Judges Reap What They Sowed
By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
There may be no Hero to the rescue in this dark drama hanging over the state and federal judiciaries in South Texas. The clouds in the horizon are as ominous as those that preceded Hurricane Ike last September. A sitting federal judge, the Honorable Samuel Kent who formerly oversaw maritime law cases for the past seventeen years in Galveston, was facing trial in a Houston federal district court on federal sex crime charges. The local media was reporting that attorneys who regularly practiced before Judge Kent were following the case with utter amazement and, we suspect, a near morbid fascination.
According to media reports, Judge Kent dominated proceedings before him with a harsh gavel and was known for what the Houston Chronicle called “biting written opinions.” Life indeed has a peculiar knack for turning things topsy-turvy. So it was with Judge Kent who found himself facing trial on five sexual abuse charges involving two former employees and one charge of lying to a Fifth Circuit Court of Appeals judicial commission assigned to investigate the sexual abuse allegations.
Represented by the preeminent Houston criminal defense attorney Dick DeGuerin, Judge Kent had been vociferous in his protestations of innocence during pre-trial court proceedings. Through a number of pre-trial pleadings, DeGuerin indicated a series of seemingly conflicting defenses: 1) the employees consented, 2) the judge suffers from erectile dysfunction, and 3) the judge is so consumed by such a powerful ego that he may not have been able to discern if the employees actually consented to alleged sexual advances he made towards them.
A recent Chronicle article about the Kent case quoted Arthur Hellman, a University of Pittsburgh expert on federal judicial discipline: “This is unprecedented,” Hellman said, pointing out that a few other federal judges have faced criminal trials involving “money and corruption” issues but none for sex offenses.
“I think Congress, the Judiciary Committee, will be watching because if there is a criminal conviction they almost certainly have to consider the possibility of impeachment.”
But impeachment proceedings in the Kent case were avoided when the judge on the day his trial was scheduled to commence, February 23, 2009, opted to take a “plea deal.” The deal called for Kent to plead guilty to one count of obstruction of justice and resign from the bench. The guilty plea exposes him to a term of up to 20 years in prison. The Government is asking for a 3-year prison term which, in all likelihood, will be the sentence range the U.S. Sentencing Guidelines will recommend. The sentencing judge, however, does not have to accept either recommendation. He can depart downward, impose the sentence he deems appropriate, and under recent U.S. Supreme Court authority, it would be exceedingly difficult tor the Fifth Circuit on appeal to reverse any downward departure. Sentencing is initially set for May 11, 2009.
While Judge Kent escaped possible impeachment, the Chief Judge of the Texas Court of Criminal Appeals, Sharon Keller, may not be so lucky. She also finds her judicial career on the precipice of crashing on the rocks below. Judge Keller’s case has nothing to do with sexual impropriety, but, like Kent, it has a lot to do with her attitude and behavior from the bench. Houston Chronicle columnist Rick Casey captured Keller’s judicial attitude in a recent a column (Feb. 20, 2009):
“This is a woman who voted to deny freedom to a man imprisoned for rape even after DNA evidence showed the sperm belonged to someone else. Her argument: He might have worn a condom.
“Later evidence provided proof of his innocence even she couldn’t explain away.
“This is a woman who, with her colleagues, appointed grossly incompetent lawyers to handle appeals for indigent inmates and then said, ‘Sorry, your client had his chance,’ when skilled lawyers later came in to try to clean up the messes.
“This is a woman who, a week before Christmas in 2002, voted to deny freedom to a man who under pressure had accepted a plea bargain for a crime that new evidence showed (‘unquestionably,’ according to the trial judge who heard the evidence) he did not commit.”
Thus, it really did not come as a surprise to the many attorneys who have practiced before this former prosecutor that she did what she did in the Michael Wayne Richard case on September 25, 2007. Richard was scheduled to be put to death at approximately 6:00 p.m. that day. Earlier that day at approximately 9:00 a.m. the U.S. Supreme Court granted certiorari in two Kentucky death cases challenging the constitutionality of the three-drug protocol utilized by that state—and Texas as well—in carrying out lethal injections.
Richard’s attorneys began a frantic last-minute legal effort to save their client’s life based on that Supreme Court ruling. It could legitimately be debated about the need for the 100-plus page brief the attorneys began preparing—of which they would need eleven copies to file with the Court of Criminal Appeals—but they did. By late afternoon the computers being utilized to prepare the mammoth brief crashed, setting the stage for a series of events that could lead to Keller’s impeachment from the appeals court.
All the judges on the Court of Criminal Appeals, including Keller, were aware that Richard faced an impending execution on September 25. Judge Cheryl Johnson was designated as the judge to hear the anticipated stay of execution request by Richard’s attorneys. The court’s general counsel, Edward Marty, and several other judges also agreed to remain after hours at the court until word of the actual execution was received.
