By Stephen Young
By Stephen Young
By Stephen Young
By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
Take her off the bench and Sharon Keller is funny, smart and personable, if a little shy. People genuinely like her. One of the most powerful judges in Texas plays gin every week with a group of Austin friends and enjoys sharing drinks with lawyers who've just tried to persuade her of the finer points of their cases.
A former Dallas County prosecutor whose family started a string of popular hamburger joints, Keller is the presiding judge of the Texas Court of Criminal Appeals, and right now the same lawyers who are quick to share an endearing anecdote about the judge will also tell you that she's not fit to serve on the bench. Keller has skated from one controversy to the next, but today she finds herself the most vilified judge in Texas, if not the entire country.
On September 25, Keller refused to keep her clerk's office open an extra 20 minutes to receive a last-gasp pleading from the attorneys for condemned inmate Michael Richard. Richard's lawyers were having computer problems that prevented them from turning in their motion on time. The 49-year-old murderer was executed just hours after Keller locked the door.
Richard's pleading was a complicated procedural move that followed a U.S. Supreme Court decision earlier that morning that raised doubts about the constitutionality of lethal injection. That gave Richard's lawyers an opening to stay their client's execution until the Supreme Court revisited the issue.
But Keller's decision to close her court at 5 p.m.—a move that has since been blasted by even her Republican colleagues—violated the court's unwritten policies for handling executions. It also broke sharply from tradition. In Texas, it's not unusual for judges and clerks to take last-minute pleadings at their homes. On execution day, the courts don't have a strict closing time.
Keller's actions also defied the Supreme Court decision from that day, which has resulted in an unofficial nationwide moratorium on capital punishment. Maybe she didn't make an intentional end run around the highest court in the land, but that was the effect. To be more blunt, the effect was to kill a man months before his execution would have proceeded, assuming the Supreme Court would have allowed it at all. To date, Richard is the last U.S. inmate put to death.
A collection of activists have since decried Keller's actions. Protesters have gathered outside her North Austin mansion carrying clocks set to 5:00. A band called Possumhead, fronted by an Austin lawyer, recorded a grungy song with the blunt refrain "Sharon is a killer, a really lethal killer." Meanwhile, a like-minded blog named Sharonkiller.com, already in operation after some of the judge's past mishaps, includes a series of fake personal entries: "Maybe I should sell and move back to Dallas and help out at Dad's hamburger stand before my house becomes a stop on one of those Duck bus tours of Austin," the fake judge writes. "Tomorrow is Halloween and I'm going as myself, boo."
While the real Keller has made other baffling decisions and public statements over the years, her latest actions have stirred an epic backlash that extends far beyond the protests of anti-death-penalty activists. She's been mocked in Newsweek, scolded by The Dallas Morning News and asked to step down by the Houston Chronicle and Texas Monthly. Powerful, prominent attorneys, including a former head of the State Bar of Texas, have filed official complaints against her and lambasted the judge to anyone with a notebook or microphone.
"It's hard to imagine anything she could have done that could have been worse than this," says Michol O'Connor, a retired appellate judge in Houston. "I think she should be removed. I wouldn't trust any decision she could make after this. This is such a fundamental issue—the right to get a piece of paper in court—how can we trust her on more complicated issues?"
Even lawyers who praise Keller's work ethic and sense of decorum can't believe she expedited an execution after the Supreme Court clearly gave condemned inmates across the country one last chance to appeal.
"Sharon is a friend of mine. I think she's a delightful person off the bench, but from a legal standpoint, the decision to shut the clerk's office at five when even Ray Charles could have seen that there were papers coming in to stay this execution was unconscionable," says Houston defense attorney and Court TV analyst Brian Wice. "From a non-legal standpoint, it was a knuckleheaded move."
It seems like just about no one these days can defend Keller's actions. Not even the daughter of Marguerite Dixon, the woman Michael Richard was convicted of murdering 20 years ago. "It sounded to me like she was just being arbitrary," says Celeste Dixon. "She had a chance to at least hear the arguments, and she chose to take her powers as a judge and make a decision without any thought."
