In Texas’ High Criminal Court Races, the Stakes Are Life or Death

The Texas Department of Criminal Justice keeps an online log of everyone the state has executed since the 1980s. Each person has multiple numbers associated with them: their age, their prison identification number, and one that notes the cumulative milestone their execution represents for the state. Since 1982, 591 Texans have been executed. Come Thursday October 17, that number will tick up by one if the scheduled killing of Robert Roberson—a man who maintains his innocence in the death of his infant daughter—proceeds. 

Roberson’s appeals have repeatedly been shot down by the Court of Criminal Appeals (CCA), despite bipartisan calls for his execution to be halted and the evidence reexamined in light of new scientific understandings of the “shaken baby syndrome” diagnosis—which has changed significantly since Roberson was convicted in 2003. The CCA declined to reconsider its stance on Roberson’s case last week, a decision that Republican state Representative Jeff Leach called “terribly unjust and unconscionable.”

Each and every person executed by the state has first had their fate weighed by the elected judges on the CCA, which decides final matters in Texas of criminal jurisprudence.

Under years of total GOP control, much of that work has centered on keeping the gears of the state’s capital punishment machine turning. The nine-judge panel automatically reviews every new death sentence handed down in Texas and considers ongoing capital and non-capital criminal appeals. Under the leadership of the Presiding Judge Sharon Keller, who has held that position since 2000, the court has long rejected the appeals of Texans on death row, only rarely overturning sentences or ordering new trials.

But the decisions haven’t always been unanimous—and Keller, along with two Republican incumbents, are now on their way out. The three new replacements, who’ll be elected this November,  could swing the court in a new direction—or entrench it more firmly on the side of the prosecution in death penalty cases.

For years, the all-Republican CCA has largely been a ship on a steady course, following the navigational beacon of bog-standard judicial conservatism with little notice from the public. Then came a rogue wave in the form of Texas Attorney General Ken Paxton.  

In 2021, the CCA issued an 8-1 decision ruling that the attorney general doesn’t have the authority to prosecute election code violations like voter fraud without the permission of county  prosecutors. This didn’t sit well with Paxton, who has increasingly made so-called election integrity, fueled by unsubstantiated claims of stolen elections and rampant fraud, a cornerstone of his tenure.

Paxton wildly suggested that the Republican judges had secretly been installed by George Soros. 

As part of what has been dubbed Paxton’s “revenge tour” following political slights like his 2023 impeachment and the CCA’s ruling, Paxton targeted the three judges who were up for re-election this year: longtime Presiding Judge Sharon Keller, Barbara Parker Hervey, and Michelle Slaughter. 

Having riled up the hardcore base, Paxton enlisted challengers—David Schenck, Gina Parker, and Lee Finley—to take out the incumbents in the March GOP primary. Governor Greg Abbott and Lieutenant Governor Dan Patrick also joined in their vocal opposition to the 2021 ruling. Ahead of this year’s primary, Donald Trump Jr. tweeted, “Texas is under attack by activist judges like Sharon Keller, Michelle Slaughter, and Barbara Hervey. … Conservative Texans must unite and reject these judges.” 

Each of the challengers received significant campaign funding from Paxton’s own donors. They were also backed by a PAC called Texans for Responsible Judges that was bankrolled with about $350,000 in cash from Paxton-allied donors like right-wing oil billionaire Dan Wilks. All three successfully swept the incumbents in the March primary. 

The Republican replacements were all relatively unknown before the primary, and some of their resumes are not what experts would expect from judicial candidates for the state’s highest court. David Schenck is the only one of the GOP’s CCA candidates with judicial experience, having served on the Fifth District Court of Appeals from 2015 through 2022, when he unsuccessfully ran for a place on the Texas Supreme Court. He’s also the only one of the Republican picks to get endorsements from the Dallas Morning News and the Houston Chronicle.

The other two nominees for the state’s criminal court of last resort are less credentialed. Gina Parker is a Waco criminal and civil lawyer who also owns a dental company and is a longtime GOP activist. She was also an assistant prosecutor for the county DA way back in 1991. 

And Lee Finley has reportedly mostly handled misdemeanor cases as a lawyer in Collin County, where he has mutual friends with Paxton. He ran and lost the GOP primary for the (non-judicial) post of county judge in 2022 

Following the primary upsets, the Houston Chronicle editorial board wrote that “being conservative wasn’t the issue” for the ousted judges. “They were plenty conservative,” the board wrote. “They just weren’t crooked.” 

