The StandDown Texas Project

Florida Suprme Court Disbars Former Judge Over Death Penalty Trial Conduct

The Florida Supreme Court opinion in Florida Bar v. Gardiner is available in Adobe .pdf format.

"Florida Supreme Court disbars former Broward Judge Ana Gardiner," is by Tonya Alanez of the South Florida Sun-Sentinel.

The Florida Supreme Court has disbarred former Broward Circuit Judge Ana Gardiner from the practice of law.

During a death penalty case that was before her in 2007, Gardiner and the prosecutor engaged in a clandestine and improper "personal and emotional relationship," exchanging 949 cellphone calls and 471 text messages.

"Considering Gardiner's dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case, we conclude that disbarment is the appropriate sanction," the state's Supreme Court justices wrote in a unanimous decision released Thursday.

And:

Gardiner, 52, served as a judge from 1999 until her resignation in 2010.

Gardiner resigned while the Judicial Qualifications Commission was reviewing the misconduct allegations and agreed never to run for another judgeship.

"Former judge disbarred for handling of murder case," is the AP filing via WCTV-TV.

The court on Thursday took away the law license of former Broward County Circuit Judge Ana Gardiner. The high court said the severe sanction was appropriate because Gardiner's actions resulted in a new trial in a murder case.

During the 2007 trial, prosecutor Howard Scheinberg and Gardiner began a secret personal relationship and exchanged repeated phone calls and texts. Gardiner was presiding over the trial.

Omar Loureiro was convicted of first-degree murder, and Gardiner sentenced him to death. The conviction was thrown out after her relationship with Scheinberg was disclosed. Loureiro was convicted after a second trial and sentenced to life in prison.

 The Broward Palm Beach New Times posts, "Broward Judge Ana Gardiner Disbarred by Florida Supreme Court," by Chris Joseph.

Former embattled Broward Circuit Judge Ana Gardiner has been disbarred from practicing law by the Florida Supreme Court.

Back in 2008, New Times broke the story of Gardiner's improper sexual relationship with then-prosecutor and Assistant State Attorney Howard Scheinberg during a death penalty trial.

Gardiner and Scheinberg had both been working the Omar Loureiro murder trial, with Scheinberg as the prosecuting attorney and Gardiner as the judge of the case.

When confronted with the relationship, as well as the 49 phone calls and 471 text messages between the two, Gardiner lied under oath.

Earlier coverage of the case begins at the link.

In Texas, a secret relationship between a judge and a prosecutor during a capital murder trial had a very different ending.  Coverage of the case of Charles Dean Hood begins at the link

Prosecutor-Judge Relationship - Not Texas, Not Charles Dean Hood Case

"Prosecutor-judge relationship warrants one-year suspension, Bar report says," is the South Florida Sun-Sentinel report written by Tonya Alanez.

A text-message entanglement with an ex-judge has taken the reputation of former homicide prosecutor Howard Scheinberg from sterling to sullied. The next blow may be a one-year suspension of his law license.

While trying a death-penalty case before Judge Ana Gardiner in 2007, Scheinberg exchanged 949 phone calls and 471 text messages with the judge. For failing to disclose the communications, a referee for the Florida Bar has found Scheinberg guilty of professional misconduct and recommended the suspension.

"The communication should have been revealed to opposing counsel and failing to make such a disclosure was also prejudicial to the administration of justice," Florida Bar Referee Sheree Davis Cunningham wrote in her 10-page report. "His disregard, inadvertent or otherwise, for the sanctity of the legal process must be addressed."

Scheinberg has 60 days from the date of the April 11 report to appeal. The Florida Supreme Court makes the final decision on attorney discipline.

And:

The recommended suspension is a major fall for a once highly respected homicide prosecutor. Nor does it portend well for Gardiner's professional fate. Her final hearing before the Florida Bar is slated for May 24 at the Palm Beach County Courthouse.

"I would like to think they would punish her more harshly," said Bob Jarvis, an attorney and professor of legal ethics at Nova Southeastern University. "You can certainly make the argument … that as a judge she had a much greater duty to make sure that this didn't happen."

