Tuesday, November 30, 2010


Texas is rapidly gaining more prominence for the wrong kinds of things.  It is emerging as the leading state in the union for having wrongly convicted people and sentenced them to life in prison or death.  An example was revealed recently in Washington County where a man had spent 18 years for being an accomplice to a murder he did not commit.  The account in daily newspapers reporting on the subject described egregious misconduct on the part of prosecutors from covering up evidence to hiding witnesses and intimidating possible defense witnesses.  A substantial portion of the Texas population, although not a majority, opposes the death penalty for these very reasons.  The death penalty is a final result being delivered by an obviously imperfect system.

Almost everything in a democratic society has political overtones; and for the most part, in representative government, elected officials should represent the people.  However, if any part of American government should be held to an imminently higher standard, it should be our judiciary.  Unfortunately, Texas seems to lead in another shameful category.  The institutions supposedly acting as "watchdogs" for our judiciary are obviously becoming both political and partisan. 

A recent example of blatant politics in which wrongdoing is not only overlooked but actively covered up has occurred with the handling of the case against Judge Keller of the Texas Court of Criminal Appeals.  The quality ascribed as judicial temperament should include, above all, a basic concept of fairness.  In our criminal system as rife with flaws and shortcomings as it is, judges should at all cost bend over backwards to give true meaning to "innocent until proven guilty."  Judge Keller obviously gave in to her basic instincts favoring the death penalty while showing a callous disregard for the possibility that an accused might be innocent.

Traditionally, a single judge on the Court of Criminal Appeals is assigned responsibility for handling special appeals, particularly emergency appeals in death sentence cases.  Judge Keller had been assigned this duty in the case of Michael Wayne Richard, a man facing death by injection, on an appeal of a 2007 murder case.  

Texas legal scholars for the most part agree that Judge Keller  callously disregarded traditional handling of death penalty appeals.  Many even advocated that her conduct was such that it possibly merited removal from office; and at the very least, a formal reprimand for misconduct.  After a full hearing conducted by the State Commission on Judicial Conduct, Judge Keller was found in violation of ethical rules for judges.  Judge Keller was issued what was considered by most a simple slap on the wrist in the form of a warning.  Not even satisfied by that mild result, Judge Keller brazenly appealed to the all-Republican Supreme Court of Texas asking them to sit as a special court of review.  They did, and they set aside the simple warning on the theory that although the Commission had authority to issue a formal reprimand, removal or suspension, they did not have authority to issue a lesser punishment in the form of a warning.  Therefore, Judge Keller escaped any punishment for her misconduct.  To most observers the ruling of the Supreme Court defied logic as well as common sense.  

It seems that this Republican-favoring ruling ranks up there with the recent ruling of the Texas Ethics Commission which ruled during the investigation of the Tom DeLay money laundering episode that failure to report a check did not amount to a violation of our political contribution rule since it was not in the form of cash.  If you will recall, this is the incident where a large check was given; the Commission held that simply reporting the recipient received "a check" was adequate to obey the law of disclosure of political contributions. Covering up misconduct and ethical violations solely to protect one’s party member is not only wrong, it is dangerous and makes a mockery of the principle of equality under the law.

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