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20110120narrative_for_grievance

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					                               Explanation of Disciplinary Complaint
                                      Against Sharon Keller

Sharon Faye Keller is a licensed attorney. In light of my duty, as a member of the legal
profession, to insist that every lawyer comply with its minimum disciplinary standards, and my
oath upon admission to the bar to support the constitution of the State of Texas, I submit the
following grievance against her.

                                                   I.

By Final Order of April 28, 2010, the Texas Ethics Commission found that Respondent Keller
has violated state law repeatedly by failing to disclose financial interests, financial activities,
sources of income, property, Board and executive positions, and honorarium. By such
misconduct, she has violated Texas Disciplinary Rules of Professional Conduct 8.04(a)(2)
(prohibiting committing “a serious crime, . . ., or . . . any other criminal act that reflects adversely
on the lawyer’s honesty, trustworthiness or fitness in other respects”), 8.04(a)(3) (prohibiting a
lawyer from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation”), and
Rule 8.02(b) (requiring a “lawyer who is a candidate for judicial office” to comply with the
Texas Code of Judicial Conduct). A copy of the Texas Ethics Commission’s Final Order is
attached hereto as Exhibit “1.”

More specifically, the Texas Ethics Commission concluded that:

       Respondent Keller violated Government Code, Section 572.023(b)(2) by failing to report
       between 100 and 499 shares of stock her business and her personal financial statements
       due in both 2007 and 2008. (Final Order, COL 4)

       Respondent Keller violated Government Code, Section 572.023(b)(3) in failing to
       disclose a money market account, a note, 20 certificates of deposit in her personal
       financial statement due in 2007. (Final Order, COL 6)

       Respondent Keller violated Government Code, Section 572.023(b)(3) in failing to
       disclose one money market account, two notes and 22 certificates of deposit in her
       financial statement due in 2008. (Final Order, COL 6)

       Respondent Keller violated Government Code, Section 572.023(b)(4) in failing to
       disclose eight sources of income, totaling some $61,500.00, in interest, dividends,
       royalties and rents, in her personal financial statement due in 2007. (Final Order, COL 8)

       Respondent Keller violated Government Code, Section 572.023(b)(4) in failing to
       disclose eight sources of income, totaling some $121,500.00, in interest, dividends,
       royalties and rents, in her personal financial statement due in 2008. (Final Order, COL
       10)

       Respondent Keller violated Government Code, Section 572.023(b)(10) in failing to
       disclose five Board of Director or executive positions in her personal financial statement
       due in 2007. (Final Order, COL 12)
       Respondent Keller violated Government Code, Section 572.023(b)(10) in failing to
       disclose four Board of Director or executive positions in her personal financial statement
       due in 2008. (Final Order, COL 12)

       Respondent Keller violated Government Code, Section 572.023(b)(11) in failing to
       disclose two expenses reportedly accepted under the honorarium exception – totaling
       approximately $3,760.00 – in her personal financial statement due in 2007. (Final Order,
       COL 14)

       Respondent Keller violated Government Code, Section 572.023(b)(11) in failing to
       disclose two expenses reportedly accepted under the honorarium exception – totaling
       approximately $6,010.00 – in her personal financial statement due in 2008. (Final Order,
       COL 14)

Under Government Code, Section 572.034, a criminal offense for violation of Section 572.023 is
a class B misdemeanor.

The Final Order, in FOF 5, observed that because of the applicable two-year statute of
limitations for criminal offenses, under Article 12.02 of the Texas Code of Criminal Procedure,
the Commission did not consider allegations concerning Respondent’s personal financial
statements due in 2004, 2005, 2006. However, in 2006 Respondent Keller was re-elected to a
six-year term that expires in 2012. It is logical to assume that the misstatements that she made in
her 2007 and 2008 personal financial statements were also present in her 2005 and 2006 personal
financial statements—when when was running for office. The conduct and violations described
above, as found by the Texas Ethics Commission, violated Texas Disciplinary Rule of
Professional Conduct 8.02(b), which requires a “lawyer who is a candidate for judicial office” to
comply with the Texas Code of Judicial Conduct. Specifically, Respondent Keller violated
Canon 4I(2), which provides that “[a] judge shall file financial and other reports as required by
law.” Further, Respondent violated Canon 4D(3) of that Code, which provides that “[a] judge
shall be informed about the judge’s personal and fiduciary interests. . . .”