When Gardiner resigned from the bench in 2010, she successfully sidestepped answering a misconduct complaint lodged by the state's judicial watchdog agency. She remains vulnerable, however, to disciplinary action by the Florida Bar, which governs attorneys' conduct in Florida.

If a secret judge-prosecutor relationship sounds familiar, you may be thinking of the Texas case of Charles Dean Hood; coverage of his case begins at the link.

Supreme Court Rejects Charles Dean Hood Appeal

"US Supreme Court refuses appeal related to Texas death row case where judge and DA had affair," is the AP post via the Republic.

The U.S. Supreme Court has refused an appeal from attorneys for a Texas death row inmate who wanted an entire new trial rather than just a court-ordered resentencing hearing after it was disclosed his trial judge and prosecutor in Collin County had a secret affair.

The justices had no comment in the order Monday refusing to review Charles Dean Hood's case. Hood insists he's innocent of the 1989 fatal shootings of a woman and her boyfriend at a home in Plano in suburban Dallas.

The Texas Court of Criminal Appeals ordered the new sentencing trial. Hood's lawyers contended the law at the time of his 1990 trial required an entire new trial.

The affair was disclosed as Hood's attorneys successfully headed off his scheduled execution three years ago.

The action on Hood's case is noted on page 19 of the Supreme Court Order List released yesterday, the first day of the 2011 term.

Earlier coverage of the Charles Dean Hood case begins at the link.

Texas Judges Run in the Dark

That's the title of an editorial in today's Austin American-Statesman making endorsement for Texas high courts races in the upcoming general election.  LINK

As we've noted many times before, Texans zealously cling to their right to elect their judges but would be hard pressed to name even a few of the 18 people who occupy the benches of two highest courts in the state, the Texas Supreme Court and the Court of Criminal Appeals.

Nonetheless, every two years, judicial candidates ask people for money and votes then cross their fingers. There might be a better way to do this, but until Texas finds it, the state's voters will hand the power to redirect lives and money to people they barely know.

The nine-member Supreme Court is the last stop in the state system for civil disputes, and, as the name implies, the Court of Criminal Appeals is the last word in the state system for criminal cases.

This year, three Supreme Court justices — all Republicans — face challenges from Democrats, and only one of the three justices running for re-election to the Texas Court of Criminal Appeals faces a Democratic challenger.

It is no coincidence that Justice Mike Keasler drew a Democratic opponent. Though Keasler, a Republican, who has served two six-year terms, is an amiable enough fellow, he is associated with a faction of the court that never met a conviction it didn't like.

A series of death penalty cases involving ineffective assistance of counsel, allegations of bad science or just plain sloppy police work have been affirmed by the court of appeals. One particularly troublesome case involved Verla Sue Holland, a former member of the Court of Criminal Appeals who, as a state district judge, presided over a capital murder case in which the evidence against the defendant was strong. The problem was not the quality of evidence, though. When long-standing rumors that Holland and the prosecutor in the case had a romantic affair were confirmed, questions arose about how fair the trial was for defendant Charles Dean Hood.

Keasler was part of the Court of Criminal Appeals majority that refused to grant Hood a new trial when the defense claimed that the first one couldn't have been fair given the circumstances. The case drew national attention and a lot of comment about the appeals court standards for a fair trial.

The appeals court finally ordered a new punishment trial for Hood but had to reverse an earlier ruling that had nothing to do with Holland's illicit affair with then-Collin County District Attorney Tom O'Connell Jr.

It isn't the only example of the court's strange notions of justice.

Keasler, 68, shrugs when asked about the cases, saying the law is imperfect sometimes. That attitude might make sense in a strictly academic legal sense to someone, but it is chillingly cavalier when a life is at stake.

Clearly, it is time for new blood on the court, and we recommend Keith Hampton, 49, an Austin lawyer, to inject it. Hampton is a well-respected advocate who was the overwhelming winner in a statewide poll of lawyers. The poll might not mean much outside legal circles, but it speaks volumes because incumbent jurists usually have an advantage in those surveys

It should concern all Texans that the Court of Criminal Appeals has lost respect; the judiciary is the bedrock of a civilized society.

