Killer Keller and the Twinkie Defense

It’s not easy to mount a criminal defense.  And it’s not easy to be Texas Court of Criminal Appeals Judge Sharon Keller, excoriated across the country for slamming the courthouse doors shut to make sure an execution proceeds.  As her trial is about to begin, her defense attorney has decided to announce his strategy in advance


Judge Sharon Keller, facing potentially career-ending charges that she improperly closed her court to a death row appeal, will argue that defense lawyers fabricated — or at least exaggerated — computer problems the day Texas executed Michael Richard.

Keller’s new accusation is an attack on the credibility of Richard’s lawyers, three of whom are expected to be called as witnesses when her special trial convenes Aug. 17 in San Antonio.

The attack, a recent addition to Keller’s defense strategy, also seeks to undermine the narrative that has emerged against the judge: that she refused a reasonable request to keep the Texas Court of Criminal Appeals open past 5 p.m., penalizing Richard for events outside his control — computer breakdowns experienced by his lawyers.

“Judge Keller’s position will be that there was no computer problem,” said her lawyer, Chip Babcock. “There will be testimony that (Richard’s lawyers) — maybe — had e-mail problems for a few minutes in the afternoon.”

Now I wouldn’t want to suggest that I know better than Chip (or Muffy, for that matter), but I don’t think this is much of a strategy.  The best I can make out of the nexus between the truth of the defense lawyer’s computer problems and Keller’s door slamming is the “no harm, no foul” rule.  Essentially, she’s saying, “Yeah, so I shut the doors at 5 to make sure Richard fried.  Big deal, it’s not like they deserved a chance since they were full of it anyway.” 

This seems awfully weak to me.  It doesn’t excuse Keller’s conduct, but merely argues that Richard’s lawyers at Texas Defender Services were wrong as well.  It’s not like she’s claiming she knew they were full of it about the computer problems when she ordered the doors be closed, and made a decision based upon their purported deceptive claims to deny their application via the closed door method.

Of course, it bears noting that she can’t offer any real support for her claim either.  Computer problems come in all sorts of flavors, as anyone who has ever pounded their fists on an uncooperative keyboard knows.  There is always the presumption of Irregularity, a special rule for defense lawyers where judges presume that anything they say is suspect, designed to deceive the court and hence deemed incredible unless and until proven otherwise, usually by scientific proof or papal decree (the latter be much harder to obtain than the former).  This is contrasted with the presumption as applied to youthful prosecutors, who have never been known to say anything inaccurate, no less deceitful.

Now I’m not the first to arrive at the conclusion that Chip’s defense sucks.

“The issue of whether there were or were not computer problems is completely irrelevant to the charges made against Judge Keller,” Manne said. Richard’s briefs “could’ve been late because of computer problems, which is in fact the case, or 101 other problems. But did she act properly when asked? That’s the issue at trial.”

But since Manne is from Texas Defender Services, his analysis must be presumed wrong.  Accordingly, the Chipster responds:


Babcock said the computer issue matters because the “myth of the computer problem” skewed media coverage of the Richard case. “A lot of the coverage spins out a story that isn’t true,” he said.
This may surprise a lot of people, but the real issue in Killer Keller’s trial isn’t her conduct as being a forceful conduit for the fine people of Texas who expect, no demand, regular executions.  It’s a PR problem.  If only those darn reporters would stick to the real story, that criminal defense lawyers are lying scum and Sharon Keller put a stop to their attempt to lie their way into scuttling a perfectly good execution.

But don’t weep for the trauma Sharon Keller is going through at the hands of scoundrel lawyers and the liberal MSM.  If things go south for her and she’s forced off the bench in disgrace, there’s always the possibility of her getting a gig on cable TV doing small claims cases.  I bet there’s even a role for Chip in there somewhere.

8 comments on “Killer Keller and the Twinkie Defense

  1. Jdog

    Wow. It’s basically the Chewbacca Defense. Even if she can prove that Chewbacca is a Wookie (he’s not; he’s a guy in a Wookie suit) it’s irrelevant.

  2. Jeff Gamso

    Never misunderestimate (as, Shrub, her fellow Texan might say) the power of a vicious hypocrite to spin evidence. Sure the defense is irrelevant. But this is the same woman who, as Bennett pointed out, argued in her answer to the charges that a provision of the Texas Constitution violated the Texas Constitution.

    Of course, she’s also the one who said, in the context of Roy Criner’s case where the DNA exonerated him, that finality trumps innocence. As she explained to Frontlines, “At best, he established that he might be innocent. We can’t give new trials to everyone who establishes, after conviction, that they might be innocent.”

    Eventually, Shrub pardoned Criner. And when even Shrub can find sufficient evidence of innocence, you know the case had to be strong.

  3. Paul B. Kennedy

    Here’s an idea, Sharon. Let’s just throw some stuff up against the wall and see if it sticks. If that doesn’t work, then we’ll just argue that he was a murderer, so there.

  4. SHG

    Are you saying that a judge of the highest criminal appellate court in all of the Great Republic of Texas is, oh, disingenuous?

  5. Doug Weathers

    Since the Judge has admitted to the media that she is “prosecution oriented” I don’t know why she would stoop to defend herself from an allegation. Perhaps they will determine that she “waived” her right to defend herself or any error by her accusers was “harmless error”. I know she is very familiar with these concepts when she is on the bench.

  6. SHG

    There would be a certain poetry in a harmless error analysis, but I bet it would feel much better if she gets slam dunked.

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