Monday, April 27, 2009

Written Testimony of Chuck Herrring to be Submitted at Sharon Keller Hearing


I am an attorney in private practice in Austin in
the law firm of Herring & Irwin, L.L.P. My principal
practice area is the law of lawyering--which focuses
on issues of legal ethics, legal malpractice, and
professional responsibility for Texas lawyers. In
1990, I wrote my first book, Texas Legal Malpractice
& Lawyer Discipline, which I now update annually.
Thus, I've been writing about and teaching legal
ethics for some 20 years. I also served two terms on
the Texas Supreme Court's Advisory Committee and
served as Chair of the Texas Supreme Court's
Statewide Task Force on Sanctions and also the State
Bar's Committee for the Prevention of Legal Malpractice
and Grievances. I have served as an expert witness on
legal ethics issues for the State Bar of Texas, for
the Chief Disciplinary Counsel, for the Office of
the Texas Attorney General, and for various private
lawyers and litigants. I've attached a copy of my
resume to this testimony. I offer this testimony
on my own behalf and not on behalf of any other
person or organization.

I appreciate this Committee's consideration of
H.R. No. 480, concerning the possible impeachment
of Judge Sharon Keller, and I respectfully offer
my testimony in support of the Resolution. In my
opinion, the conduct of Judge Keller, as reported
in the media and as charged in the "Notice of
Formal Proceedings" (hereinafter "Notice") in
Inquiry No. 96 before the State Commission on
Judicial Conduct, clearly meets the constitutional
standards for impeachment under Article XV of the
Texas Constitution, as well as the standards for
removal of a judge or justice from office, as
provided in Section 1-a(6)A of Article V of the
Texas Constitution.

Before I outline the specific allegations that
in my view meet those constitutional standards
for impeachment and removal, I want to emphasize
three general points that I believe make this
Resolution a particularly important matter for
legislative action.

First, if the published allegations are correct,
Judge Keller was personally responsible for
killing a man on a day when he should not have
died. That is the most severe possible consequence
imaginable for judicial misconduct.1 I submit that
if that type of egregious judicial misconduct,
with the most serious possible consequences
imaginable, does not require removal from office,
nothing does. By comparison, the charges against
the last judge impeached by this Texas House,
Judge O.P. Carrillo, alleged misconduct that
included stealing groceries; using public funds
to pay ranch hands and other private employees;
using public equipment on his ranch; filing a
false financial statement; having conflicts of
interest; and conspiring to improperly influence
a grand jury.2 The Texas Senate acquitted Judge
Carrillo on the impeachment article alleging
stealing groceries, but convicted him on an
article alleging conspiracy to collect government
rental monies on non-existent equipment--and
dismissed the other articles without a decision.3
In short, the Texas Legislature convicted Judge
Carrillo and removed him from office for false
rentals. He did not wrongfully cause anyone's
death, which is exactly what Judge Keller
allegedly did.

Second, based on Judge Keller's Answer filed
in the Commission on Judicial Conduct
proceedings, and based upon the published
remarks of her lawyer, it appears that she
is claiming that the lawyers for Mr. Richard
wanted some extraordinary relief in the form
of keeping the court clerk's office after 5:00
p.m., and then those lawyers capriciously or
negligently chose not to follow other available
remedies that permitted an after-hours filing.
If that is her position, I submit that her
position is simply not credible. The lawyers
who handled Michael Richard's case were with
the Texas Defender Service (TDS), which was
founded in 1995 and is the most skilled,
respected, and experienced organization in
Texas providing representation to persons on
death row. Their Board includes law school
professors from Texas and across the country
who are expert in death penalty law and
representation, including for example the
Co-Director of the Capital Punishment Center
at the University of Texas School of Law, and
the Co-Director of the Death Penalty Clinic at
Boalt School of Law. Professor Dow, who worked
on the Richard case, heads the Innocence Project
at the University of Houston. He is a superb
advocate, and he knows how these cases work as
well as anyone in Texas. In short, in this
field of law practice, they are the best and
most knowledgeable lawyers available. Their
commitment to justice is awe-inspiring and