Lost in the demonstrations against Judge Keller is the fact that the man whose death she hastened was guilty as sin. Her actions spun from a grisly rape and murder in which there's no doubt who committed the crime.
Marguerite Dixon was a native of West Virginia who missed the changing of the seasons when she moved to Hockley, 40 miles north of Houston. Although she could be a stern disciplinarian, her children never doubted she loved them. They thought of her as a wonderful mother.
On the afternoon of August 18, 1986, Michael Richard, on parole after a burglary conviction, asked Marguerite's son Albert whether the yellow van parked outside their house was for sale. Albert told him the vehicle belonged to his brother and asked Richard to come back another time.
Later that evening, Albert and his sister Paula returned home and quickly knew something was wrong. The sliding glass door was open. All the lights were out. It was too early for their mom to have gone to sleep.
Frightened, the Dixons asked a neighbor to walk in the house with a flashlight and gun. That's when they discovered their mother dead in her bedroom, shot in the head with a .25-caliber automatic pistol.
It didn't take long for police to find their man. The next morning, the detective assigned to the case found a missing yellow van and traced it back to Richard. After obtaining a warrant for his arrest, police found him at his mother's home. Richard confessed to the crime and led police to the murder weapon. In September 1987, a Harris County jury found Richard guilty of capital murder and sentenced him to death.
Richard's execution date would come 20 years later on September 25, 2007. That morning, two of his lawyers, having exhausted all other legal remedies, were hoping to convince the U.S. Supreme Court that their client was mentally retarded and that executing him would be unconstitutional. Their prospects were bleak, but after years of appeals, Richard's attorneys had run out of options.
But early that morning, the Supreme Court agreed to hear Baze v. Rees, a Kentucky case alleging that the use of particular chemicals in a lethal injection should be banned as cruel and unusual punishment because of the pain and suffering they might induce in condemned inmates. The Supreme Court didn't rule one way or another; it merely indicated that the full court needed to review the constitutionality of lethal injection in the near future.
David Dow, Richard's lead attorney and a professor at the University of Houston Law Center, did not expect the Supreme Court to accept the Kentucky case on the day of his client's execution. He didn't think the increasingly conservative court would review the case at all. So it caught him off guard when he read about it in an e-mail at his office at 10:30 a.m.
Already Dow had lost valuable time. Just because the Supreme Court granted a hearing didn't mean that Richard's execution automatically would be stayed. The law professor had to figure out how a Kentucky case could be raised in a Texas court. He spent an hour or so discussing some of the intricate legal issues with Richard's other attorneys. They figured the Texas Court of Criminal Appeals, the highest criminal court in Texas, wouldn't grant a stay. The court has long been the most conservative in the state. But if Richard's lawyers were going to ask the Supreme Court for relief, they had to show that they had exhausted all their options at the state level. So the rush was on to write their motion.
As Richard's attorneys were scrambling on behalf of their client, Marguerite Dixon's children learned that their mother's killer may have one last chance. Paula Dixon, who was 20 at the time of the murder, had been counting down the days to the execution. It wasn't that she wanted Richard to be put to death, but as his execution date approached, she started to keep track of what she thought were his last days.
"Enough already," Dixon remembers thinking when she heard that Richard's execution date might not be final. "Either do it or don't, but quit stringing us along."
At 4 p.m., Richard's lawyers finished writing their pleadings, according to a detailed account of that day's events in Texas Lawyer magazine. Dow tried to e-mail the document to another lawyer so she could add a few attachments. That's when he realized he had lost Internet access.
A paralegal working on the Richard case called a clerk at the Court of Criminal Appeals and asked for more time. The lawyers didn't think this would be much of an issue. "There were any number of times when the court was open late or a judge has received pleadings late," says Maurie Levin, one of Richard's attorneys.
