Sharon Keller

Sharon Faye Keller (born in Dallas, Texas, 1953) is the Presiding Judge of the Texas Court of Criminal Appeals, which is the highest court for all criminal matters in the State of Texas. Because of her position, she has been involved in many high-profile and controversial cases, and has thus received widespread news coverage.

Birth and early career

Keller graduated from Rice University in 1975. She received her J.D. from Southern Methodist University in 1978. She was elected the first woman judge on the Texas Court of Criminal Appeals in 1994. In 2000, she was elected presiding judge and re-elected in 2006. She is chairman of the Texas Task Force on Indigent Defense. She serves on the Executive Board of the Capitol Area Council of the Boy Scouts of America. Keller is a Republican and has gained a reputation for being hard-line when it comes to justice.

Roy Criner case

Keller was first involved in controversy in 1998.

Origins

In the evening of September 27, 1986, Roy Criner, a logger from New Caney, Texas, told his boss (Pitts) and two friends (Hooker and Ringo) that he had gone to a store in New Caney, picked up a hitchhiker, driven her to Pitts' logging facility, threatened to kill her with a screwdriver, raped her, and thrown her out of the truck. Earlier that evening, ninth grader Deanna Ogg stopped at a store in New Caney to buy cigarettes and told the cashier that "she was going to a party." Approximately fifteen minutes before Criner told Pitts tale version of the evening's events, Ogg's body was found near the logging facility; she had been raped, beaten, and stabbed. The medical examiner concluded that the wounds could have been made with a screwdriver, but could have been caused by other "weapons". Five days later, having interviewed Pitts, Hooker, and Ringo, and having found a screwdriver in Criner's truck (he had consented to it being searched), the police arrested Criner for the murder. The murder charge was dropped for lack of evidence, however, and aggravated sexual assault was substituted as the charge.

When the case came to trial in 1990, prosecutors relied primarily on testimony by Pitts, Hooker, and Ringo about Criner's statements to them. Other evidence—including a cigarette butt found at the scene (Criner didn't smoke, and the brand wasn't Ogg's), and, to the "amaze[ment]" of the appellate court, the screwdriver itself—was not introduced. In sum, the state had 27 pieces of forensic evidence, none of which connected Criner to the crime. Cringer's defense lawyers told the Houston Press and Frontline that they believed the evidence against their client "was so shaky that a jury would never convict" so they put on no defense witnesses and did not adequately cross-examine Pitts, who told Frontline and allegedly the police who ignored him, that there was no way Criner had time to commit the murder. Nevertheless, Criner was convicted and sentenced to 99 years.

On appeal, Criner claimed that the evidence was insufficient to convict him of rape and insufficient to prove that he was responsible for the aggravating element, i.e. the head injury to Ogg. A divided panel of the intermediate appellate court agreed with his second claim and thus did not rule on his first one. A divided Court of Criminal Appeals reversed, and the conviction became final.

The new DNA evidence

In 1997, the semen found in Ogg was subjected to newly-available DNA testing; it was not Criner's. Criner filed a habeas corpus petition for a new trial, advancing two arguments: an "actual innocence" claim based on the new DNA evidence, and a Brady claim. The following year, the district court declined to make factual findings on the actual innocence claim, but recommended Criner receive a new trial on the basis of the Brady claim.