Third, I think it is very important that Judge
Keller's alleged misconduct took place in the
context of a death penalty case. The death penalty
is the ultimate criminal punishment. From 2002 to
2006, 40 percent of the executions in the United
States took place in Texas; in 2007, over 60
percent were in Texas; in 2008, over 50 percent.
Whether you are for or against the death penalty
in Texas is irrelevant to the merits of the present
matter. But those who support the death penalty
want that penalty administered fairly and legally.
More than any other single act in the history of
Texas, Judge Keller's conduct in this case has held
the death penalty and the Texas criminal justice
system up to international scorn and ridicule. If
you google "Sharon Keller," you get over 42,000
hits--and you find an almost unlimited number of
denunciations of Judge Keller and our system of
justice in Texas. We need to restore respect for
Texas justice. The Legislature can do that now,
promptly, and as the elected representatives of
the people of Texas, you can speak with the
authoritative voice that this case requires.4

Turning to the grounds for impeachment, I note
that Section 2 of H.R. No. 480 identifies as
possible grounds for impeachment the following:

. . . gross neglect of duty and conducting her
official duties with willful disregard for human
life in connection with her actions on the evening
of September 25, 2007, including her apparent
irresponsible refusal to abide by the prior practice
of the Texas Court of Criminal Appeals in order to
receive the appeal of Michael Richard, which conduct
may have resulted in Mr. Richard's deprivation of
life without due process of law as guaranteed by the
Fifth Amendment to the Constitution of the United
States and Section 19, Article I, Texas Constitution,
by means of a potentially unlawful execution by
lethal injection, and in the embarrassment of the
State of Texas in a manner that casts severe doubt
on the impartiality of the Texas Court of Criminal
Appeals and the entire criminal justice system of
this state.

In one sense, the charge is broad: "gross neglect
of duty . . . including . . . ." However, in fact
the charge appears to be quite narrow, focusing
on her actions during, at most, a few hours on a
single day--"in connection with her actions
occurring on the evening of September 25, 2007."
The charge fits well within the broad
constitutionally permissible framework for
impeachment in Texas, as enunciated at length
by the Texas Supreme Court in Ferguson v. Maddox,
263 S.W. 888 (Tex. 1924):

While impeachable offenses are not defined in
the Constitution, they are very clearly
designated or pointed out by the term
'impeachment,' which at once connotes the offenses
to be considered and the procedure for the trial
thereof. . . . 'Impeachment,' at the time of the
adoption of the Constitution, was an established
and well-understood procedure in English and
American parliamentary law, and it had been
resorted to from time to time in the former
country for perhaps 500 years. It was designed,
primarily, to reach those in high places guilty
to official delinquencies or maladministration.
It was settled that the wrongs justifying
impeachment need not be statutory offenses or
common-law offenses, or even offenses against
any positive law. Generally speaking, they were
designated as high crimes and misdemeanors, which,
in effect meant nothing more than grave official

In the nature of things, these offenses cannot be
defined, except in the most general way. A
definition can, at best, do little more than state
the principle upon which the offense rests.
Consequently, no attempt was usually made to
define impeachable offenses, and the futility as
well as the unwisdom of attempting to do so has
been commented upon. . . .

When the Constitution of Texas was adopted, it
was done in the light of, and with a full
knowledge and understanding of, the principles of
impeachment as theretofore established in English
and American parliamentary procedure. The
Constitution in this matter of impeachment created
nothing new. By it, something existing and well
understood was simply adopted. The power granted
to the House to 'impeach,' and the Senate to try
'impeachment,' carries with it, by inevitable
implication, the power to the one to prefer and
to the other to try charges for such official
delinquencies, wrongs, or malfeasances as justified
impeachment according to the principles established
by the common law and the practice of the English
Parliament and the parliamentary bodies in America.
The grant of the general power of 'impeachment'
properly and sufficiently indicates the causes
for its exercise.

