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BAD DAY AT BLACK ROCK FOR JUDGES IN SOUTH TEXAS
Judges Reap What They Sowed
By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
There may be no Hero to the rescue in this dark drama hanging over the state and federal judiciaries in South Texas. The clouds in the horizon are as ominous as those that preceded Hurricane Ike last September. A sitting federal judge, the Honorable Samuel Kent who formerly oversaw maritime law cases for the past seventeen years in Galveston, was facing trial in a Houston federal district court on federal sex crime charges. The local media was reporting that attorneys who regularly practiced before Judge Kent were following the case with utter amazement and, we suspect, a near morbid fascination.
According to media reports, Judge Kent dominated proceedings before him with a harsh gavel and was known for what the Houston Chronicle called “biting written opinions.” Life indeed has a peculiar knack for turning things topsy-turvy. So it was with Judge Kent who found himself facing trial on five sexual abuse charges involving two former employees and one charge of lying to a Fifth Circuit Court of Appeals judicial commission assigned to investigate the sexual abuse allegations.
Represented by the preeminent Houston criminal defense attorney Dick DeGuerin, Judge Kent had been vociferous in his protestations of innocence during pre-trial court proceedings. Through a number of pre-trial pleadings, DeGuerin indicated a series of seemingly conflicting defenses: 1) the employees consented, 2) the judge suffers from erectile dysfunction, and 3) the judge is so consumed by such a powerful ego that he may not have been able to discern if the employees actually consented to alleged sexual advances he made towards them.
A recent Chronicle article about the Kent case quoted Arthur Hellman, a University of Pittsburgh expert on federal judicial discipline: “This is unprecedented,” Hellman said, pointing out that a few other federal judges have faced criminal trials involving “money and corruption” issues but none for sex offenses.
“I think Congress, the Judiciary Committee, will be watching because if there is a criminal conviction they almost certainly have to consider the possibility of impeachment.”
But impeachment proceedings in the Kent case were avoided when the judge on the day his trial was scheduled to commence, February 23, 2009, opted to take a “plea deal.” The deal called for Kent to plead guilty to one count of obstruction of justice and resign from the bench. The guilty plea exposes him to a term of up to 20 years in prison. The Government is asking for a 3-year prison term which, in all likelihood, will be the sentence range the U.S. Sentencing Guidelines will recommend. The sentencing judge, however, does not have to accept either recommendation. He can depart downward, impose the sentence he deems appropriate, and under recent U.S. Supreme Court authority, it would be exceedingly difficult tor the Fifth Circuit on appeal to reverse any downward departure. Sentencing is initially set for May 11, 2009.
While Judge Kent escaped possible impeachment, the Chief Judge of the Texas Court of Criminal Appeals, Sharon Keller, may not be so lucky. She also finds her judicial career on the precipice of crashing on the rocks below. Judge Keller’s case has nothing to do with sexual impropriety, but, like Kent, it has a lot to do with her attitude and behavior from the bench. Houston Chronicle columnist Rick Casey captured Keller’s judicial attitude in a recent a column (Feb. 20, 2009):
“This is a woman who voted to deny freedom to a man imprisoned for rape even after DNA evidence showed the sperm belonged to someone else. Her argument: He might have worn a condom.
“Later evidence provided proof of his innocence even she couldn’t explain away.
“This is a woman who, with her colleagues, appointed grossly incompetent lawyers to handle appeals for indigent inmates and then said, ‘Sorry, your client had his chance,’ when skilled lawyers later came in to try to clean up the messes.
“This is a woman who, a week before Christmas in 2002, voted to deny freedom to a man who under pressure had accepted a plea bargain for a crime that new evidence showed (‘unquestionably,’ according to the trial judge who heard the evidence) he did not commit.”
Thus, it really did not come as a surprise to the many attorneys who have practiced before this former prosecutor that she did what she did in the Michael Wayne Richard case on September 25, 2007. Richard was scheduled to be put to death at approximately 6:00 p.m. that day. Earlier that day at approximately 9:00 a.m. the U.S. Supreme Court granted certiorari in two Kentucky death cases challenging the constitutionality of the three-drug protocol utilized by that state—and Texas as well—in carrying out lethal injections.
Richard’s attorneys began a frantic last-minute legal effort to save their client’s life based on that Supreme Court ruling. It could legitimately be debated about the need for the 100-plus page brief the attorneys began preparing—of which they would need eleven copies to file with the Court of Criminal Appeals—but they did. By late afternoon the computers being utilized to prepare the mammoth brief crashed, setting the stage for a series of events that could lead to Keller’s impeachment from the appeals court.
All the judges on the Court of Criminal Appeals, including Keller, were aware that Richard faced an impending execution on September 25. Judge Cheryl Johnson was designated as the judge to hear the anticipated stay of execution request by Richard’s attorneys. The court’s general counsel, Edward Marty, and several other judges also agreed to remain after hours at the court until word of the actual execution was received.
According to Special Counsel for the State Commission of Judicial Conduct, John J. McKetta, III, Marty informed all the appeals court judges, including Keller, via e-mail that “The Supreme Court has just granted cert on two Kentucky cases in which lethal injection was claimed to be cruel and unusual … I do not know if Michael Wayne Richard will try to stay his execution for tonight over this issue or in what court.”