According to Special Counsel for the State Commission of Judicial Conduct, John J. McKetta, III, Marty informed all the appeals court judges, including Keller, via e-mail that “The Supreme Court has just granted cert on two Kentucky cases in which lethal injection was claimed to be cruel and unusual … I do not know if Michael Wayne Richard will try to stay his execution for tonight over this issue or in what court.”
Later that afternoon Marty began drafting a proposed order for the Court, anticipating that Richard’s attorney would seek a stay based on the Supreme Court ruling. The Harris County District Attorney’s Office confirmed to Marty shortly afterwards that Richard’s attorneys indeed planned to “file a writ of prohibition” based on the Supreme Court action, according to McKetta.
At approximately 4:45 p.m., McKetta said, Richard’s attorney(s) called the Court of Criminal Appeals’ clerk’s office and requested permission to file Richard’s stay application a “few minutes” after the court’s 5:00 p.m. closing and official deadline filing time. Deputy Clerk Abel Acosta informed Richard’s attorney(s) about the 5:00 p.m. closing time but stated he would contact Marty, which he did.
Marty then notified Judge Keller at her home about the request for a late filing by Richard’s attorney(s) and asked if the clerk’s office should stay open past 5:00 p.m. Judge Keller replied “No” before asking “why?”
“They [the attorneys] wanted to file something, but they were not ready,” Marty explained.
Keller once again instructed Marty that the clerk’s office could not remain open past 5:00 p.m. Marty passed this directive on to the clerk’s office. The clerk’s office called the Texas Defender Service—the anti-death penalty group representing Richard—at 4:48 and informed them that nothing would be accepted for filing in the case past 5:00 p.m. A TDS paralegal suggested that she would bring the filing to the court and leave it with a security guard. The clerk’s office advised that this would serve no purpose since the documents would not be filed. Shortly thereafter the TDS called the clerk’s office back and asked if they could email or fax the documents to the court. Mr. Acosta informed them that a decision had already been made that the clerk’s office was not to accept any filings by past 5:00 p.m. At approximately 5:00 p.m. Judge Keller called Marty from her home and asked if Richard’s attorneys had filed anything with the court. He informed the judge that they had not. Finally, shortly before 6:00 p.m. the TDS called the clerk’s office saying they were headed to the clerk’s office to hand-deliver the documents. McKetta said that “Mr. Acosta told TDS not to bother because no one was there to accept the filing.”
At approximately 8:20 p.m. Michael Wayne Richard was executed by the State of Texas. Two days later the U.S. Supreme Court stayed the September 27 scheduled execution of Carlton Turner that was to be carried out by the State of Texas. Five days after the Supreme Court stayed the execution of Carlton Turner the Texas Court of Criminal Appeals stayed the execution of Heriberto Chi based on the “the exact claim that Mr. Richard was not able to present to the CCA on September 25, 2007,” according to Mr. McKetta.
In the wake of the Richard execution, 300 attorneys filed complaints with the State Commission on Judicial Conduct requesting that Judge Keller be removed from office. On February 19, 2009, the Commission responded by filing the below listed five charges of judicial misconduct against Keller
Judge Keller’s willful and persistent failure to follow CCA’s Execution-day Procedures on September 25, 2007, constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as Presiding Judge …
Judge Keller’s willful and persistent failure to follow CCA’s Execution-day Procedures on September 25, 2007, constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice …
Judge Keller’s conduct on September 25, 2007, did not accord Mr. Richard access to open courts or the right to be heard according to law. Judge Keller’s conduct constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as Presiding Judge …
Judge Keller’s conduct on September 25, 2007, did not accord Mr. Richard access to open courts or the right to be heard according to law. Keller’s conduct constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice …
Judge Keller’s willful and persistent failure to follow CCA’s Execution-day Procedures on September 25, 2007, constitutes incompetence in the performance of duties of office …
See: Inquiry Concerning a Judge, No. 96, Notice of Formal Proceedings, State Commission on Judicial Conduct (Feb. 19, 2009) [internal citations and rules omitted].
Judge Keller is represented by attorney Chip Babcock. Chronicle columnist Clay Robison reported recently (Feb. 23, 2009) that the judge may be forced to pick up the tab for her own legal expenses. Public officeholders, like Keller, can use political funds to pay legal fees when confronted with criminal charges or civil liabilities. But Robison reported that last month Keller informed the Texas Ethics Commission that she had no money in her political account, and since state law prohibits her from raising money until 2011 for any re-election bid in 2012, she appears to be a day late and a dollar short on paying her legal defense fees with political donations.
Judge Kent may also face some financial difficulties. It can be assumed, DeGuerin’s services did not come cheap. The judge is still eligible for his lifetime retirement, but being just 59, he is not currently eligible for retirement benefits. He can seek “early” retirement benefits with proof of a permanent disability. The judge suffers from diabetes and has been under psychiatric care for the past three years. These physical and psychological conditions may open the door to that lifetime government check.
The old biblical adage “you reap what you sow” seems fitting for two judges who ascended to the judiciary based on their “law-and-order” credentials but who, in the final analysis, appear to have had little respect for either.
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair