The Matlock Blog

Ask the experts: Judge Sharon Keller has to go

Here's an interesting twist in the ongoing saga of whether Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals.  It seems those that actually know legal ethics seem to think Judge Keller is, well, ethically challenged.  

In a written declaration by some 24 experts on judicial ethics, Judge Keller is violated judicial ethics, including her obligation to provide litigants due process of law.  It seems the primary concern of the experts is Judge Keller's statements that she is a prosecution-oriented person.  It's hard to believe no one has ever complained like this about a sitting criminal appellate court judge openly stating she is pro-prosecution.  Could this set a precedent for other sitting judges who are openly pro-prosecution?

Another source of contention with the experts is the judge's lying misrepresentations in her sworn answer to the formal proceedings in In Re:  Honorable Sharon Keller.  Not only that, but it seems it's unethical for a judge to get the state to pay for her defense when she owns almost $2 million dollars in real estate holding that she blatantly omitted forgot to include in her financial disclosure statement.  

I suppose it's strange that such a declaration would be submitted in an ethics case.  Of course, I can't say many people are as interested in an ethics case as this one.  

Or is it strange that it has taken this long for someone to do something about Judge Keller?  But what the hell do I know?

No kids in prison, so no future dangerousness. Death Sentence reversed.

In Berry v. State, __ S.W.3d __ (Tex.Crim.App. No. 74,913, May 23, 2007), the Appellant was convicted of Capital Murder and sentenced to death for the killing of her baby, putting him in a plastic bag and throwing the body into a dumpster. During trial, evidence was presented the Appellant has previously abandoned another baby on the side of the road. The question on appeal was whether the State had presented sufficient evidence to support future dangerousness to sustain a death sentence. The Court of Appeals agreed with the Appellant that there was no evidence of future dangerousness and reversed the death sentence and reformed it to life.
The Appellant presented evidence at sentencing that the acts of violence were out of character for her. The offenses all involved pregnancies and children of her own. Furthermore, the Appellant argued the likelihood of her having children in prison was low, and that even if she was paroled from her life sentence in forty years she would no longer be physically able to have children since she would be in her sixties.
The Court of Appeals agreed with the Appellant that the State had failed to meet its burden of proof concluding she had only been dangerous to her own children, that there was a ver low likelihood she would have more children if sentenced to life in prison, and as such was not a future danger. The Court reversed the death sentence and reformed it to life.

Texas CCA denies writ application under Article 11.07 Section 4(a)(2) - Applicant must show but for the constitutional violation, no rational jury would have convicted

In Ex parte Brooks, __ S.W.3d __ (Tex.Crim.App. No. 75,405, 4/4/07), the CCA explained how an applicant must provide both constitutional-violation claims with a prima facie claim of actual innocence to satisfy Article 11.07 Section 4(a)(2). That article states "Sec. 4. (a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that: (2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt."
The CCA explains that this showing necessarily must include a prima facie showing of actual innocence in order for the applicant to demonstrate the constitutional violation at his trial resulted in a miscarriage of justice. The facts of the Applicant's case failed to satisfy this requirement. The Applicant claimed only that "parts of the trial record would clearly demonstrate and prove Petitioner's actual innocence," as well as "that he was an innocent bystander and had no knowledge of drugs and a firearm." The court concluded this was not enough. The applicant failed to meet the threshold requirement of showing a constitutional violation that led to a miscarriage of justice through the incarceration of someone who was actually innocent. Because he did not include this required prima facie claim in addition to his constitutional claims, the 11.07 application was dismissed.

Indictment that only alleges misdemeanor good enough for felony court jurisdiction

The Appellant was convicted of the felony offense of Hindering Apprehension in violation of Texas Penal Code Section 38.05, and subsequently sentenced to two years in prison. On appeal he claimed the trial court did not have subject matter jurisdiction to try the case because the indictment only alleged the misdemeanor offense of Hindering Apprehension. To constitute a felony, the defendant must provide harbor or hinder the arrest of a fugitive and the the defendant must have knowledge of the fugitive's status. Otherwise, the offense is a Class A misdemeanor.

The Court of Criminal Appeals in an opinion by Judge Cochran concluded that the conviction should be affirmed because anyone could fairly conclude from the face of the charging document the State actually intended to charge a felony offense and not a misdemeanor. Furthermore, the Appellant failed to object to the flaw in the indictment prior to the date of trial. Teal v. State, __ S.W.3d __, (Tex.Crim.App. No. 689-06, 3/7/07).