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Sharon Keller
Current Court Information:
Texas Court of Criminal Appeals
Title:	Presiding Judge
Position:	Presiding Judge
Service:
Active:	1994-2012
Chief:	2000-2012
Personal History
Born:	1953
Party:	Republican
Bachelors:	Rice University, 1975
Law School:	Southern Methodist University, 1978
Candidate 2012:
Candidate for:	Court of Criminal Appeals
State:	Texas
Election information 2012:
Incumbent:	Yes
Primary date:	May 29, 2012
Election date:	November 6, 2012

Sharon Keller is the presiding judge of the Texas Court of Criminal Appeals. She was first elected to the court in November of 1994^[1] and is the first woman ever elected to this court, which is the highest court in Texas in criminal matters in Texas. She was elected as its presiding judge in November of 2000^[2] and was re-elected to the court in November of 2006^[3]. Her current term ends in 2012.

2012 election

Keller is unopposed in the Republican primary on May 29. She will compete against Keith Hampton and Lance Stott in the general election on November 6, 2012. ^[4]

See also: Texas judicial elections, 2012

Education

Keller graduated from Rice University in 1975. She received her J.D. from Southern Methodist University in 1978.^[5]

Awards and Associations

• Distinguished Alumni Award for Judicial Service from the SMU Dedman School of Law.
• Chairman of the Texas Task Force on Indigent Defense.
• Member, Executive Board of the Capitol Area Council of the Boy Scouts of America.
• Life Fellow of the Texas Bar Foundation
• Member, Judicial Advisory Council to the Community Justice Assistance Division of the Texas Department of Criminal Justice.

Notable rulings

Cesar Fierro case

Origin

Fierro is on Death Row for the 1979 murder of Nicolas Castanon, an El Paso taxi driver. He was arrested when Gerardo Olague, a 16-year-old, implicated Fierro five months after Castanon's slaying. Before that, nothing had linked Fierro to the crime.^[6]

Olague testified that Castanon had agreed to give Fierro and Olague a ride to Juarez and on the way, Fierro shot the driver. Fierro has steadfastly maintained that he is innocent. Fierro was in an El Paso jail when police questioned him about the Castanon murder. He stated that local police told him that his parents were being held hostage in Mexico by Juarez detectives. Fierro said in a recent interview from Death Row in Livingston: "He told me if I signed, then they'd let them go, and if not, they were going to torture them," At Fierro's trial, Juarez and El Paso police denied wrongdoing.^[6]

Torture, perjured testimony

Keller became involved in controversy in 1996 when she wrote the opinion that denied a new trial to Cesar Fierro. The vote was 5-4. The coercion to confess by the police had been revealed after the trial. The prosecutor and the trial judge agreed that Fierro deserved a new trial, however Keller and the Texas Court of Criminal Appeals disagreed.^[6][7]

In her opinion, Keller accepted the trial court's conclusion of law that "there was a strong likelihood that the Defendant's confession had been coerced by the actions of the Juarez police and by the knowledge and acqiesence [sic] of those actions by Det. Medrano." ^[8] However, though acknowledging that Fierro's "due process rights were violated", she concluded that "the error was harmless" and denied the motion for a new trial.^[9][6]

She indicated the "knowing use of perjured testimony" is trial error and that applicant had to prove harm by a preponderance of evidence. In addition to the [coerced] confession, the State also had the testimony of Gerardo Olague, an eyewitness to the murder. Though, Fierro's confession alleged that Olague was an accomplice if the confession had been excluded, there would have been no need to corroborate Olague's testimony and Fierro showed no reason to doubt Olague's testimony. Thus it was more probable than not that the outcome of the trial would have been the same without the confession and Fierro had not met his burden.^[10]