The Observer spoke to several current and former judges, attorneys, and legal experts who said they were concerned about the effects of Paxton’s interference in the elections to a court that has purview over his own domain. “When a law enforcement agency challenges the judiciary like this, civil liberties and the rights of the accused are rarely the winners,” Jeremy Rosenthal, founding partner of a McKinney-based criminal defense law firm, told the Observer.

Scott Henson, a longtime criminal justice reform advocate who runs the blog Grits for Breakfast, called the criminal court’s 2021 decision  that sent the AG on the warpath “a completely noncontroversial interpretation of Texas law for every attorney in the state except [Ken Paxton].” 

“That’s why they were only able to recruit people who really don’t know anything about criminal law, because anyone who knows anything about criminal law would not be willing to stake their credibility on these batshit crazy decisions,” he said.

Retired Republican CCA Judge Elsa Alcala told the Observer that Paxton’s involvement in the judicial race sends a “dangerous message.”

“That message is, ‘Do what I want you to, or I will oust you no matter what your voting history is as a conservative Republican.’” 

Alcala was appointed to the CCA by Governor Rick Perry in 2011 where—she won a full term as a Republican in the 2012 election—she served for seven years. During her term, she was a frequent dissenter on death penalty cases—a lonely position on an otherwise pro-prosecution court, as 60 people were executed by the State of Texas while she was on the bench. She said she’s happy to see three hyper-conservative incumbents lose their seats but hopes they’re replaced by Democrat candidates, rather than “three unknown conservative jurists.” 

Vying for Keller’s seat as presiding judge are Republican David Schenck and Democrat Holly Taylor. 

Schenck, a 57-year-old Dallas resident, served under Greg Abbott as deputy attorney general for legal counsel before then-Governor Perry appointed him to the court of appeals in 2015, where he served through 2022. Schenck has the support of Donald Trump, Abbott, and Paxton and his wife, state Senator Angela Paxton. He told the Fort Worth Star Telegram in October that he hoped to “reduce activism and the appearance of cronyism where it exists.” Public trust and judicial ethics have been a big talking point for Schenck, who has sat on the Texas Commission on Judicial Conduct, the body with the power to investigate and discipline elected judges, since 2020.  He hasn’t publicly spoken much about the death penalty, except to argue that capital defendants deserve lawyers with clean records. 

Taylor was once a staff attorney for the CCA before joining the office of Travis County District Attorney Jose Garza, where she’s worked in the Conviction Integrity Unit and determined in at least one case that the DA couldn’t stand by a past death penalty conviction due to shoddy forensic evidence.

Schenck and Taylor have both stated that CCA judges should not appear to be activists or advocates for any particular partisan policy or judicial stance, including on the death penalty. 

“It is absolutely critical right now that we not express opinions as to how we would vote on issues that might come before the court,” Taylor told the Observer. “We want judges that are going to be independent, that are going to be neutral and impartial, and consider each case based on the facts presented in that case, the Constitution, and the applicable law.”

The race for Place 7 on the bench is between Republican Gina Parker and Democrat Nancy Mulder. 

Parker has worked as an attorney in McLennan County—which hasn’t had a death penalty case in decades—since 1991, according to her LinkedIn. Parker ran for a seat on the CCA in 2020 but lost the Republican primary to Judge Bert Richardson. 

She formerly served as the treasurer for the Republican Party of Texas. In 1999, the Texas Ethics Commission filed a complaint alleging that Parker violated state campaign finance law after she failed to properly disclose large contributions made by a GOP PAC for which she was treasurer. The complaint resulted in a $3,000 civil penalty; Parker agreed to a resolution but disputed the statute’s constitutional authority. This year, she publicly condemned the CCA judges behind the 2021 ruling against the AG, saying the decision “will allow election fraud to continue to run rampant.” 

She is also the CEO of a dental molding supply company called Dental Creations, Ltd. The company’s website acknowledges the business venture helps fund her Christian ministry and missionary work. She’s recently published two Christian books.

Parker’s opponent Nancy Mulder has practiced criminal law in North Texas for three decades, working as a prosecutor, defense attorney, and ultimately judge presiding over a felony criminal court in Dallas. “I’ve been through death penalty cases on both sides,” she told the Observer. 

