The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Applying the Code to Judge “Killer”

Posted by kswisher on Tuesday, February, 24, 2009

The Texas State Commission on Judicial Conduct has filed formal charges against Judge Keller (harshly dubbed Judge “Killer” by proponents of her removal from office) of the Texas Court of Criminal Appeals.  (In Texas, the Court of Criminal Appeals is the state’s highest court with respect to all criminal matters.)  The disciplinary prosecution presents an interesting case of dueling trivial procedures, yet the real issue is anything but trivial. 

Judge Keller is accused of the following sinister acts: While knowing that a death-row inmate’s lawyers were scrambling to seek a stay of execution because the Supreme Court of the United States had just agreed to decide whether execution by a particular lethal injection procedure was constitutional — and the inmate, Michael Richard, was slated to be executed that night by that same procedure — Judge Keller effectively denied the lawyers’ request to have the clerk’s office accept the motion to stay approximately twenty minutes late.  She did so while knowing that other judges of the Court of Criminal Appeals were waiting to address the anticipated filing, yet she communicated nothing to them.  Mr. Richard was executed that night, despite the fact that other similarly situated inmates were granted stays pending the Supreme Court’s decision and despite the fact that this same clerk’s office had accepted late filings in previous death-penalty cases.  (Although irrelevant to the judicial conduct matter, the Supreme Court denied relief on the lethal injection issue six months later.  See Baze v. Rees.)

Thus, it seems greatly due that Judge Keller is facing extreme scrutiny for this questionable conduct.  One of the questionable aspects about the prosecution itself, however, is its focus (or to be more precise, the focus of the charging document).  According to the charges, the violation of the Code, if any, is the failure to follow a local court rule concerning death-penalty cases.  That rule requires, in short, that these last-minute, “execution day” matters are initially handled by one assigned judge (and Judge Keller was not the assigned judge for Mr. Richard’s case) and that if a non-assigned judge receives information about the case (as Judge Keller did concerning the late filing), such “communications regarding the execution shall be first referred to the assigned judge.”  It is apparently undisputed that the lawyers’ communication about the late filing was never referred to the assigned judge.  The prosecution certainly has a good argument that Judge Keller breached this local rule (although I have no information, one way or the other, whether the local rule was properly promulgated and routinely followed) – so much so that three out of the five charges rest exclusively, and the remaining two charges rest at least partially, on the violation of this local rule.  But now we have each side hanging its hat on a technical procedural rule: The prosecution claiming that Judge Keller should have referred the communication to the assigned judge pursuant to the local court rule; Judge Keller undoubtedly claiming that the clerk’s office’s hours and means of accepting filings are bright and independent rules that must be followed in order to maintain an orderly and manageable filing system.  But neither rule violation addresses the real problem with Judge Keller’s conduct; the local rule is simply a way to discipline the real problem by pouring the facts over an existing Canon.  See Model Code of Judicial Conduct 2A (2004) (requiring compliance with the law), 3B(7) (requiring that each party be heard according to the law).  The real problem is that Judge Keller was willing to (and in fact, did) let a man die despite a meritorious motion to stay so that her clerk’s office did not have to remain open an extra twenty minutes (or spend the mental capital to figure out an alternative filing solution; faxes or emails come quickly to mind).  That is the unethical (indeed, seemingly inhumane) conduct, not the violation of a local rule.  Were it the other way (i.e., if the inmate’s meritorious motion to stay was technically in violation of a local procedural rule banning twenty-minute-late filings on execution night), I would expect that a serious judge would look for an exception to the rule, and if none, perhaps even waive its application.  I do not know, and it is not entirely clear from the charges, whether Judge Keller believed that her conduct violated the local rule; what I do know is that her actions violated virtually any meaningful notion of “integrity and impartiality.”  Model Code of Judicial Conduct Canon 1; see also id. Terminology (defining “impartiality” and “integrity”).  Leaving independence aside (although an argument could be made that even independence is at issue), those are the core duties echoed throughout every Canon in the Code.  It is just somewhat perplexing that there is not a more direct disciplinary rule for this conduct.  Any ideas?  As it stands, it seems a bit like prosecuting Al Capone for income-tax evasion.  Or is that comparison unjustified? 

The above reservations notwithstanding, I do believe that this prosecution is a good start; that ensuring compliance with “execution-day” protocols is not just “trivial” procedure; and that practically speaking, it might be wise to prosecute the conduct most easily established in a disciplinary hearing, even if that conduct is a step or two removed from the real problem. 

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