There were four dissents filed, by Judges Clinton, Frank Maloney, Charles Baird, and Morris Overstreet. Morris Overstreet, called a confession the "most powerful piece of evidence" a prosecutor can offer. He said it was "totally inconceivable" that Fierro's confession did not convince the jurors of his guilt.^[6] Maloney and Overstreet, felt that the burden should have been on the state to show that the "perjured testimony" did no harm. However, they thought that Fierro had proved harm by a preponderance of evidence. They pointed out that the prosecutor testified that had he known the confession was coerced, he would joined a motion to suppress it which he felt would have been granted. Without the confession, he would then not have proceeded with the prosecution unless he could have corroborated the Olague's testimony because he felt Olague was "not the most credible witness". They felt this demonstrated that the prosecutor considered the confession to be critical and therefore it contributed to Fierro's conviction. Further, in the Supreme Court case, the majority cited to support its claim that the error here was subject to a harmless error analysis, "the Supreme Court recognized that some trial errors may be so egregious as to entitle an applicant to relief even if the error could not be shown to affect the jury's verdict." They felt that was the case here.^[11]

Michael Richard death penalty

Execution

On September 25, 2007, Keller declined to hear a plea from Michael Richard for an extension to submit a death penalty appeal beyond the 5:00 p.m. closing time of the Texas Court of Criminal Appeals. Richard was executed later that night. ^[12]

Closed doors

Keller stated that the court's clerk office would close at 5pm, which is required by state law. Judge Keller later stated that it had long been precedent in Texas for late appeals to be hand-delivered to the court or a judge and not required to be filed with the clerk. Also, the inmate's attorney was questioned about why he failed to file 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 Supreme Court that the state appeals process had been exhausted.

After these events, the Texas Court of Criminal Appeals changed its rules to allow for email submissions in death penalty cases and other emergency situations.

Keller was "charged by the State Commission on Judicial Conduct with 'willful and persistent' failure to follow the CCA's protocols for last-minute appeals and for bringing public discredit on the court". She faced five charges of judicial misconduct in a trial before district judge David A. Berchelmann that could lead to her removal. ^[13][14][15]

With the conclusion of the trial, Berchelmann was required to respond "promptly" to compile a "findings of fact" report for the State Commission on Judicial Conduct. The Commission used his findings to decide whether to censure Keller, drop the charges against her, or suggest that she be removed from office.^[16]

Civil rights group the Texas Civil Rights Project asked the federal courts to re-open the case.^[17]

Public warning issued

On July 16, 2010, the State Commission on Judicial Conduct came to an end of their formal proceedings and issued a public warning rebuking Keller for closing the court before the execution appeal could be filed, stating "willful or persistent misconduct" that "casts public discredit on the judiciary." Keller challenged the rebuke, saying the commission did not have the authority to issue such a public warning under the Texas Constitution. She said that it could only 1) dismiss the charges, 2) issue a censure or 3) recommend that the judge be removed from office.^[18]

Keller's lawyer asked for a writ of mandamus ordering the commission to clear the warning from its record and drop all charges against Judge Keller. He also claimed that there were problems with the commission members-- one was supposedly serving beyond his term and two others lived in the same appeals district. The commission pointed to the Constitution's "holdover provision" for commission terms and an informal opinion by the attorney general allowing commissioners of the same district to serve together.^[19]

In response, Keller's attorney said, "Judge Keller is disappointed and shocked that the commission has completely disregarded the findings of respected trial judge David Berchelmann… Judge Keller looks forward to challenging this decision in the judicial system."^[20]

Appeal

On July 29, 2010, Keller asked the Texas Supreme Court to overturn the warning issued by the State Commission on Judicial Conduct and dismiss any charges against her. The basis of her argument is that the Commission violated the Texas Constitution by issuing the warning, since the document gives that body no such authority. ^[21]

Response to appeal

In response to the appeal filed by Keller, the State Commission on Judicial Conduct proposed that her appeal be thrown out. The Commission took issue with Keller side-stepping the normal appellate process. The judge filed a writ of mandamus with the Texas Supreme Court, imploring the court to gauge the constitutionality of the Commission's ability to reprimand judges. ^[22]