                                                II.

In connection with the private lawsuit, Marsha Richard v. Honorable Sharon Keller, et al., Civil
Action No. A-07-CA-946-LY, United States District Court, Western District of Texas, Austin
Division (hereinafter referred to as “Richard/Anderson Case”), Respondent Keller personally or
through the actions of others made false statements of material fact and/or testified falsely. By
such actions, Respondent Keller violated Texas Disciplinary Rules of Professional Conduct
3.03(a)(1) (prohibiting a lawyer from “knowingly . . . make[ing] a false statement of material
fact or law to a tribunal”); 8.04(a)(1) (prohibiting a lawyer from “violate[ing] these rules,
knowingly assist[ing] or induce[ing] another to do so, or do[ing] so through the acts of another,
whether or not such violation occurred in the course of a client-lawyer relationship”), and Rule
8.04(a)(3) (prohibiting a lawyer from engaging in conduct “involving dishonesty, fraud, deceit or
misrepresentation”).

In the Richard/Anderson Case Ms. Anderson alleged that Respondent Keller, acting outside the
scope of her judicial capacity and in a purely administrative function, prevented the attempted
filing of necessary legal papers in the Court of Criminal Appeals to stay the execution of Michael
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Richard. Judge Keller filed various motions to dismiss, arguing that she was acting in her
official capacity as a judge and therefore had judicial immunity from the private suit. Her
attorneys signed those motions, but obviously based upon information she provided. The trial
court in the Richard/Anderson Case accepted Respondent Keller’s argument, and dismissed Ms.
Anderson’s damages claims on judicial immunity. Later, the Texas Commission on Judicial
Conduct began its investigation against Respondent Keller, and the Honorable David A.
Berchelman, Jr. conducted an evidentiary hearing in mid-August 2009. At the hearing,
Respondent Keller testified under oath on August 18 and 19, 2009, that in the events at issue in
the case, she and others working at her direction were acting in an administrative capacity – not a
judicial capacity.

In short, she presented to the Texas Commission on Judicial Conduct exactly the opposite
position that she took in the Richard/Anderson Case. Respondent Keller either testified falsely,
or else made false, misleading statements to the court, the federal judge in the Richard/Anderson
Case, or induced her lawyers to do so. Under either scenario, she violated Rules 8.04(a)(1),
8.04(a)(3), 8.04(a)(4).     Pertinent documents demonstrating Respondent’s misconduct are
attached hereto as Exhibit “2” (“Memorandum Opinion and Order Granting Motion to
Dismiss”), signed September 29, 2008, and Exhibit “3” (“Plaintiff-Intervenor’s Motion for Relief
From Judgment and Memorandum in Support”).

                                               III.

On July 16, 2010, the State Commission on Judicial Conduct issued the Commission’s Findings,
Conclusions and Order of Public Warning (hereinafter “the Commission’s Findings and
Conclusions”). A copy of that document is attached hereto as Exhibit “4.” As reflected in those
findings and conclusions, Respondent Keller engaged in egregious misconduct with the most
serious possible consequences–the death of a man on a day when he should not have died.

The Commission’s Findings and Conclusions speak for themselves. They provide a riveting,
nightmarish chronicle of Respondent Keller’s established violations and callous disregard of
court procedures leading to the death of Michael Richard on September 25, 2007. If she had
acted properly, he would not have died that day. Respondent Keller prevented Mr. Richard from
obtaining a stay of execution. Consequently, he was the only person executed in the United
States between September 25, 2007 and April 2008. (See Commission FOF 86.)

