The Court of Criminal Appeals order is here. A dissent by Judge Cochran, joined by Judges Price and Holcomb, is here.
"Texas appeals court won't rule whether judge-prosecutor affair tainted Collin County death penalty trial," is Diane Jennings' Dallas Morning News report.
The question of whether a romantic relationship between a judge and prosecutor is unfair won't be decided by the Texas Court of Criminal Appeals.
The issue in the capital murder case of Charles Dean Hood roiled the legal community last summer, but the Court ruled Wednesday it would not consider the issue because defense attorneys did not raise it initially.
Defense attorney David Dow called the decision by Texas' highest criminal court "gutless."
"The question of whether there is a fundamental taint to this trial is, at this point, going to be decided by a federal court – if it's going to be decided by any court at all – because what the state court has said is, ‘We don't care,'" said Dow, litigation director for the Texas Defender Service.
Hood was not directly asking the appellate court for a new trial; rather, his petition sought to have the court decide if a secret affair between Judge Verla Sue Holland and Tom O'Connell, then the Collin County district attorney, had resulted in Hood's receiving an unfair trial in 1990.
John Rolater, assistant district attorney for Collin County called Wednesday's ruling "a significant procedural victory."
And:
Dow said he was stunned by the ruling. When the Court denied a stay on the issue last year, "it denied a stay because it said ‘There's no proof. Come back to us when you have some proof.'"
The service came back with that proof – acknowledgement from the two principals that an affair had occurred, "And what do they say?" Dow asked. "‘Tough, you lose any way."
The ruling came despite the fact that District Judge Greg Brewer had recommended Hood be allowed to pursue the claim, going so far as to say the state's "hands are unclean."
Brewer said Hood's legal team exercised "reasonable diligence" during the years, and that prosecutors' claim that the defense had moved too slowly was not valid.
Court of Criminal Appeals Judge Cathy Cochran filed a dissenting opinion in the case, in which Judge Tom Price and Judge Charles Holcomb joined. Cochran wrote that she would accept Brewer's findings and allow Hood to pursue the claim.
"No retrial for condemned man after judge-DA affair," is Jeff Carlton's AP report, via Google News.
A Texas death row inmate won't be able to argue for a new trial, despite admissions of an affair between his trial judge and the prosecutor, a court announced Wednesday.
The Texas Court of Criminal Appeals ruled 6-3 that convicted murderer Charles Dean Hood should have raised concerns about the affair between the now retired court officials in earlier appeals. The ruling overturned a lower court's recommendation that Hood be able to make his case for a new trial based on the affair.
"Our argument is that they had this information and should have raised it in the earlier writ," said current prosecutor John Rolater, the chief of Collin County's appellate division. "We consider this a significant success for the state."
Hood's attorneys said in a statement that the affair led to a tainted trial and "obvious and outrageous violations" of Hood's constitutional rights. The ruling will "only add to the perception that justice is skewed in Texas," said Andrea Keilen, of the Texas Defender Service.
The rejection from the state's highest criminal appeals court means a future appeal on the same grounds must go to the U.S. Supreme Court.
"No one would want to be prosecuted for a parking violation — let alone for capital murder — by a district attorney who is sleeping with the judge," another Hood attorney Greg Wiercioch said. "We are outraged by this breakdown in the integrity of the justice system. ... Mr. Hood is entitled to a new trial before an impartial judge and a fair prosecutor."
Hood's attorneys have said they could not raise the issue of the affair until last year, because it wasn't yet a known fact.
And:
Hood won a reprieve last September, a day before his scheduled execution. No new execution date has been scheduled, and he still has at least one other appeal pending regarding whether jury instructions were flawed. A ruling favorable to Hood could result in a new sentencing hearing but not a new trial.
The Austin-based appeals court granted the stay of execution because of the issue of jury instructions. It was unrelated to the once secret romantic relationship between Hood's trial judge, Verla Sue Holland, and Tom O'Connell, the former district attorney in Collin County.
O'Connell was the county's elected district attorney from 1971-82 and from 1987-2002. Holland was a state district judge from 1981-96 before moving on to the Court of Criminal Appeals, where she served with eight of the nine current judges before resigning in 2001.
Neither Holland nor O'Connell have been publicly disciplined by the State Commission on Judicial Conduct or the State Bar of Texas.
Earlier coverage of Charles Dean Hood's case begins with this post.
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