Supreme Court ruling

On August 16, 2010, the Texas Supreme Court ruled to allow the public reprimand of Keller to stand. ^[23]

Reprimand revoked

In October 2010, a special review panel agreed with Keller that the State Commission on Judicial Conduct did not have the authority to issue a public warning against her. The only actions the Commission could have taken were public censure, recommendation of removal from office, or dismissal of the case. The case is now officially closed. ^[24]

Additional reading

• State Commission on Judicial Conduct Notice of Formal Proceedings, complaint against Keller
• Trial coverage from the Austin American Statesman
• "Trial of an Unrepentant Sharon Keller Wraps Up" Wall Street Journal Law Blog, August 21, 2009
• "An Unfit Judge" New York Times Editorial, August 20, 2009
• "Judge: Closing court before appeal wasn't a ruling" Associated Press, August 18, 2009

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."^[25]

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.^[25]

At issue:

• Keller says the charges violate her right to counsel because Texas will not allow her current attorney to represent her at taxpayer expense.
• Her attorney says that the cost of mounting a vigorous defense against the allegations would come to several hundred thousand dollars.
• Keller filed a sworn statement, as is legally required, with the Texas Ethics Commission in April 2008 that indicated an income of about $275,000. Her salary from the state is $152,500.
• The statement disclosed that Keller owned airline stock, a home in Austin and a commercial property in Dallas. County tax records valued the properties at about $1 million.
• However, according to the newspaper, the statement did not list:

• Keller's ownership interest in seven other residential and commercial properties in Dallas and Tarrant counties.
• Those properties are valued by county appraisal districts at about $1.9 million.^[25]

Judge Keller amended her personal financial statement in April of 2009 to disclose more than $2.4 million in property and income previously left out. Keller claimed 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". ^[26]

On April 28, 2010 the Texas Ethics Commission fined Keller $100,000 for failing to fully report her income and property holdings. ^[27] Keller’s attorney, Ed Shack of Austin said, "Judge Keller is very disappointed by the excessive penalty assessed against her by the Texas Ethics Commission today". ^[28]

External links

• Texas Court of Criminal Appeals website
• Restore Integrity, Impeach Sharon Keller website

References

v • d • e Texas Court of Criminal Appeals
Current	Sharon Keller  •  Lawrence Meyers  •  Tom Price  •  Paul Womack  •  Cheryl Johnson  •  Michael Keasler  •  Barbara Hervey  •  Cathy Cochran  •  Elsa Alcala  •
Former	Charles Holcomb  •  Thomas Reavley  •  Fortunato Benavides  •  Tom L. Beauchamp  •  Ernest Walter Belcher  •  MiCahah Madison Brooks  •  Charles Frankin ("Chuck") Campbell  •  George W. Clark  •  Samuel Houston Clinton, Jr.  •  Carl E. F. Dally  •  William Lewis Davidson  •  Lloyd Witten Davidson  •  Thomas Gilmer Davis  •  W. C. ("Bill") Davis  •  James Wesley Dice, Jr.  •  Leon Burr Douglas  •  Harry Newton Graves  •  Meade Felix Griffin  •  Thurman Morris Gupton  •  Alfred John Harper  •  Frank Lee Hawkins  •  John Nathaniel Henderson  •  James Mann Hurt  •  Offa Shivers Lattimore  •  Felix Johnson McCord  •  Michael Jerry McCormick  •  William Thomas McDonald, Sr.  •  Charles Edward ("Chuck") Miller  •  William Arthur Morrison  •  Wright Chalfant Morrow  •  Wendell Albert Odom  •  John Frank ("Jack") Onion, Jr.  •  William T. Phillips  •  Albert Collins Prendergast  •  William Franklin Ramsey  •  Truman Ernest Roberts  •  Eldred James Simkins  •  Marvin Odell Teague  •  Jim D. Vollers  •  Bill Marvin White  •  John Preston White  •  Samuel A. Willson  •  Clinton McKamy Winkler  •  Kenneth Koch Woodley  •