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Anti-Empathy, Anti-Judge Goes on Trial

The word "empathy" was everywhere during the just-completed Supreme Court confirmation process for Judge Sonia Sotomayor. President Obama embraced it to help describe the sort of justice he was seeking on the Court. Conservatives derided it as anathema to the concept of dispassionate justice.

But neither side adequately explained the concept of "empathy" in judging nor offered specific examples of its use or abuse in court.

Enter Sharon Keller. She is Chief Justice of the Texas Court of Criminal Appeals and White House tribunes and Senate Judiciary Committee Democrats should have repeated her awful story like a mantra during the Sotomayor fight. Justice Keller is a living, breathing, cold-hearted example of what happens when judges act in the absence of empathy or compassion or real-life common sense. She is the Anti-Judge and her inhumane conduct helps prove just how unjust our system can be when judges do not employ at least some degree of empathy.

In 2007, Justice Keller—known locally to some as "Justice Killer"—quite literally closed the courthouse doors on a man who was facing imminent execution. She told his lawyers that she was going home and would not accept an after-hours appeal brief even though the brief clearly had merit. "We close at 5," Justice Keller coldly told a court official that afternoon-- and then without an apparent remorse or regret she went home to meet a repairman at her house.

Bad enough, right? But it gets worse. Judge Keller did not tell her colleagues on the appeals court that lawyers for Michael Richard were attempting to get a stay of his execution. After-hours filings happen all the time in death penalty cases—even Supreme Court Justices and their clerks often stay late. And the appeal for Richard was not tardy because of the laziness of the lawyers—it was a little tardy because Richard's attorneys were scrambling to apply a brand-new, last-minute Supreme Court ruling on lethal injection procedures (in another case) that gave them new grounds for an appeal.

None of this mattered in the end for Richard. Because Keller blocked his appeal, because she hid the appeal from her colleagues, because she put bureaucratic form over legal substance, Richard was executed before all of his legal issues had been resolved. Even in Texas, which has an atrocious record of protecting the rights of condemned prisoners, and even for a guy like Richard who was found guilty twice, this is beyond reason. And that explains why Keller will go on trial herself today for judicial misconduct.

A mini-trial is slated to begin today in San Antonio. The State wants to know whether Keller breached her duties as a judge and, if so, whether she should lose her job or simply be sanctioned or admonished.

The factual findings of this trial—which ought to last a few days—will be sent to the State Commission on Judicial Conduct. Keller is unrepentant. She blames defense lawyers for not getting the brief to her in time and she says that Richard got plenty of due process over the years. The judge's accusers say it was unconscionable for her not to stay an extra 20 minutes late to accept an appeal she knew was on its way. They say this is just the latest example of an unacceptable level of hostility toward capital defendants.

Texas has an opportunity through this process to take a stand against decades of heartless, unfair treatment of criminal defendants. There is simply no place in the criminal justice system for a judge who could ever think it was appropriate to close off an appeal like Richard's because it was going to be 20 minutes late.

We like to think that our judges should be automatons, completely devoid of human empathy and compassion, but the truth is we need them in the end to be just decent human beings. That's why even if you won't admit it to yourself you'd rather have Justice Sotomayor as your judge than Justice Keller.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.
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