Respondent Keller prevented Mr. Richard from obtaining access to court and a hearing, as
required by law. By those actions, Respondent Keller violated Texas Disciplinary Rules of
Professional Conduct 8.04(a)(3) (prohibiting engaging in conduct “involving dishonesty, fraud,
deceit or misrepresentation”), 8.04(a)(4) (prohibiting obstruction of justice), and 8.04(a)(5)
(prohibiting knowingly assisting a judicial officer in conduct that violates law).

Among the Commission’s most pertinent Findings and Conclusions:
     “On the date of a scheduled execution, the TCCA’s Execution-day Procedures mandated
     that every communication regarding the day’s scheduled execution be first referred to the
     assigned judge. All of the TCCA judges, including Judge Keller, knew that September
     25, 2007 was an execution date.” (FOF 19)



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“The Honorable Judge Cheryl Johnson was the assigned judge under the TCCA’s
Execution-day Procedures with respect to Richard’s execution on September 25, 2007.”
(FOF 21)

“Immediately after speaking with Fox, Acosta called Marty and told him of the telephone
call from Fox. According to Marty, Acosta said, ‘[t]hey were having trouble getting it
and want[ed] the Court to stay open late.’” (FOF 42)

“[Texas Court of Criminal Appeals General Counsel Edward] Marty did not then know
that the TCCA’s Execution-day Procedures required that all communications regarding
the scheduled execution must be first referred to the assigned judge.” (FOF 43)

“In response to Acosta’s call, Marty called Judge Keller at her home at about 4:45 p.m.
on September 25, 2007 looking for direction. Marty recalled telling Judge Keller that a
representative of Richard’s legal team had asked to keep the Court open past 5:00 p.m.
Marty thought that Judge Keller might say ‘yes,’ or at least something other than ‘no,’
but Judge Keller said ‘no.’ She then asked, ‘Why?’ Marty explained that they wanted to
file something, but they were not ready. ‘They were having trouble getting it,’ he said.
Judge Keller again responded ‘no.’ She said, ‘We close at 5:00 p.m.’” (FOF 44)

“Based on Judge Keller’s reply, Marty told Acosta (i) that the Presiding Judge said we
close at 5:00 p.m. and (ii) that the Court wasn’t going to accept something after 5:00
p.m.” (FOF 45)

“[Texas Court of Criminal Appeals Deputy Clerk Abel] Acosta knew that a judge was
assigned for the Richard execution day, but Acosta did not know of the Execution-day
Procedures or of any requirement that the communication be first directed to the assigned
judge. As of September 25, 2007, he had never received any training concerning the
Execution-day Procedures in his 17 years at the TCCA.” (FOF 50)

“If Acosta had been told by Marty or by Judge Keller to refer the communication
immediately to Judge Johnson, the assigned judge, he would have done so.” (FOF 51)

“Either in the 4:45 p.m. call or the 4:59 p.m. call, on September 25, 2007, Judge Keller
asked Marty why the clerk’s staff should be made to remain after hours for lawyers who
cannot get their work done on time.” (FOF 53)

“Fox called Acosta at approximately 5:56 p.m. on September 25, 2007 and told him that
she was headed to the Court to hand-deliver the filing on behalf of Richard. Acosta told
Fox, ‘Don’t bother. We’re closed.’ Fox also asked, either in the 4:48 p.m. or the 5:56
p.m. telephone call, whether electronic filing might be accepted, and she was told no.”
(FOF 55)

“If the assigned judge, Judge Johnson, had learned of the TDS communications on
September 25, 2007, she would have accepted the filing.” (FOF 58)

“At the time of her telephone conversations with Marty on September 25, 2007, Judge
Keller knew that she was not the assigned judge in charge of that evening’s scheduled
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execution, that a specific judge was the assigned judge, and that under the TCCA
Execution-day Procedures, all communications relating to the scheduled execution that
evening were required to be first referred to the assigned judge.” (FOF 68)

“On September 25, 2007, Judge Keller’s duties of office required her to abide by the
Execution-day Procedures.” (FOF 71)