But this time the clerk told Richard's paralegal the court closed at 5 p.m. At 5:10, with his computer problems resolved, Dow finished his pleading. He says he figured the court would take it. The paralegal called the clerk a second time and was told that the court wouldn't accept their filing. As it turns out, Keller instructed the clerk that the court was closed, according to her own account in the Austin American-Statesman. (Keller did not return repeated calls from the Dallas Observer to her office and home.)
"I got a phone call shortly before five and was told the defendant had asked us to stay open," Keller told the Statesman. I asked why, and no reason was given. And I know that that is not what other people have said, but that's the truth. They did not tell us they had computer failure. And given the late request, and with no reason given, I just said, 'We close at five.' I didn't really think of it as a decision so much as a statement."
Keller's explanation to the Statesman is disingenuous at best. Richard's pleadings weren't about a misdemeanor DWI. They were an attempt to stay an execution. She knew that. She also knew that the Supreme Court decision earlier in the morning opened up an avenue for Richard to stay his execution.
The judge also knew her own court's policies at the time. They stated that all communication about an imminent execution should go to the judge assigned to handle last-minute motions on the case. With Richard, that would have been Judge Cheryl Johnson. But Johnson, a Republican jurist whom no one will accuse of being sympathetic to defense lawyers, told the Statesman that Keller never asked her if she would have reviewed Richard's pleadings, even though she was ready to work late that evening.
"I was angry. If I'm in charge of an execution, I ought to have known about those things, and I ought to have been asked whether I was willing to stay late and accept those filings," Johnson told the paper.
Asked if she would have accepted Richard's brief, she replied, "Sure. I mean, this is a death case."
People who've worked at the Court of Criminal Appeals will tell you that on the day of an execution, it's not business as usual. Judges and clerks are ready for just about everything.
"People turned out the lights and went home on normal days, but on days when it was apparent that a last-minute pleading was coming in on an execution, there was no formal closing time," says Richard Wetzel, who worked as general counsel for the court from 1987 to 2003. "The door might be locked, but court staff and judges were available to process last-minute requests."
In fact, the culture of capital punishment is rife with drama until the moment an inmate is declared dead. A little more than 10 years ago, executions in Texas were held between midnight and sunrise. Wetzel remembers pleadings coming in almost at dawn, when it wasn't entirely clear whether lawyers had beaten the clock.
"I remember when officials at the penitentiary would pull out the almanac and determine the official time of sunrise," Wetzel says.
After they realized they weren't going to be able to file their pleadings with the Court of Criminal Appeals, Richard's lawyers hurried to explore all other ways they could save their client. They asked the governor's office for a stay of execution and were rejected. They also filed one last appeal before the Supreme Court. At 7:30 p.m., the Supreme Court denied Richard's appeal. By 8:23 p.m., he was dead.
Harris County Prosecutor Lynn Hardaway, who handled the state's litigation on the Richard case, says that Dow, Richard's lead lawyer, can't complain about how the Court of Criminal Appeals handled the case. Ultimately, it was the Supreme Court that denied his client a stay of execution.
"He was able to present his motion for a stay of execution with the United States Supreme Court, and he was denied," Hardaway says. "It wasn't like no one heard his request."
But Dow says that in his appeal before the Supreme Court, the Texas Attorney General's Office seized on the fact that he did not file anything that day with the Court of Criminal Appeals. The attorney general argued that the Supreme Court had no jurisdiction to hear Richard's appeal because nothing had been filed in or ruled on by the state's highest criminal court.
Keller's friends can't come up with an explanation for why she closed the clerk's office when she did, but they do try to shift some of the blame to the defense lawyers. Dan Hagood, a Dallas defense attorney who served as Keller's campaign treasurer when she first ran for the bench in 1994, says that Dow could have filed a short, handwritten motion to stay Richard's execution. It never had to come down to a last-minute filing. Hagood adds that even if the clerk's office was closed, Dow could have simply turned his motion over to any of the nine appellate justices on the court, including Keller herself.