In a 5-3 decision, the Texas Court of Criminal Appeals overturned the district court's recommendation. Judge Keller wrote for the majority, and Judge Baird for the dissenters. The court swiftly dismissed the Brady claim as ill-taken, and focused instead on the "actual innocence" claim." As the majority saw it, the DNA evidence was irrelevant: "Evidence that the victim had sexual relations with someone other than [Criner] simply is not evidence that [he] is innocent." The majority's conclusion was partially based on their belief that Ogg was no shrinking violet. An offense report from the case "reflect[ed] that the deceased had lots of boyfriends and was very sexually active"; at trial, her mother described her as a "wildcat," and testimony was offered that Ogg "had many boyfriends and that she had said that she 'loved sex.'" However, the majority opinion is contradictory. In addressing Judge Baird's dissent, the majority agrees with his contention that no evidence of Ogg's promiscuity, was introduced at the trial: "For some reason, the dissent finds it significant that the State did not put on evidence at the time of trial that the victim had consensual sexual relations with men. Well, of course it didn't put on evidence tending to suggest that the sixteen year old victim was promiscuous; there was no reason at that time to do so." Mike McDougal, the district attorney, denies that his office ever "impugned the reputation of Ogg" and claims not to know where Keller got information about the victim's purported promiscuity. However, the motion he filed in opposing a new trial for Criner, included an affidavit from D.A. investigator John Stephenson that stated he had reviewed "the offense reports in the case," and "One report reflects that the deceased had lots of boyfriends and was very sexually active." With what Keller described as—in a later interview—Ogg's "promiscuity" in mind, the court agreed with arguments made by the state during the habeas hearing that the absence of Criner's semen could be explained by use of a condom or coitus interuptus, and concluded that "[t]he DNA evidence shows merely that the victim had sex[ ] with someone other than [Criner] at a time relatively near her death. It does not and cannot exclude the possibility that she also had sex[ ] with [Criner]." The majority thought, the evidence adduced at trial was sufficient for the jury to have convicted Criner. The weightiest evidence, the court thought, was Criner's "confessions" to Pitts, Hooker, and Ringo, but it also noted that no other rape had been reported in the area that night and that Criner had changed his story once the news of Ogg's murder broke.

After the case was decided, Keller, Baird, Joel Albrecht, the foreman of the trial jury, were among those interviewed by Frontline. Keller emphasized the importance of the finality of judgments, and said that Criner had not unquestionably established he was innocent, the applicable standard according to her. She reiterated that the "DNA evidence establishes that someone else had sex with this girl, who was promiscuous." She added: "DNA evidence means different things in different contexts. It's like fingerprint evidence. If someone's fingerprints are at the scene of a crime, that means the person was there at some time or another. But if his fingerprints aren't there, it doesn't prove that he's innocent of a crime committed at that scene, especially if he's told people that he committed the crime[, as Criner had]." She also stated that an appellate court "look[s] at [new evidence] to see whether it would have made a difference in their verdict. If it would, he gets a new trial. If it wouldn't, then he doesn't."

Baird disputed that Criner had "confessed" to the crime (Criner's statements to his friends "did not describe the young lady, or the location, and did not necessarily even describe a sexual act that was consistent with the accusations against [him],") and that there was anything in the trial record that established Ogg's promiscuity. He accused the state of flip-flopping, because it had originally argued that Ogg had not had sex with anybody besides Criner, and argued that neither "failure to ejaculate" nor "use of a condom" arguments were presented to the jury at trial. He emphasized that juries were the heart of the judicial system. In 2009, Texas Monthly said of this interview that Keller appeared to have considered the DNA evidence "a technicality."

Albrecht stated: "I don't understand how the court could say what we would do," and averred that he thought that "if the DNA came forth stating that it was negative, the verdict would not have been 'guilty.'"

After Keller defeated Judge Tom Price in a primary election for the Chief Judge's seat, Price said that Keller's Criner opinion had made the court a "national laughingstock."

The Bush pardon

Following the CAA's refusal to order a new trial, the cigarette butt found at the scene (and not adduced at trial) was subjected to DNA testing. The DNA on the cigarette was not a match for Criner, but it was a match for the semen found in Ogg. Ogg's DNA was also found on the cigarette, indicating that she shared a cigarette with the person who had sex with her (and who presumably killed her). These results convinced the district attorney, local sheriff and the trial judge that Criner was not guilty. The Texas Board of Pardons and Paroles recommended he be pardoned and, citing "credible new evidence [that] raises substantial doubt about [Criner's] guilt," then-Governor George W. Bush pardoned him in 2000.

Michael Richard case

Michael Wayne Richard, a convicted rapist and murderer, was scheduled to be executed by Texas on September 25, 2007. That day, the U.S. Supreme Court refused a last-minute challenge to Richard's execution. The same morning, however, the court granted review in Baze v. Rees, a Kentucky case challenging the constitutionality of the lethal injection protocol used in both that state and Texas (the court later rejected the challenge). Richard's lawyers at Texas Defender Service wanted a stay of execution pending decision of Baze; due to computer problems, however, they could not file the request before 5pm when the clerk's office closed. They called the clerk's office to ask if they could file late.

