Rolling The Hard Six

When the State Commission on Judicial Conduct instituted removal proceedings against Presiding Judge Keller I posted my thoughts. Well, I've followed the proceedings as best I can from the available news sources, and I felt obligated to post a follow up. Hell, if the Wall Street Journal can opine based upon second-hand accounts, why not a nobody showgirl like me?

This case was about the death penalty.

I know. What a bombshell. I point this out for the very simple reason that when I first wrote on the case I lamented the possibility that feelings and perceptions about the death penalty would infect the reportage and the trial itself. Well, there's that and I also felt the need to point that out after the State Commission on Judicial Conduct said it wasn't about the death penalty. That did not, however, stop the prosecutor from linking Judge Keller's conduct to the death penalty during closing argument. Look, I appreciate the argument that the efficacy and credibility of the death penalty depends upon a belief by the public that executions can be carefully administered. But they said this wasn't supposed to be about the death penalty, right? It's whether her conduct violated the open courts provision to the Texas Constitution. But I'll get to that in a second.

I saw a number of "Killer" headlines (even a reference to a "hanging" judge) in the various articles. Pretty snazzy stuff. It all makes for good copy. But they could've just as easily framed the story with two facts that came out in this trial that seemed to undermine the prosecution's entire case. First, Ed Marty did recall, however sheepishly, that he'd told Judge Johnson about the communication. You can diminish his credibility all you want, and I've seen some really good authors minimize this testimony quite effectively. However, if he is to be believed, that seems to suggest the procedures were followed, however messily.

Second, the head lawyer handling Richard's case acknowledged that he was responsible for knowing how to get things filed and that it wasn't Judge Keller's fault that he did not choose to contact the judges directly. In any other circumstance, this would be a tremendous indictment against how lawyers represent death row defendants. It might even merit it's own headline. Of course, we're not supposed to care about the lawyer's failings because they are just a big distraction from Keller's conduct. I might agree with that if this whole thing wasn't based upon the claim that Judge Keller violated the defendant's right to open courts. (I mean, if Judge Keller had just outright granted the extension that would've been a clearer violation of the Court's own protocols, so it's not the "protocols" we're concerned with.) This admission by Richard's attorney acknowledges that he had other avenues to seek relief for his client. That would seem to gut the entire case.

However, Keller is now the face of the Texas death penalty, and these things do not fit in the anti-death penalty narrative.

Of course, Judge Keller didn't do herself any favors by failing to take the opportunity to be contrite. By saying she would do the same thing again, Judge Keller once again demonstrated a tin political ear (although she's always been more of a reluctant politician anyway). You know, the same one that brought us "we close at 5." I've occasionally seen that blithe spirit in her opinions. You know, the ones with intricate, and logically correct, analyses of law, but they still make you say "WTF?" (I'm looking at you Standefer.) Sometimes she lacks Cochran's gift for practicality, and this might have been a good time to try and be practical.

The prosecutor's question, of course, was really one of the most astute things the prosecutor did in this case. There was no good answer to that question. It placed Judge Keller in a position where she could be contrite and effectively admit she was wrong during the trial, or risk excoriation for being arrogant in the media. Understandably she chose the latter. I personally don't see anything in her response other than prudence. In fact, since this whole thing blew up, I've noticed a little judicial humility in her opinions. (Baldwin and Salazar, for example.) Sure you can point to thing she wrote before this whole thing started, but I've read her opinions since. She sticks to her guns, but she also seems focused on authoring restrictive opinions. Given that, I'm reluctant to slam her response to a question in the middle of something she has reason to believe is a political witchhunt. I see it as more of a Hobson's choice on her part. And really, come on. Imagine the headlines we would've seen had she expressed the regret she was supposed to have shown. Faced with a choice between two "bad" answers, she did the only thing she could. As Admiral Adama once said, "Sometimes you gotta' roll the hard six."

But not only was it a classic cross-examination question, it also served to bring political pressure on the judge deciding the facts. How easily can this response be portrayed as arrogant and close-minded? Think of the outrage that would erupt if the case were dismissed. Of course, outrage will probably erupt for anything shy of removal, so maybe she was being practical after all. When you think about it, Judge Keller saying she'd do the same thing is only damning to the people who already think she was wrong. I can see how, if I were standing in her shoes on that day, I might end up taking the exact same course of action. I know that another judge is the duty judge and all communications about an execution should be referred to that judge. But, I also know that Ed Marty knows this. When Ed Marty calls asking about keeping the clerk's office open, I say the clerk's office closes at five. A statute says so, after all. Moreover, the duty judge doesn't have the authority to keep the clerk's office open, so if this were a substantive communication about the case, Marty would have called the duty judge first. The call about the clerk conveyed that this was about the clerk's office, not the case at hand. Sure, I know that they want to file something today, but why would Marty call me about that if I'm not the duty judge? Sure, I'm speculating and inferring and maybe even fantasizing, but so is reaching the conclusion that she did this willfully and persistently. And as a side note, saying "no" twice seems like a pretty low bar for persistence to me, but who am I?

That said, the perceived "lack of remorse" will certainly make a dismissal of the case politically difficult. But when you get down to the conduct itself, it does seem, to me at least, that the prosecution overreached on this one. This seems like awfully passive conduct for something that is supposed to be willful and persistent. She was willful and persistent in . . . failing to tell Ed Marty to refer all communication to the duty judge? And this was after Marty called her? Seems just as likely that this was all a miscommunication in light of the lengthy oral communication chain involved in this case. We've all played that "telegraph" game where everyone sits in a circle and you whisper a message in someone's ear only to find it completely different by the time the message gets back to you. Seems like there's some room for that going on here, and kudos to BeldarBlog for calling it almost two years ago. As Rick Casey even noted, it's not easy judging the judge.

It has been interesting to see that several of the comments by people reading the same news articles I've read seemed to think that this case was not as strong as advertised. I can't say the overwhelming number of comments showed that, and sure it's all anecdotal, but it was definitely more than I expected. Maybe I was just relieved to read a different point of view after having to wade through articles about the "hanging judge" or the various "just deserts" themed stories. Sure, there were exceptions (Chuck Lindell's live blog of the proceedings seemed pretty fair), but for the most part, it did seem that anti-death penalty/anti-Keller Gestalt seeped into the reportage of the trial. Given that, Judge Keller really had an impossible task ahead of her, though it seemed to me that she may have saved her job.

Rolling the hard six, indeed.