Keller for the Defense

The state’s largest newspapers want her fired. Her opponents have dubbed her “Killer Keller.” There’s even a website devoted to her impeachment: sharonkiller.com.

But her supporters say there’s more to Texas Court of Criminal Appeals presiding Judge Sharon Keller than the cold-hearted jurist many accounts depict.

Much has been said and written about Keller’s last-minute refusal to accept a death-row inmate’s appeal — Michael Richard was executed the night she infamously said, “We close at 5” — and about the enormous ethics fine she faces for allegedly failing to report millions in personal income. But accounts of Keller’s work to help ensure fair trials for poor defendants are sparse. “She’s gotten a lot of negative publicity, but there’s a lot she’s done that has really helped those that are less fortunate,” said Jim Bethke, executive director of the Texas Task Force on Indigent Defense.

Keller, who was first elected to the state’s top criminal court in 1994, has become the poster child for all that critics say is wrong with the Texas criminal justice system. In 2007, she refused to keep the court open late to receive an appeal from Richard’s attorneys, who said they needed more time to file the documents because of computer problems. That day, the U.S. Supreme Court decided to take up a case that questioned the constitutionality of the death penalty, and courts across the country began delaying executions while the high court mulled the issue. But Richard was executed, the last person in the U.S. to die during the court's de facto death penalty moratorium. This year, Keller received the largest fine in Texas Ethics Commission history — $100,000 — for allegedly failing to disclose income, including stocks, honorariums and real estate interests valued at $2.4 million, on her personal financial statements from 2004 to 2008. “What she’s done as a judge has brought discredit on the judiciary,” said Scott Cobb, president of the Texas Moratorium Network, who filed a complaint with the State Commission on Judicial Conduct against Keller seeking to have her removed.

For nearly as long as she has led the state’s highest criminal court, Keller has also served as chairwoman of the Task Force on Indigent Defense. Lawmakers created the task force in 2001 when Texas was a national laughingstock for its dismal provision of legal representation for poor criminal defendants. Now, counties must meet minimum standards for legal representation, thousands more poor defendants get qualified attorneys, and 91 counties — many in rural areas with few public resources — are served in some capacity by a public defender. Both critics and supporters of the Texas criminal justice system agree the task force has overseen a sea change in defense representation for people who can't otherwise afford it. And despite the roiling controversy over her judicial conduct, most seem to agree that Keller’s leadership has been instrumental. “We started at ground zero,” said state Rep. Pete Gallego, D-Alpine, a member of the task force and chairman of the House Criminal Jurisprudence Committee. “We were one of the worst states around, and as chairman of the task force, she’s really been in a real sense responsible for building the whole thing.”

Among the major initiatives that have improved representation for the poor is increased funding for counties to provide defense services. Before 2001, the state gave counties no money to provide indigent defense. Lawyers who did the work often received a pittance, making it difficult for courts to find qualified lawyers to take the cases. Last year, the task force awarded counties statewide $31 million to run public defender offices and provide indigent defense. Andrea Marsh, executive director of the Texas Fair Defense Project, said Keller has worked not only to give counties funds they need for indigent defense, but also to give them incentives for new and innovative programs. Task force grants have helped launch programs like Travis County’s Mental Health Public Defender Office. “She has been supportive of giving more of that money to program improvements and not just giving that money for the same old thing that isn’t working,” Marsh said.

Having judges like Keller on the indigent defense task force isn’t ideal, Marsh said. Oversight of defense lawyers, she said, should be independent of the judiciary in the same way it is for prosecutors. Despite general concerns about potential conflicts of interest, Marsh said Keller has been an effective leader of the task force, knowing that qualified lawyers at the beginning trial stages mean fewer cases for appellate judges to wade through down the line. “The court system doesn’t work if defendants don’t have competent representation,” Marsh said. “It creates all sorts of problems that a court like hers has to deal with later.”

Tony Odiorne is a member of the task force and an assistant public defender in the West Texas Regional Capital Public Defender Office in Amarillo. That office opened in 2007 with a grant of about $1 million from the task force and provides legal services for death penalty cases in more than 80 rural West Texas and Panhandle counties. Keller is definitely a “very staunch law-and-order person,” Odiorne said, but she’s not the cold, uncaring character some may perceive. “She’s very concerned about making sure [indigent defendants are] represented and well-represented, but she will be very tough on those attorneys if they don’t do their job, and maybe to the client’s detriment,” Odiorne said.

Tarrant County Judge Glen Whitley, who has served on the task force with Keller from the start, said he has “never sensed anything but fairness” from her. She went to great lengths to ensure that county leaders understood the requirements of the Fair Defense Act after it passed in 2001, ensuring that minimum standards for lawyers were implemented and that plans were in place to provide poor defendants with competent attorneys. Whitley said he’s tried to avoid conversations about Keller’s judicial and disclosure troubles. And what he’s read and seen in the media, he says, doesn’t comport with the advocate he knows from the task force. “She has always been what I consider to be very observant and very willing to allow everybody to really have their say,” Whitley said.

Keller, through a spokesman, declined a request for an interview for this story and said that she did not want to comment while complaints against her remain pending before both the State Commission on Judicial Conduct and the Texas Ethics Commission. After a five-hour hearing last month, the judicial commission left pending its decision on whether to discipline Keller. She faces five charges of judicial misconduct. The panel could remove her from the bench, censure her or take no action. At the hearing, according to Associated Press reports, Keller attorney Chip Babcock told the commission that death penalty opponents were engaging in a calculated strategy to oust her from the court. And Keller has said that the alleged financial disclosure errors were an unintentional oversight.

Keller’s critics say that as transformative as the task force work has been for the Texas criminal justice system, it doesn’t mitigate the damage she has done from the bench. “I don’t think that really comes into play when considering whether she behaved properly when it comes to her role on the court,” said Cobb, who is still collecting signatures on his petition for Keller’s impeachment through the website www.sharonkiller.com. Steve Hall, director of the StandDown Texas Project, which advocates for a death penalty moratorium, said Keller’s two roles as leader of the court and leader of the task force are incomparable. From the bench, she acts as a jurist, meting out life and death decisions with a philosophy that emphasizes finality and favors prosecution. As an administrator, she looks at the overall system instead of individual cases. Both are critical roles, Hall said, but her performance in each should be judged independently.