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Judge should not be fired for closing court before death row appeal, report recommends

Sharon Keller, who refused to keep the court open past 5 p.m., said she would not change a thing she did. Sharon Keller, who refused to keep the court open past 5 p.m., said she would not change a thing she did.
Associated Press / January 21, 2010

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SAN ANTONIO - An embattled Texas judge who closed her court before a death-row inmate could file his final appeal should not lose her job or receive any further punishment beyond the public humiliation she has faced, a judge presiding over her ethics trial said in a report released yesterday.

Judge Sharon Keller still faces five judicial misconduct charges for refusing to keep her court open past 5 p.m., and the state commission that will ultimately decide Keller’s fate is not bound by the recommendations in yesterday’s report. But the report makes it clear that Keller is not to blame for a twice-convicted killer being executed Sept. 25, 2007.

“Although Judge Keller’s conduct on that day was not exemplary, she did not engage in conduct so egregious that she should be removed from office,’’ wrote state District Judge David Berchelmann, who oversaw Keller’s ethics trial.

Berchelmann recommended that Keller was also undeserving of “further reprimand beyond the public humiliation she has surely suffered.’’

Mocked as “Sharon Killer’’ by her detractors, Keller has remained the presiding judge of the Texas Court of Criminal Appeals since the uproar began after Michael Wayne Richard was executed. At the heart of the charges against her is whether she denied Richard the ability to file a late appeal in the hours before his execution.

Keller received a phone call at 4:45 p.m. the day of Richard’s execution from a court staff member asking whether the court would stay open past its normal closing time for Richard’s lawyers, who were running late with an appeal. Twice during the conversation Keller said no.

A hearing by the State Commission on Judicial Conduct - which can still vote to remove Keller from office, reprimand her, or dismiss the charges entirely - has not been set.

But Keller’s attorney, Chip Babcock, said the judge was “gratified’’ for Berchelmann’s report.

Babcock said he cannot imagine how the commission could vote to remove Keller given how thoroughly the report says Keller did no wrong. He said he expects all charges to be dismissed.

“It’s a 100 percent complete validation of her,’’ Babcock said.

In his 16-page report, Berchelmann stopped short of excusing Keller for closing her court, calling the decision “highly questionable.’’ He said Keller should have been more helpful to Richard’s attorneys about how they could have filed an appeal.

Keller said during the trial that she would not change her actions if she could do it all over again.