Even though the decision on Texas Court of Criminal Appeals Chief Judge Sharon Keller is less than a day old, it has already been roundly excoriated across the blawgosphere.  See the posts by Jamie Spencer, Grits for Breakfast, Robert Guest and Jeff Gamso.  Each of them have brutally savaged the irrational conclusion that Killer Keller’s conduct was “not exemplary,” yet unworthy of sanction. 

In his decision, the special master, Judge David Berchelmann Jr., contrasted the purported culpability of Keller and the lawyers for now-dead Michael Wayne Richard, the Texas Defender Services with David Dow at lead, and found Keller’s wrong to be the lesser.  The lawyers, he concluded, had alternatives.  Keller’s closing of the courthouse doors, therefore, pales.

My fellow blawgers have done an exceptional job of parsing the decision and noting its shortcomings, of which there are many.  But that assumes that the decision is a legitimate expression of fact and law.  I don’t believe it is.  Rather, I see it as Judge Berchelmann’s attempt to artfully craft a writing that will say just enough bad stuff about Killer Keller to pacify her detractors, while compelling no sanctions against her.  Make this problem go away.  Make everybody happy, or at least no one too unhappy, but put an end to it.

Judge Keller’s silence on several occasions conflicts with the ideal that courts should foster open communication among court staff and litigants. But Judge Keller’s omission did not cause the TDS to be late in its filing, to forget the other available avenues, or to fail to have any of its experienced lawyers contact the TCCA. She did not violate any written or unwritten rules or laws. Of course, that does not absolve her of the responsibility to ensure that the courts remain fair and just. Her conduct, however, does not warrant removal from office, or even further reprimand beyond the public humiliation she has surely suffered.

This paragraph, ultimately concluding that the “public humiliation” is punishment enough, is classic.  Something for everyone.  The look and feel of a stern rebuke, peppered with some trite uplifting phrases that simultaneously trivialize Keller’s failure to meet the “ideal”, ending with the suggestion that Keller has indeed suffered for her wrongs.  That should shut ’em up.

I know this trick.  I’ve used it myself on occasion, though I’ve done a better job of it than Berchelmann and had a less discerning audience than him.  Give everybody a little something and then cover your tracks and get back to the way things were.  Nobody is thrilled, but everybody gets a little something.

Everybody but Michael Wayne Richard.  He’s dead already.