"I feel like this is a case where the facts are being bent to blame a judge instead of a lawyer," Hagood says.
But Dow, who has worked on 75 capital cases, says that such criticism reflects a lack of understanding of how the court works.
"I could have presented a short one-page, which would have killed a tree unnecessarily," Dow says. "These are never granted, not once in the history of Texas death-penalty law."
Within a year or two, law students across the country will be studying the legal drama that played out over the last day of Richard's life. Maybe some professors will conclude that Richard's lawyers, though scrambling to meet a very literal deadline, could have pursued other measures with the appellate court once Keller shut the clerk's office down. It could be a good, intricate lesson on the chaotic nature of Death Row appeals.
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.
"You wanted to laugh and cry at the same time," says Michael Charlton, Criner's attorney, about Keller's reasoning. "It made no sense, and you felt like everything you understood about your own profession was turned upside down."
So Criner, characterized by his attorney as nearly retarded, remained in prison, wondering if he'd languish behind bars his entire life. His mother, Jackie, tried as best she could to understand from her son's lawyers why he couldn't so much as get a new trial, but often she'd simply leave the room and weep. Her son's lawyers had evidence that refuted the prosecution's main argument against her son, and they couldn't receive a new trial.
But the simple logger's saga prompted a nationwide outcry. Syndicated columnist Clarence Page called on George W. Bush, then governor of Texas, to pardon Criner.
The PBS program Frontline also covered the case and landed a memorable interview with Keller. On national television, the judge referred to the 16-year-old victim as a "promiscuous girl," allowing for the possibility that someone else's semen could have been inside her other than the rapist's. To Keller, the DNA test simply didn't mean a thing.
"The evidence didn't show that he did not have sex with this woman," she told Frontline. "It can't. Just like the absence of fingerprints right here doesn't show that I didn't touch that chair. It can't show that he didn't do that."
Later in the program, Frontline asked Keller, "How do you prove you're innocent?"
"I don't know. I don't know," she replied.
Following Keller's appearance on Frontline, Charlton made 50 copies of the judge's interview and mailed it to the main papers in the state. At the time, Keller was running to become the presiding judge of the court against fellow Judge Tom Price, who accused her of turning the Court of Criminal Appeals into a national joke after the Frontline interview. Keller would go on to defeat Price, but Charlton kept his client in the news, which he realized was his best bet for setting him free.
"The slogan we adopted at the time was, If you have an innocence case, lawyers can't help you, " Charlton says. "Only journalists can."
Of course, it doesn't hurt to have Barry Scheck on your side either. The former O.J. Simpson lawyer, who has spent a good part of his career exposing wrongful convictions, joined the Criner defense team shortly after the first DNA test seemed to exonerate him. Scheck asked for an inventory of everything that was found at the original crime scene, including a cigarette butt left near the victim. When the DNA from the cigarette did not match Criner's, and a new round of publicity about his case ensued, Bush pardoned him.
Many attorneys talk about landmark cases they won like old men reliving the night they led their high school team to the conference title. They become excited and giddy, choreographing each scene of their legal triumph as though they've reveled in it every day since. But when Charlton reflects on Criner's case, he turns disconsolate and detached. He may have helped free an innocent man from a 99-year prison sentence, but there is no trace of glee in his voice, only a sense of frustration that probably hasn't ebbed in seven years.
"It's not an exaggeration to say that I had a crisis of faith in the legal system and it's one I never got over," Charlton says. "I have no faith in the legal system. I'm very, very cynical about the legal system even though I make a good living in it. As far as I'm concerned, I might as well be a highly paid plumber."
