Dissed robes

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"I don't care if Judge Price announces his decisions from a trailer park outside of Boerne; he is someone who understands the concept of fairness in the context of criminal appeals," defense attorney Wice says. "I don't think Judge Keller understands both sides. She views cases only in terms of victims."

Keller expects her reputation as a prosecution-friendly judge to be debated during her campaign, and she's ready. She reels off a list of cases in which she has ruled in favor of the defense. She also has conducted her own research and found that in September and October, 21.8 percent of the court's rulings sided with the defense, more than double the 10 percent that is considered par.

"This chant that the court is agenda-driven for the state -- the facts don't match it," she says. "We rule on each case individually, and we don't decide ahead of time who is going to win."

Keller also is likely to face campaign questions about her corporation leasing property to a particularly skanky Dallas topless bar called the Doll's House on Northwest Highway. (See this week's news story "Judge shake-it-baby," page 9.)

Keller says she owns a lot of real estate and cannot say for certain whether she was ever aware of the tenant. She shakes off the irony that a corporation owned by one of the court's most rigid judges leased property to one of Dallas' seamiest titty bars.

"I don't think it's necessarily incongruous for a judge to own property that legal business is conducted on," Keller says. "I think someone is trying to make me look bad over something that shouldn't make me look bad."

Convicted killer James Howard McJunkins agreed under a plea bargain to have his murder and aggravated robbery sentences "stacked" to run consecutively. He struck the deal even though it was his statutory right to serve them concurrently since they were part of the same crime spree.

McJunkins later petitioned the court for concurrent prison terms. Rather than risk having both sentences thrown out and the case retried, prosecutors gave in.

But that wasn't good enough for Judge Paul Womack. In an opinion for a majority of the court, he wrote that a defendant legally could waive his statutory right to have sentences run concurrently, even though the state never specifically asked the court to rule on that question: Even when the prosecution doesn't ask for a favor from the Court of Criminal Appeals, judges go out of their way to give one.

Three judges opposed Womack's 1997 ruling -- Meyers, Charles Baird, and Morris Overstreet, who did not run for re-election to the court in 1998.

"In concocting an issue out of thin air which the State does not even raise...the majority's opinion is an inappropriate exhibition of judicial activism," Overstreet wrote. He and Womack declined requests to be interviewed for this story.

Baird took Overstreet's dissent a step further, adding: "The majority shall not be seen as impartial jurists but for what they are, partisan advocates advancing an agenda of reaching results which ultimately benefit the state."

Baird says the McJunkins ruling is another example of the current court bending over backward to help the prosecution. The court's attitude, he says, has trickled down to trial judges and prosecutors, who have an attitude of invincibility because they know their errors will not lead to a reversal.

It has gotten so bad, Baird says, that one Harris County trial judge whispered in his ear that he feels like he could fall asleep during a trial and still not be admonished by the court. And there's precedent for something like that.

Earlier this fall, U.S. District Judge David Hittner of Houston ruled that Calvin Jerold Burdine, who has been on Texas' death row for 15 years, had a right to a new trial because his lawyer had slept through some of his 1984 capital murder trial. In a 6-3 decision, the Court of Criminal Appeals in 1995 denied the man's petition for a new trial without detailing its reasons in writing.

McCormick now says that nowhere did Burdine prove that he was harmed because his lawyer had nodded off. "Did he show, for example, that any evidence was wrongly admitted when the lawyer was asleep? Did he show that he couldn't object to something because the lawyer was asleep?"

McCormick says he isn't even convinced that Burdine's lawyer slept through some of the trial, as the attorney maintained he merely closed his eyes while concentrating. Hittner concluded not only that the lawyer had slept, but that Burdine effectively had been denied his constitutional right to have an attorney represent him at all times during his trial.

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Stuart Eskenazi