Later that afternoon Marty began drafting a proposed order for the Court, anticipating that Richard’s attorney would seek a stay based on the Supreme Court ruling. The Harris County District Attorney’s Office confirmed to Marty shortly afterwards that Richard’s attorneys indeed planned to “file a writ of prohibition” based on the Supreme Court action, according to McKetta.
At approximately 4:45 p.m., McKetta said, Richard’s attorney(s) called the Court of Criminal Appeals’ clerk’s office and requested permission to file Richard’s stay application a “few minutes” after the court’s 5:00 p.m. closing and official deadline filing time. Deputy Clerk Abel Acosta informed Richard’s attorney(s) about the 5:00 p.m. closing time but stated he would contact Marty, which he did.
Marty then notified Judge Keller at her home about the request for a late filing by Richard’s attorney(s) and asked if the clerk’s office should stay open past 5:00 p.m. Judge Keller replied “No” before asking “why?”
“They [the attorneys] wanted to file something, but they were not ready,” Marty explained.
Keller once again instructed Marty that the clerk’s office could not remain open past 5:00 p.m. Marty passed this directive on to the clerk’s office. The clerk’s office called the Texas Defender Service—the anti-death penalty group representing Richard—at 4:48 and informed them that nothing would be accepted for filing in the case past 5:00 p.m. A TDS paralegal suggested that she would bring the filing to the court and leave it with a security guard. The clerk’s office advised that this would serve no purpose since the documents would not be filed. Shortly thereafter the TDS called the clerk’s office back and asked if they could email or fax the documents to the court. Mr. Acosta informed them that a decision had already been made that the clerk’s office was not to accept any filings by past 5:00 p.m. At approximately 5:00 p.m. Judge Keller called Marty from her home and asked if Richard’s attorneys had filed anything with the court. He informed the judge that they had not. Finally, shortly before 6:00 p.m. the TDS called the clerk’s office saying they were headed to the clerk’s office to hand-deliver the documents. McKetta said that “Mr. Acosta told TDS not to bother because no one was there to accept the filing.”
At approximately 8:20 p.m. Michael Wayne Richard was executed by the State of Texas. Two days later the U.S. Supreme Court stayed the September 27 scheduled execution of Carlton Turner that was to be carried out by the State of Texas. Five days after the Supreme Court stayed the execution of Carlton Turner the Texas Court of Criminal Appeals stayed the execution of Heriberto Chi based on the “the exact claim that Mr. Richard was not able to present to the CCA on September 25, 2007,” according to Mr. McKetta.
In the wake of the Richard execution, 300 attorneys filed complaints with the State Commission on Judicial Conduct requesting that Judge Keller be removed from office. On February 19, 2009, the Commission responded by filing the below listed five charges of judicial misconduct against Keller
Judge Keller’s willful and persistent failure to follow CCA’s Execution-day Procedures on September 25, 2007, constitutes willful or persistent conduct that is clearly inconsistent with the proper performance of her duties as Presiding Judge …
Judge Keller’s willful and persistent failure to follow CCA’s Execution-day Procedures on September 25, 2007, constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice …
Judge Keller’s conduct on September 25, 2007, did not accord Mr. 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 Presiding Judge …
Judge Keller’s conduct on September 25, 2007, did not accord Mr. Richard access to open courts or the right to be heard according to law. Keller’s conduct constitutes willful or persistent conduct that casts public discredit on the judiciary or the administration of justice …
Judge Keller’s willful and persistent failure to follow CCA’s Execution-day Procedures on September 25, 2007, constitutes incompetence in the performance of duties of office …
See: Inquiry Concerning a Judge, No. 96, Notice of Formal Proceedings, State Commission on Judicial Conduct (Feb. 19, 2009) [internal citations and rules omitted].
Judge Keller is represented by attorney Chip Babcock. Chronicle columnist Clay Robison reported recently (Feb. 23, 2009) that the judge may be forced to pick up the tab for her own legal expenses. Public officeholders, like Keller, can use political funds to pay legal fees when confronted with criminal charges or civil liabilities. But Robison reported that last month Keller informed the Texas Ethics Commission that she had no money in her political account, and since state law prohibits her from raising money until 2011 for any re-election bid in 2012, she appears to be a day late and a dollar short on paying her legal defense fees with political donations.
Judge Kent may also face some financial difficulties. It can be assumed, DeGuerin’s services did not come cheap. The judge is still eligible for his lifetime retirement, but being just 59, he is not currently eligible for retirement benefits. He can seek “early” retirement benefits with proof of a permanent disability. The judge suffers from diabetes and has been under psychiatric care for the past three years. These physical and psychological conditions may open the door to that lifetime government check.
The old biblical adage “you reap what you sow” seems fitting for two judges who ascended to the judiciary based on their “law-and-order” credentials but who, in the final analysis, appear to have had little respect for either.
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
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John T. Floyd Law Firm
3730 Kirby Drive # 750, Houston
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John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
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I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
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Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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Im impressed. This guy was polite and professional and most important...he listened.
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Good experience and very good lawyer
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
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One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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He was very truthful and honest with us very great man I would recommend him and we would use him again
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Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Very informative
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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