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But the consequences of Keller's actions are relatively easy for anyone to understand: Closing the clerk's office created a procedural roadblock for the defense that it could not overcome. Had Keller simply kept the clerk's office open an additional 10 or so minutes to receive Richard's pleading, even if the Court of Criminal Appeals rejected it, the Supreme Court likely would have blocked his execution. How does one know that? Two days later, the Supreme Court stayed the execution of Texas inmate Carlton Turner after his lawyers raised the question first broached in the Kentucky lethal-injection case. It was nearly the same claim Richard made, only Turner was able to convince the Supreme Court justices that he exhausted his state options.
"Her behavior wasn't just outrageous to the average layperson; it is so outside the realm of judicial reasonableness," defense lawyer Levin says of Keller. "In 10 minutes, she made a unilateral decision to deny this man relief that he was completely entitled to, based on her own attitudes and moods."
In 1994, Sam Bayless, a San Antonio lawyer and graduate of Highland Park High School, attended a judicial forum at a hotel in Houston. Bayless was running for a seat on the Texas Court of Criminal Appeals and just slipped into a runoff in the Republican primary against Keller, a well-regarded Dallas County prosecutor who worked in the district attorney's appellate division.
When the 41-year-old Keller introduced herself, she told the audience she would be a "prosecution-oriented judge." That may seem like a throwaway campaign line, but to a stickler for judicial conduct like Bayless, it was inexcusable.
"I got to thinking that I guess people don't care much about the criminal courts, because what would happen if a judge ran for a family court seat on the platform that 'I am husband-oriented or wife-oriented,'" Bayless says. "They would be hung out to dry in the press, but here it seemed to pass without notice."
Keller would go on to beat Bayless in the runoff and take on Democrat Betty Marshall in the general election. This time Keller smoothed out her position and went from promising to be a "prosecution-oriented" judge to simply a "pro-prosecution" judge.
"I guess what pro-prosecution means is seeing legal issues from the perspective of the state instead of the perspective of the defense," she told The Dallas Morning News.
Of course, Keller simply could have promised to see things from the perspective of both the prosecution and the defense, but a pledge of objectivity doesn't help you in a judicial race. Instead, Keller stuck to uttering platitudes. Sure enough, Keller easily won election to the state's highest criminal court.
Since taking the bench, Keller has clearly kept her campaign promise of being a pro-prosecution judge, often earning derision from defense attorneys if not her own colleagues. In 1996, she concluded that a defendant received a fair trial even after evidence surfaced that the man had been tortured into giving a confession. Both the prosecutor and the judge in the case called for a new trial, but Keller disagreed, concluding that although the inmate's rights were violated, it didn't affect the outcome of the trial. In 2003, Keller voted with the majority to permit the execution of a condemned inmate whose lawyer suffered from bipolar disorder and had his law license suspended three times.
But those opinions simply fell under the wide ideological umbrella of conservative jurisprudence—at least as it's defined in Texas—and they didn't make Keller a legal laughingstock. It was only when she discounted new DNA evidence that seemed to exonerate a convicted rapist that the mold was cast: It seemed that Keller wasn't just a conservative judge; she was, many thought, a terrible one.
In 1986, Roy Criner was arrested for the capital murder of a 16-year-old girl named Deanna Ogg, who had been found dead on a logging trail in Montgomery County, just north of Houston. Prosecutors later dropped the murder charge against Criner after a lack of evidence tying him to her death, but charged him instead with sexual assault after he allegedly boasted to friends that he forced Ogg to perform oral sex. Prosecutors didn't have an airtight case, and it took them nearly four years to bring Criner to trial. When they did, they had one main piece of evidence: A blood test that showed that the semen found in the victim could have come from Criner, although the state of DNA testing at the time couldn't provide a complete match.
"Is there any scientific evidence that in any way supports the state's contention?" a prosecuting attorney asked the jury, according to a Houston Press account of the trial. "Yes, there is."
Seven years later, new, more advanced DNA testing proved the prosecutor wrong. DNA taken from the semen found in Ogg did not match Criner. The prosecutors got the wrong guy. In 1998, a state judge ordered a new trial for Criner.
But Keller and a majority of judges on the Court of Criminal Appeals rejected calls for a new trial. Keller theorized that Criner might have been wearing a condom. Or maybe he simply failed to ejaculate. Never mind that the defendant was convicted on the basis that the semen found in the victim's body was his; Keller spun an entirely different story about how Criner raped his victim, an explanation that differed from the story that convinced a jury he was guilty.
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