It is said this construction of the Constitution
confers arbitrary and unrestrained power on the
Senate. Not so at all. There is no such thing
under our government as arbitrary power. As has
often been said, it is a government of laws,
and not a government of men. We most
emphatically repudiate the idea that any officer
may be arbitrarily impeached. In the exercise of
its exalted jurisdiction, the Senate must proceed
according to law. It must ascertain the law by an
examination of the Constitution, legal treatises,
the common law and parliamentary precedents, and
therefrom determine the nature, elements, and
characteristics of impeachable offenses, and, in
the light of reason, apply the principles so
worked out to the facts of the case before it.
This is not arbitrary power. It is the exercise
of judicial authority under the Constitution. . . .

Id. at 892. As the Texas Supreme Court emphasized,
the impeachment remedy provided by the Texas
Constitution is necessary for "the protection of
the people from official delinquencies or
malfeasances." Id. Clearly, all citizens should
be entitled to protection from wrongful execution
without due process of law, and all citizens should
be entitled to a fair chance to present their cases
in court. If Judge Keller did what she is accused
of having done, it is difficult to imagine a
greater judicial threat to the integrity of the
criminal justice system and to the rights and
the very lives of Texans whose fates are entrusted
to that system.

In addition to the broad parameters for impeachment
explained in Ferguson and the specific categories
of charges outlined in the Resolution, the
standards for removal of judges and justices set
forth in Section 1-a(6) of the Texas Constitution
also are relevant. In pertinent part, that provision

Any Justice or Judge of the courts established by
this Constitution or created by the Legislature as
provided in Section 1, Article V, of this
Constitution, may, subject to the other provisions
hereof, be removed from office for willful or
persistent violation of rules promulgated by the
Supreme Court of Texas, incompetence in performing
the duties of the office, willful violation of
the Code of Judicial Conduct, or willful or
persistent conduct that is clearly inconsistent
with the proper performance of his duties or casts
public discredit upon the judiciary or
administration of justice.

Certainly the Resolution's references to Judge
Keller's alleged "gross neglect of duty" and
conducting her official duties "with willful
disregard for human life" are consistent with
the standards in Section 1-a(6).

As stated in the Preamble to the Texas Code of
Judicial Conduct (hereinafter "the Code"), the
Code is intended to "state basic standards which
should govern the conduct of all judges and to
provide guidance to assist judges in establishing
and maintaining high standards of judicial and
personal conduct." One of the most fundamental and
important precepts in the Code is Canon 2A, which
provides as follows:

A judge shall comply with the law and should act
at all times in a manner that promotes public
confidence in the integrity and impartiality of
the judiciary.

If, as the Commission's Notice has alleged, and
as published reports indicate, Judge Keller willfully
and persistently failed to follow the Court's
Execution-day Procedures, she has violated this
core principle of judicial conduct. The national
and international condemnation heaped upon the
Texas criminal justice system as a result of
Judge Keller's actions indicates that she has
not acted in a manner "that promotes public
confidence in the integrity and impartiality of
the judiciary." That conduct also fits well
within the language of the Resolution, "gross
neglect of duty and conducting her official duties
with willful disregard for human life in
connection with her actions on the evening of
September 25, 2007." If Judge Keller effectively
foreclosed access to court, she also apparently
violated Canon 2A, and engaged in "gross neglect
of duty," in violating Section 13 of Article 1 of the
Texas Constitution, which provides that "[a]ll courts
shall be open, and every person . . . shall have remedy
by due course of law." Furthermore, the same conduct
would have violated Canon 3B(8) of the Code, which
provides that "[a] judge shall accord to every person
who has a legal interest in a proceeding, or that
person's lawyer, the right to be heard according to

For these reasons, I respectfully request that this
Committee vote in favor of H.R. No. 480. I appreciate
your patience in considering my views.

NOTE: Chuck Herring is a member of the TCRP Board of


Texas Civil Rights Project

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