The clerk, unsure, called the court's General Counsel, Edward Marty, who in turn called Keller to ask if the office could remain open late. What Marty told Keller about the request is unclear and disputed, although Keller did understand that the call was about the Richard execution. She told Marty that the clerk's office closes at 5, and Richard was executed later that night.

Keller maintains that it has long been precedent in Texas for late appeals to be hand-delivered to the court or a judge, and that it was not required for them to be filed with the clerk. Rule 9.2(a) of the Texas Rules of Appellate Procedure permits either form of filing, and another judge of the court, Judge Cheryl Johnson was on call to receive such last-minute appeals. Even with the clerk's office closed, and even had Johnson been unavailable, Keller's lawyer says, Rule 9 would have allowed Richard's lawyers to file the motion with any judge of the court: "'There were 11 doors available to ... [the defense, and t]hey knocked on only one' by calling the deputy clerk and nobody else...." On the other hand, however, prosecutors point to Rule 9.6, which directs that "Parties and counsel may communicate with the appellate court about a case only through the clerk." The two rules appear to be at odds.

Although "Richard's attorneys could have easily filed the appeal by calling the on-duty judge," and, as Johnson later testified, "communications about his execution should have gone to her under the CCA's execution-day protocol," they did not contact Johnson (or any other judge of the court), instead pursuing the clerk by cell phone. Johnson testified that she "didn't learn about the request for more time until four days after Richard was executed," although that claim was disputed during Keller's ethics charge hearing. But Keller didn't call Johnson, either, and when Keller's actions were later questioned, both Johnson and prosecutors for the Judicial Conduct Commission charged that Keller violated an ethical duty by failing to inform Johnson of her conversation with the clerk, or directing the request to Johnson. The inmate's attorneys at the Texas Defender Services has also been questioned as to why he failed to file at least a handwritten motion for stay of execution before or after 5pm; had he filed the motion, even if rejected, he would have been able to demonstrate to the US Supreme Court that the state appeals process had been exhausted.

Keller testified at her hearing that in hindsight she would do nothing differently.

State Commission on Judicial Conduct charges

Several judicial complaints were filed against Keller with the Texas State Commission on Judicial Conduct. The Texas Court of Criminal Appeals subsequently changed its rules to allow for late submissions in death penalty cases and other emergency situations, and recently enabled filing in death penalty execution cases and certain other emergency situations. On February 19, 2009, the State Commission on Judicial Conduct charged Keller with five counts of misconduct. The commission charged Keller with dereliction of duty, denying Richard his right to access to the courts and incompetence in office. It wrote that Keller's actions constituted “willful or persistent conduct that casts public discredit on the judiciary”. The Commission voted to initiate formal proceedings against Keller that will include a public trial starting on August 17, 2009 before a Special Master appointed by the Texas Supreme Court, after which findings of fact will be presented to the Commission. Based on the Report from the Special Master, the Commission may vote to dismiss the case, issue a public censure, or recommend to the Supreme Court that Keller be removed from office.

Impeachment proceedings

Texas State Representative Lon Burnam filed a resolution in the Texas Legislature on February 16, 2009, calling for the impeachment of Keller for “neglect of duty” in regard to her actions involving Michael Richard's appeal. Burnam said: "It’s one thing for a banker to close shop at 5 o’clock sharp. But a public official who stands between a human being and the death chamber must be held to a higher standard." On February 19, 2009, The New York Times endorsed a legislative inquiry into Keller's behavior: “If the facts are as reported, Judge Keller should be removed from the bench”.

Real estate holdings not disclosed

The Dallas Morning News claimed on March 30, 2009 that Keller had "failed to abide by legal requirements that she disclose nearly $2 million in real estate holdings."

Keller has sought to have the charges dismissed, saying that it would be "financially ruinous" for her to pay a private attorney or law firm to fight the allegations.

Judge Keller amended her personal financial statement in April 2009 to disclose more than $2.4 million in property and income previously left out. Keller claims that her failure to fully disclose her financial information stemmed from error and not a deliberate attempt to mislead. She "faces a civil and criminal complaint alleging she violated state ethics laws by failing to fully disclose her financial assets".

External links

• Official Website for the Texas Court of Criminal Appeals