Sharon Keller's Response

 Posted on March 25, 2009 in Uncategorized

Here‘s Sharon Keller's sworn answer (h/t The Houston Chronicle, without which we would be a news-free town) to the Texas Commission for Judicial Conduct's Notice of Formal Proceedings against her. She spends several paragraphs reiterating the facts of Michael Richard's case (the "he had it coming" defense), explains that Richard was not seeking not to be executed, but rather not to be executed using the current protocol (the "only hastening the inevitable" defense) and points the finger at Court of Criminal Appeals counsel Edward Marty and Richard's lawyers (the "some other dude did it" defense).

My second favorite part of the answer is where Judge Keller claims that "If applied to these charges [Article 5] Section I-a(6)A [of the Texas Constitution] is unconstitutional under the United States and Texas Constitutions." So part of the Texas Constitution is itself unconstitutional under the Texas Constitution.

My favorite part of the answer, though, is this:

The charges are unconstitutional because Respondent has been denied the right to counsel guaranteed by the Texas and United States Constitutions, Texas statutes and the Commission's own rules. In this regard Respondent has requested that the Commission appoint the undersigned law firm as her counsel and pay its reasonable and customary fees for services rendered in responding to these charges. When that request was denied respondent asked the Texas Ethics Commission ("TEC") whether the undersigned firm could defend her on a pro bono basis (as the undersigned has agreed to do if permitted) and if not, on a reduced fee basis and if not, on an alternate billing arrangement such as a fixed fee. The TEC, citing its own rules, refused to answer Respondent's questions despite the fact that the CJC is pursuing these charges through a reputable law firm and skilled counsel who are only charging $1 for their services. See Exhibits "L" and "M." The net effect is that these two arms of Texas government are forcing Respondent to an election; either defend herself pro se or risk a financially ruinous legal bill to defend against these charges which are without merit.

Excellent. Keller is whining about having to pay the counsel of her choice. The government (here, the Commission for Judicial Conduct) has effectively pro bono outside special counsel, and Judge Keller - because she's a judge - may be ethically barred from accepting the gift of free or cut-rate counsel from the estimable Charles "Chip" Babcock of Jackson Walker. (Mary Alice Robbins discussed the problem at Tex Parte Blog; I understand why a judge might be barred from accepting free or reduced-rate services, but I don't see the problem with Babcock representing her for a reasonable flat, rather than hourly, rate.)

Among other things, Judge Keller asked that the CJC appoint Jackson Walker to represent her, and pay their reasonable and customary fees. If there is a constitutional right to counsel in this (non-criminal) case, it certainly doesn't provide for a judge who isn't indigent to get counsel at the taxpayers' expense. And Judge Keller, whose salary is at least $150,000 a year and who, by her own admission, "own[s] a considerable amount of property" - including (in 1999) a $1.3 million piece of land in Dallas, landlord to a topless bar –is certainly not indigent.

Even if Judge Keller were entitled to appointed counsel, she would not be entitled to reasonable counsel of her choice. The State is not required to ‘purchase for an indigent defendant all the assistance that his wealthier counterparts might buy.'" Keller knows this, of course, because she joined in the opinion (Griffith v. State - WPD).

Judge Keller says she's being forced to choose either to "defend herself pro se or risk a financially ruinous legal bill to defend against these charges which are without merit." Why Babcock's bill for defending meritless charges should be ruinous to the millionaire scion of a wealthy Dallas family is a mystery, but if this is a legitimate concern (and it must be, since the Honorable Sharon Keller herself swore to its truth) then Judge Keller might do what the working poor often have to do in criminal cases, and hire the lawyer she can afford rather than the lawyer she wants. The right to effective counsel is not the right to the best possible counsel.

If that idea is too unpalatable to her - if the Greenhill School girl can't conceive of having anything but the absolute best - she can always fall back on daddy's money. And if she finds herself too proud to ask daddy Jack for help, there's one other option. There would be no ethical issue with Chip Babcock helping her for free, if only she were no longer a judge....

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