In the next issue of Texas Lawyer, Mary Alice Robbins reports, "Death Row Inmate Wants Rule 202 Depos of Former Judge, Former DA ."
In an unusual use of Texas Rule of Civil Procedure 202, death row inmate Charles Dean Hood has filed a petition in Collin County seeking to take the depositions of the judge and prosecutor for his 1990 trial.
According to the petition, filed Aug. 19 in a Collin County court-at-law and refiled Aug. 20 in the 199th District Court, Hood seeks to depose former Collin County District Attorney Tom O'Connell and former 296th District Judge Sue Holland, also a former judge on the Texas Court of Criminal Appeals, "to investigate potential actions civil in nature" against one or both of them. The potential actions include possible claims under 42 U.S.C. ยง1983.
Hood also is asking the district court to order Holland and O'Connell to provide to him, among other things, any letters, cards and gifts that Holland and O'Connell have exchanged, photographs and videotapes showing them together, and e-mails or text messages from Holland or O'Connell to anyone else that pertain to Hood's recent allegations that they had an affair.
And:
Texas Defender Service attorney Gregory Wiercioch of San Francisco says, "We thought it [the Rule 202 petition] was a vehicle that we could use to get Judge Holland and the former district attorney to talk." Wiercioch represents Hood along with Ellis.
As alleged in the petition, Holland and O'Connell's "strategy of silence is understandable: Proof of an undisclosed intimate relationship could not only result in civil liability, it could also taint the validity of numerous judgments, convictions, and sentences in Collin County, Texas, including Petitioner's capital murder conviction, for which he is scheduled to be put to death on September 10, 2008."
Neither Holland nor O'Connell returned telephone calls seeking comment before presstime. John Rolater, appellate chief in the Collin County DA's Office, says he cannot comment on pending litigation.
Lonny Hoffman, a University of Houston Law Center professor whom Wiercioch consulted prior to filing the petition, says that while this is an unusual use of Rule 202, he believes it's legitimate. "They are investigating a potential civil claim," Hoffman says. "That's exactly what [Rule] 202 is for."
However, Collin County Court-at-Law No. 2 Judge Jerry Lewis did not think his court had jurisdiction over the petition. In his order transferring the petition to the district court, Lewis wrote, inherent or at least implied in the petition is the need to stay Hood's execution while the requested depositions are taken. "This court has neither jurisdiction nor inherent authority to order the stay of a capital execution," Lewis wrote.
Earlier coverage is here.
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