mental capacity was severely limited, but this was not the basis for the last-minute defense filing. Rather, the day the execution was to take place, the US Supreme Court had announced that they would hear a case regarding the constitutionality of lethal injection, the method to be used on Mr. Richard. Ultimately, the Court rejected the argument that lethal injection violated the eighth amendment by a 7-2 decision in the Baze v. Rees case.

Perhaps under Texas law, Mr. Richard should have been executed, but now we will never know, because he was never afforded the full scope of due process. As the New York Times reported on Sunday, Judge Keller is well known for her strong bias towards the prosecution. In fact, she has run for office on a "pro-prosecution" platform and has routinely demonstrated a desire to reaffirm these credentials rather than dispense actual justice.

Like in the case of Roy Wayne Criner, convicted of rape and murder in 1990. Except Mr. Criner didn't do it. DNA evidence clearly proved his innocence, yet Judge Keller rejected his request for a new trial in 1998. Her theory of the crime - one never presented by the prosecution or defense, but one she picked out of the ether - was that the victim, Deanna Ogg, had consensual sex with the person who's semen was found at the crime scene, then Mr. Criner raped her, but he used a condom or failed to ejaculate. In the end, the Texas Board of Pardons and Paroles ruled unanimously to free Mr. Criner, and that tireless defender of defendants' rights, Gov. George W. Bush, signed his pardon in 2000. To this day, Judge Keller does not have an ounce of regret about her decision to deny an innocent man a new trial.

As Itchy highlighted in an earlier post, the election of judges is a pernicious and corrupting process. Judicial elections have now become multi-million dollar affairs, replete with television attack ads, push polls, and negative mailers. In 2008, more than $3.8 million was spent on a single race for a state supreme court seat in Alabama. Republican Greg Shaw won the seat, but only after voters were subjected to nonsense like this and this over the airwaves. Some states, like Minnesota, are trying to do something about this problem (for a run-down on the spending on judges races in 2008, see here).

Judges hold immense discretion in any criminal proceeding, but in death penalty cases, the failure to exercise it impartially and judiciously can mean the difference between life and death for a defendant. If justice is to be fair and impartial, then there should not be wild swings in decision making in criminal cases based on who is on the bench; sadly, that is not the case. Anthony Amsterdam, a criminal defense attorney and law professor at NYU most famous for winning the landmark case Furman v. Georgia before the Supreme Court, which struck down all death penalty statutes in the country, last year said this about the California Supreme Court:

State judges are elected in all but a half dozen of the thirty-seven [now thirty-six since New Jersey banned capital punishment] states that have the death penalty. When California voters recalled their state Supreme Court Chief Justice Rose Bird and two of her colleagues because of their supposed softness on capital appeals, the California Supreme Court flipped over instantaneously from a 95% reversal rate to a 97% affirmance rate in death cases.

There is something wrong with this picture. I am not arguing about the morality or the legality of the death penalty, but there is little compelling need to rush to execute anyone. Access to due process should never be denied on purely procedural grounds, as was done in the Texas case, and states should proceed slowly and deliberately when they seek the death of a defendant. There are no avenues for appeal once a capital sentence has been carried out. In addition to being subjected to judicial indiscretion, Texas defendants are also afforded access to the worst public defenders in the country, and they are thrown into a system designed to execute them as quickly as possible. Texas carried out 18 of the 37 executions conducted nationwide in 2008, and 423 of 1,153 since 1977. While the average inmate on Texas' death row will spend 123 months before being executed, the national average is 153 months, or 25% longer. 373 people currently sit on its death row, trailing only California and Florida.

Judge Keller should be thrown off the bench, and all Texans should be ashamed of their justice system that is neither fair nor equitable and is stacked against defendants, especially those who happen to be poor and non-white. I can go on about the system's inequities, but I will leave it at that. But Rick Casey of the Houston Chronicle disagrees, calling the whole investigation of the judge a "Rube Goldberg system." "We do, after all, account for about half the nation’s executions. If Court of Criminal Appeals Chief Judge Sharon Keller ran a campaign ad bragging on her action, it would win her more than a few votes," he opined back on February 21.

I guess that's Texas justice for you - killing for votes.

[If you would like to help impeach Judge Keller, go here. For more information on the death penalty in Texas and elsewhere, check out the Death Penalty Information Center. Strangely, the photo of her is taken from the Texas State Cemetery website - I guess she already has her eternal resting place reserved in Austin. Executed inmates in Texas are buried at Captain Joe Byrd Cemetery in Huntsville.]