She said she’s concerned with how often the CCA has used “creative legal logic” to affirm convictions, citing a case in which the court found a lawyer who had slept through parts of the trial still counted as effective counsel.

“They tell you not to drink stagnant water, and that’s because it grows bacteria,” Mulder said. “I think the stagnation of the court—having been Republican for so long, has made it even more Republican.”

Lee Finley won his primary against Michelle Slaughter by the slimmest margin of the three, with about 54 percent of the vote. Now he’ll face Democrat Chika Anyiam.

Finley lists criminal law as one of his practice areas in Collin County, along with various arms of corporate litigation. According to Bloomberg, in the more than 20 years Finley has practiced law, he’s only handled one (quickly withdrawn) criminal appeal. His opponent, Judge Chika Anyiam, has led a Dallas County criminal district court since 2018. She’s focused on criminal law for more than 20  years. 

Finley has criticized the CCA’s unwillingness to grant appeals in death penalty cases, saying the court “has denied justice to Texans, while bringing disrepute to the Texas Criminal Justice system.” This January, however, he referred to the death penalty as “the ultimate example” of criminal deterrence. 

Jay Brandon, a former Bexar County prosecutor who lost a GOP primary bid for the CCA in 2018, said if the three Republican candidates win their seats in November, they likely won’t want to be known as “Paxton’s judges.” 

“In the vast majority of cases the CCA hears, Paxton won’t be a party,” Brandon said. “When these judges take office and take an oath to uphold the Texas constitution and Texas laws and to serve the people of Texas, I hope, and believe, they will care more about that responsibility than they do about the political agenda of Ken Paxton.” 

Schenck, Parker, Finley, and Anyiam did not respond to the Observer’s requests for comment. 

The ousted judges had a combined nearly 60 years of experience on the Court of Criminal Appeals. Sharon Keller joined the bench in 1994, Barbara Parker Hervey in 2001, and Michelle Slaughter in 2019. Keller and Hervey would have both reached the mandatory retirement age of 75 mid-term, which would have opened up their spots to gubernatorial appointees. 

Keller is perhaps the most well-known member of the CCA, elected as its first female member in 1994 and holding the title of longest-serving presiding judge in the court’s history. But her time on the court has been blighted by multiple ethics complaints—including for her failure to disclose millions of dollars of financial assets—and earned her the moniker “Killer Keller” in the press. 

Keller was steadfast in her tough-on-crime, pro-prosecution approach and almost robotic in her rule-following.

On September 25, 2007, a Texas man named Michael Richard was scheduled to die by lethal injection. But that day, the U.S. Supreme Court had decided to consider the constitutionality of the lethal injection protocol. Knowing this would likely qualify their client for a stay of execution while the court deliberated, Richard’s lawyers drew up an appeal. But they weren’t going to make it to the courthouse to deliver a physical copy of the appeal by 5 p.m., and at the time, appeals couldn’t be emailed or digitally filed. When a court staffer called Keller at her home to see if they could keep the clerk’s office open to receive the appeal, Keller famously replied, “We close at 5.” 

Richard was executed that night, the only prisoner in the United States not to receive a stay while the Supreme Court case was pending. 

Keller was reprimanded by the State Commission on Judicial Conduct for not following the standard execution night protocol. The reprimand was later voided due to a technicality, but by then outrage had already reached a fever pitch among members of the media, attorneys, judges, and even some members of the state legislature. Democratic state Representative Lon Burnam filed a bill calling for Keller’s impeachment and accusing her of “willful disregard for human life.”

Despite hailstorms of high-profile disapproval, Keller was repeatedly reelected to her position as presiding judge. “The critics were all people in the system, not people in the political process,” said Scott Henson. Her deference to prosecutors “wasn’t going to get her in trouble in Republican primaries.” 

Keller did not agree to an interview or respond to the Observer’s written questions. 

Keller’s election to the bench marked the beginning of a seismic shift on the high court—and across Texas’ statewide elected positions—from Democratic domination to Republican control. It was also a marked shift into a new era of capital punishment as the CCA’s “rate of reversal of death penalty cases plummeted” in Texas, according to the New York Times.

“Sharon Keller was not just one vote [on the court],” former CCA Judge Alcala told the Observer. “She, in many ways, formed the very conservative, pro-death penalty view of the court. She represented Texas’s longtime love of capital punishment.” 

Editor’s Note: Research and data analysis was contributed by Sunlight Research Center.