“Judge Keller testified that, if she were asked the same questions she was asked on
September 25, 2007, and knowing the same things she knew on September 25, 2007, she
would do nothing differently today.” (FOF 72)

“Richard was executed by the State of Texas by lethal injection at 8:23 p.m. on
September 25, 2007.” (FOF 77)

“The next morning, September 26, 2007, Judge Keller and the other TCCA judges met
for a conference. At the end of the conference, several of the judges discussed their
surprise that Richard’s lawyers had not filed anything with the TCCA based on Baze.”
(FOF 79)

“During the September 26, 2007 conference, Judge Cochran, who was not yet aware of
Marty’s communications with Judge Keller the night before, passed a hypothetical in
which someone called the TCCA before 5:00 p.m., said they wanted to file something,
but could not get it there before 5:00 p.m. Judge Cochran’s position was that the TCCA
should allow the late filing. Other judges expressed agreement with that viewpoint.”
(FOF 80)

“Judge Keller was present for that discussion at the September 26, 2007 conference but
did not disclose to the other judges her communications with Marty the night before, nor
the fact that TDS had called the TCCA concerning requests to file after 5:00 p.m.” (FOF
81)

“Between the time that the United States Supreme Court granted certiorari in Baze on
September 25, 2007 and the time that the United States Supreme Court issued its opinion
in Baze in April 2008, Richard was the only person in the United States to be executed.”
(FOF 85)

“Journalists throughout Texas and the nation strongly criticized Judge Keller’s conduct in
the Richard case on September 25, 2007, as casting public discredit on Judge Keller, the
judiciary, and the administration of justice.” (FOF 86)

“As a Judge of the TCCA, Judge Keller was required to abide by the TCCA’s Execution-
day Procedures on September 25, 2007.” (FOF 90)

“Judge Keller intentionally did not refer Marty’s 4:45 p.m. communication regarding the
scheduled execution to the assigned judge.” (FOF 93)

“Judge Keller’s addressing and disposing of the September 25, 2007 communications as
described above failed to comply with the Execution-day Procedures.” (FOF 94)
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“Judge Keller’s addressing and disposing of the September 25, 2007 communications as
described above interfered with Richard’s access to court and right to a hearing as
required by law under TRAP 9.2(a).” (FOF 95)

“Judge Keller’s addressing and disposing of the September 25, 2007 communications as
described above was a failure to accord Richard access to court and right to a hearing as
required by law under TRAP 9.2(a).” (FOF 96)

“Marty was seeking direction from Judge Keller at 4:45 p.m. on September 25, 2007
regarding the request from representatives for the person scheduled to be executed that
evening to file with the TCCA after 5:00 p.m.” (FOF 99)

“On September 25, 2007, Judge Keller intentionally did not direct Marty to relay the 4:45
p.m. communication to the assigned judge.” (FOF 100)

“On September 25, 2007, Judge Keller intentionally did not direct Acosta to relay the
4:45 p.m. communication to the assigned judge.” (FOF 101)

“Judge Keller’s failure to direct Marty or Acosta to relay the 4:45 p.m. communication to
the assigned judge on September 25, 2007, as stated above, failed to require or assure that
staff subject to her direction and control complied with the Execution-day Procedures on
September 25, 2007.” (FOF 102)

“By failing to require or assure that staff subject to her direction and control complied
with the Execution-day Procedures on September 25, 2007, Judge Keller interfered with
Richard’s access to court and right to a hearing as required by law under TRAP 9.2(a).”
(FOF 103)

“By failing to require or assure that staff subject to her direction and control complied
with the Execution-day Procedures on September 25, 2007, Judge Keller failed to require
that staff subject to her direction and control accord Richard access to court and right to a
hearing as required by law under TRAP 9.2(a).” (FOF 104)

“Judge Keller’s first response of ‘no’ to Marty’s telephone call at 4:45 p.m. on September
25, 2007 was intentional conduct to close the clerk’s office promptly at 5:00 p.m. without
referring the matter to the assigned judge.” (FOF 108)

