Strong Convictions

Hard-line leaders such as loopy Stephen Mansfield have taken their agenda to the Court of Criminal Appeals, where legal precedents--not prosecutions--get overturned

Basically she faulted the court for doing exactly what criminal-defense lawyers grouse she is doing now in favor of the state. The irony is not lost on her.

The difference is that "I'm right and they aren't," she says with a laugh. "We're getting into mainstream jurisprudence now. What Texas did before was the odd thing." In defending his opinion in the Jones appeal, Mansfield argues that the ruling put Texas law in line with federal law and that in most other states.

Keller's campaign in 1994 left little doubt as to what she wanted to accomplish as a judge. An ad showed hands behind jail bars and proudly proclaimed that person wouldn't vote for Sharon Keller, but you could. Yet she says hers was not a pro-prosecutor agenda.

John Anderson
Attorney Richard Anderson says defendants might as well abandon hope on appeals to the court.
Attorney Richard Anderson says defendants might as well abandon hope on appeals to the court.

"I wanted to stop these free-floating decisions of the court that really had nothing to do with the law," she says.

Keller plans to run next year to succeed McCormick as presiding judge, a mostly administrative chief justice position. Another member of the court, former Dallas County district court judge Tom Price, plans to challenge Keller. Price, who gets criticized for spending most of his time in Dallas instead of Austin, did not respond to requests by the Houston Press for an interview.

"I don't care if Judge Price announces his decisions from a trailer park outside of Boerne, he is someone who understands the concept of fairness in the context of criminal appeals," defense attorney Wice says. "I don't think Judge Keller understands both sides. She views cases only in terms of victims."

Keller expects her reputation as a prosecution-friendly judge to be debated during her campaign, and she's ready. She reels off a list of cases in which she has ruled in favor of the defense. She also has conducted her own research and found that in September and October 21.8 percent of the court's rulings sided with the defense, more than double the 10 percent that is considered par.

"This chant that the court is agenda-driven for the state, the facts don't match it," she says. "We rule on each case individually, and we don't decide ahead of time who is going to win."

Keller also is likely to face campaign questions about her corporation leasing property to a particularly skanky Dallas topless bar called The Doll's House.

The link between Keller and the strip joint came to light when attorney S. Rafe Foreman filed a recusal motion with the court last month. Foreman had represented a young man injured in a car wreck caused by a drunk driver. The bar, at 6509 East Northwest Highway, was accused of continuing to serve the motorist alcohol after he was already intoxicated. Foreman's lawsuit sought to hold Keller's corporation, as landlord, liable under Texas's dram shop law.

The lawsuit settled this summer after Keller's corporation was dropped from the case. Foreman's recusal motion came in a later, unrelated criminal case.

Keller says she agreed to recuse herself because she wasn't assigned to hear Foreman's criminal case, but she questions the motivation behind the motion. "I think it's dirty politics," she says.

Foreman says the only reason he asked Keller to remove herself from the defendant's appeal was to protect his client. "I don't want a judge who I sued to decide whether my client gets out of prison," he says.

Keller says she owns a lot of real estate (county property records show differently) and cannot say for certain whether her corporation still owns the Northwest Highway property or whether she ever was aware of the tenant. She shakes off the irony that a corporation owned by one of the court's most rigid judges leased property to one of Dallas's seamiest titty bars.

"I don't think it's necessarily incongruous for a judge to own property that legal business is conducted on," Keller says. "I think someone is trying to make me look bad over something that shouldn't make me look bad."

Even when the prosecution doesn't ask for a favor from the Court of Criminal Appeals, judges go out of their way to give one.

Convicted killer James Howard McJunkins agreed under a plea bargain to have his murder and aggravated robbery sentences "stacked," to run consecutively. He struck the deal even though it was his statutory right to serve them concurrently since they were part of the same crime spree.

McJunkins later petitioned the court for concurrent prison terms. The state agreed to that as part of the appeal, rather than risk having both sentences thrown out and the case retried.

But that wasn't good enough for Judge Paul Womack. He ruled that a defendant legally could waive his statutory right to have sentences run concurrently, even though the state never specifically asked the court to rule on that question.

Three judges opposed Womack's 1997 ruling -- Meyers, Baird and Morris Overstreet, who did not run for re-election to the court in 1998.

"In concocting an issue out of thin air which the State does not even raise Š the majority's opinion is an inappropriate exhibition of judicial activism," Overstreet wrote. He and Womack both declined requests for an interview.

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