"Judge-prosecutor affair admission may have come too late in Charles Dean Hood death row case," is Diane Jennings' report in today's Dallas Morning News.
Earlier this year, the judge in the 1990 case and the prosecutor admitted to having an affair, although when the relationship ended is not clear.
Mr. Hood’s attorneys fought desperately in recent months to obtain evidence of the alleged affair, and finally got an admission from former Judge Verla Sue Holland and former district attorney Tom O’Connell in civil depositions a few days before Mr. Hood’s most recent execution date in September.
And:
The Court of Criminal Appeals has now sent the case back to the district court to determine whether the evidence is being presented too late in the appeals process.
Mr. Hood “did not try to obtain proof of the affair until some eighteen years after his trial,” the court ruling says. It also noted that the method through which he obtained the proof has been available for several years, but Mr. Hood’s lawyers “did not utilize this tool until after he was given an execution date.”
Andrea Keilen, Executive Director of the Texas Defender Service, which is representing Mr. Hood, said the court’s order “does seem like another attempt to avoid getting to the heart of the case, which is about the judicial bias issue and improper relationship between the judge and the prosecutor.”
The question should not be why the defense waited so long to raise the issue, she said. “The question they should be asking is, ‘Why didn’t the trial judge or trial prosecutor disclose this at the time of the trial?’”
Jennings also notes:
"Hood future rests with appeals court," is Stephanie Flemmons' report in the Plano Star-Courier.
Brewer was asked by the CCA to return his recommendation in 60 days.
The order was issued in response to a habeas corpus petition filed by Charles Dean Hood's attorneys from the Texas Defender Service, which stated that Hood's rights to an impartial judge and a fair trial were violated in his capital murder trial due to a secret romantic relationship between the judge and prosecutor. Hood was sentenced to death in 1990.
Judge Verla Sue Holland and District Attorney Thomas O'Connell both admitted being involved in an intimate relationship in separate depositions taken Sept. 8 in the Collin County District Court.
Andrea Keilen, Texas Defender Service executive director, said this is another hurdle the Court of Criminal Appeals is imposing. She said the hard evidence of the affair came in June of this year when a former district attorney who worked in the office with O'Connell submitted an affidavit confirming the relationship.
"We should not be talking about when the question was raised," said Andrea Keilen, Texas Defender Service executive director. "The heart of this case is they never disclosed their relationship at trial. Hood was not granted an impartial judge. This is a fundamental constitutional violation. Hopefully the real issue will be addressed."
After Brewer returns his recommendation, Keilen said the CCA will either grant a new trial or find they are not bound by the trial-court recommendation.
"For too long, there were efforts to keep the relationship between the trial judge and former prosecutor hidden," Keilen said. "Now that the trial judge and former prosecutor have admitted to the affair, we believe that Mr. Hood is entitled to a new trial."
The Fort Worth Star-Telegram carries an AP filing, "Appeals court tells panel to find out why inmate's appeal was filed 18 years later."
On Wednesday, the appeals court said the "discovery of new facts" could send the entire case back to the trial court for a review.
But the court said that before it makes a determination, the trial court has 60 days to collect evidence and make a recommendation on whether a legal rule known as the doctrine of laches means Hood’s lawyers surrendered the right to bring up the issue by not bringing it up sooner.
The attorneys should also be asked why they didn’t seek depositions or investigate rumors about the affair even though a 1999 rule on the Texas law books allowed them to do so, the court ruled.
"What they’re saying is, if there was foot dragging, we shouldn’t even have to consider this," Lawrence Fox, the former chairman of the American Bar Association’s ethics and professional responsibility committee, said. "Goodness gracious! The irony here is there were affirmative obligations on the part of this district attorney and the judge to disclose this. Each of them had absolute, in my view, ethical obligations to disclose their romance."
Earlier coverage, with a link to the CCA's order, is in yesterday's post.
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