“Judge Keller’s call to Marty at 4:59 p.m. on September 25, 2007 was willful or
persistent conduct to assure closing of the clerk’s office promptly at 5:00 p.m. without
referring the matter to the assigned judge.” (FOF 114)

“Judge Keller’s call to Marty at 4:59 p.m. on September 25, 2007 was willful or
persistent conduct that the clerk’s office not accept a filing after 5:00 p.m. for an
execution that was scheduled at 6:00 p.m. without referring the matter to the assigned
judge.” (FOF 115)



                                          6
      “Judge Keller’s call to Marty at 4:59 p.m. on September 25, 2007 was willful or
      persistent conduct not to accommodate the request from representatives for the person
      scheduled to be executed that evening to make their filing at 5:00 p.m.” (FOF 116)

      “Judge Keller’s conduct on September 25, 2007, interfered with Richard’s and his
      counsel’s opportunity to be heard by the judge assigned to Richard’s execution under the
      TCCA’s Execution-day Procedures.” (FOF 117)

      “On September 25, 2007, Judge Keller gave instructions to Marty that had the effect of
      closing any further access by Richard’s lawyers to the TCCA concerning the effort to
      obtain a stay of Richard’s execution based on the legal issue for which the United States
      Supreme Court had granted certiorari that day.” (FOF 118)

      “The failure of the TCCA to consider and rule on Richard’s Stay of Execution on
      September 25, 2007 compromised Richard’s counsel’s efforts in seeking a stay of
      execution from the United States Supreme Court.” (FOF 119)

Conclusions Regarding Binding Obligations

      “Judge Keller’s failure to follow Texas Court of Criminal Appeals’ Execution-day
      Procedures on September 25, 2007, and failure to require or assure compliance by the
      Court of Criminal Appeals General Counsel and clerk staff with respect to Richard’s
      right to be heard, constitutes willful or persistent conduct that is clearly inconsistent with
      the proper performance of her duties as a judge of the Court of Criminal Appeals and as
      the Presiding Judge, in violation of the standards set forth in (i) Article 5, sec. 1-a(6)A of
      the Texas Constitution, (ii) section 33.001(b) of the Texas Government Code, and (iii)
      Canon 3B(8) of the Texas Code of Judicial Conduct.” (C 1)

      “Judge Keller’s failure to follow Texas Court of Criminal Appeals’ Execution-day
      Procedures on September 25, 2007, and failure to require or assure compliance by the
      Court of Criminal Appeals General Counsel and clerk staff with respect to Richard’s
      right to be heard, constitutes willful or persistent conduct that casts public discredit on the
      judiciary or the administration of justice, in violation of the standards set forth in (i)
      Article 5, sec. 1-a(6)A of the Texas Constitution, (ii) section 33.001(b) of the Texas
      Government Code, and (iii) Canon 3B(8) of the Texas Code of Judicial Conduct.” (C 2)

      “Judge Keller’s conduct on September 25, 2007, did not accord 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 a judge of the Court of Criminal Appeals and as the Presiding Judge, in
      violation of the standards as set forth in (i) Article 5, sec. 1-a(6)A of the Texas
      Constitution, (ii) section 33.001(b) of the Texas Government Code, and (iii) Canon 3B(8)
      of the Texas Code of Judicial Conduct.” (C 3)

      “Judge Keller’s conduct on September 25, 2007, did not accord Richard access to open
      courts or the right to be heard according to law. Judge Keller’s conduct constitutes
      willful or persistent conduct that casts public discredit on the judiciary or the
      administration of justice, in violation of the standards set forth in (i) Article 5, sec. 1-
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       a(6)A of the Texas Constitution, (iii) section 33.001(b) of the Texas Government Code,
       and (iii) Canon 3B(8) of the Texas Code of Judicial Conduct.” (C 4)

                                            IV.

The acts and events cited above raise a substantial question as to Sharon Keller’s honesty,
trustworthiness, and fitness as a lawyer.




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