To some of Keller's detractors, the judge honed a one-sided and arbitrary disposition during her six-year stint as a prosecutor at the Dallas County District Attorney's Office. There was a time when the office that former chief prosecutor Henry Wade built was considered a training ground for bright young lawyers, some of whom would go on to become highly paid defense attorneys and well-respected judges. But over the last year, the legacy of Wade and his office has been badly tarnished as Dallas County has been forced to release more than a dozen innocent prisoners, nearly all of whom were wrongfully convicted during his tenure
Critics of Wade and his like-minded successors—among them John Vance, who hired Keller—say that for more than a generation, the District Attorney's Office has been overly aggressive, if not flat-out reckless in performing its duties. The ethical obligation that prosecutors have to seek justice was a mere academic notion—what mattered most was dispatching shackled defendants to jail, even if it took shaky eyewitness accounts to gain a conviction. Keller's growing legion of naysayers see her as a judge who never seems to consider that prosecutors sometimes badly err—as they did with Roy Criner—and they blame that on Keller's old employer.
"Certainly the culture of the Dallas County District Attorney's Office shaped her, formed her and gave her to us," says Jim Harrington, director of the Texas Civil Rights Project. "The Richard case really reflects her attitude that she's not really a jurist; she's more interested in moving people on to convictions and to the death penalty."
Hagood, who knew Keller when she was "the star of the appellate section," eagerly defends his longtime friend. "She's an outstanding attorney in every respect: very bright, conscientious, ethical and focused."
But Craig Watkins, the Dallas County district attorney who has worked to remedy the mistakes of his predecessors, says that even if Keller was a good lawyer, she learned some bad lessons along the way. The shadow of Wade hung over the District Attorney's Office for years, maintaining a warped legal culture, he says.
"The DAs after Henry Wade were prodigies of Henry Wade, and I don't want to disparage him, but let's be honest, there were some things that were done to defendants that were unfair," Watkins says. "This office is a training ground to prepare lawyers, and obviously you take on the mentality of this office. I think most lawyers, after they've left for private practice, understand the past failures of this office and are honest with it."
Even if Michael Richard's lawyers were able to stay his execution, he likely would have been put to death eventually. The Supreme Court may rule soon that the drug cocktails used in a lethal injection, in fact, do not constitute cruel and unusual punishment. Then executions in Texas and across the country would resume. Even if the court has problems with the standard lethal-injection protocol, states could refine it to overcome those concerns.
So it's not likely that Richard could have avoided his date with death for another two decades. Criner, though, was an innocent man, and Keller helped keep him in prison for two additional years after DNA tests cleared him of the crime. Then she offered a clumsy, embarrassing rationale of her decision on national television.
Yet the pure simplicity of how Keller turned off the clock before a Death Row inmate could file an 11th-hour appeal has made her a pariah among lawyers. Whether her conduct here was worse than before, or whether it hit the tipping point, Keller really did it this time. She'll probably keep her seat, but her reputation is beyond repair.
More than 300 lawyers have signed on to official complaints about her actions to both the State Bar of Texas and the state Commission on Judicial Conduct. Many of them represent the very heart of a legal establishment not known for picking fights with high-ranking judges.
"I signed the petition because it was very unsettling to me as a lawyer that any criminal defendant's life, however unworthy it may be, could be dealt with in such a cavalier manner," says Broadus Spivey, a former state Bar president who specializes in legal malpractice. "To a person, everyone with whom I have discussed this situation agrees with me that it should have never happened. I have never seen such a unanimous response from the legal profession."
Dick DeGuerin, the celebrated defense attorney who has represented a spate of high-profile clients ranging from Tom DeLay to the late David Koresh, also signed the petition against Keller.
"She has done some outrageous things, but this was the last straw," he says. "It was so clearly a life-and-death situation."
But the problem is that this probably won't be the last straw. Even in a state that has locked up more than its share of guiltless defendants, judges rarely receive any kind of severe sanction. Most lawyers expect Keller to receive a mere slap on the wrist, if that.
Brian Wice, for one, says that no matter what sitting judges do, they almost never have to worry about being kicked off the bench.
"When you look at the conduct that will get you sanctioned from the judicial commission, it's like getting kicked out of a Guns N' Roses concert," he says, "I think she will survive."