Earlier coverage is here; more on the Charles Dean Hood case in its index.  Just to be clear, StandDown is non-partisan and does not endorse political candidates. 

High Court Fails in Hood Appeal

That's the title of an editorial in today's San Antonio Express-News on the Charles Dean Hood case.  LINK

The Texas Court of Criminal Appeals made a mockery of justice when it ruled last year that convicted murderer Charles Dean Hood was not entitled to a new court trial. On the basis of a technicality, the court did find that Hood — who is on death row — deserved a new sentencing trial. But that ruling completely ignored issues of serious judicial and prosecutorial misconduct.

The judge who presided over Hood’s trial and the district attorney who prosecuted him in Collin County were engaged in a long-term, secret affair. Such a relationship creates a conflict of interest that severely undermines the impartiality of the justice system. While the facts of the case against Hood may not be in question, the fairness of his trial certainly is.

In a bizarre ruling, a majority on the Texas Court of Criminal Appeals ruled that Hood’s lawyers waited too long to raise the issue of the affair. Hood’s defense team couldn’t raise it any sooner, however, because the secret relationship wasn’t disclosed until 2008.

Hood’s attorneys appealed to the U.S. Supreme Court. Twenty-one former judges, government officials and prosecutors — including former Bexar County District Attorney Sam Millsap and former FBI Director William Sessions — filed an amicus brief in support.

“The conduct of the trial judge and prosecutor . . . combined with the short shrift given to petitioner’s claim by the Court of Criminal Appeals cast grave doubt on the impartiality and fairness of the trial in this case and tarnish significantly the reputation of the judiciary as a whole,” their brief stated. The high court “is the last court with an opportunity to prevent the infliction of this serious harm — both to petitioner and to the judiciary.”

If the ruling of the Texas Court of Criminal Appeals was bizarre, the ruling of the U.S. Supreme Court was incomprehensible. The justices, without explanation, rejected Hood’s appeal.

And:

Justice is supposed to be blind. In this case, the Texas Court of Criminal Appeals and the U.S. Supreme Court have simply turned a blind eye to outrageous misconduct that undermines public confidence in the fairness of the justice system.

Earlier coverage begins with this post; all coverage, available through the Charles Dean Hood index.

What's More Compromising Than Money?

That's the title of an editorial in this morning's New York Times on the Charles Dean Hood case.  LINK

The Supreme Court abdicated its responsibility to address fundamental questions of ethics and fairness when it declined to review the case of Charles Dean Hood, an inmate on death row in Texas.

The one-line order, issued without comment from any of the justices, left in place an egregiously tainted 1990 double-murder conviction. Eighteen years after Mr. Hood was sentenced to death, the state trial judge, Verla Sue Holland, and Tom O’Connell, then the Collin County district attorney, admitted that they had had a secret affair that appears to have ended not long before the trial.

After considering these seamy circumstances, the Texas Court of Criminal Appeals last year denied Mr. Hood’s request for a new trial, ruling — incredibly — that he took too long to raise the conflict of interest and should be executed. Yet it took a court-issued subpoena to get the two officials to confirm their long-rumored affair. Their success in hiding their relationship should not count against Mr. Hood.

And:

The Supreme Court correctly ruled last year that millions of dollars in campaign spending on behalf of a judge’s election bid created an intolerable “probability of actual bias.” The court decided that Chief Justice Brent Benjamin, of the West Virginia Supreme Court of Appeals, was required to recuse himself from a case involving Massey Energy, one of the country’s biggest coal companies, after Massey’s chief executive spent $3 million to help get Justice Benjamin elected.

The right to a fair hearing, before an impartial judge, is at the heart of the nation’s judicial system. If money raises a serious question about that impartiality, love seems to be at least as worrisome. The Supreme Court, sadly, failed in its duty to clearly draw that line.

Earlier coverage begins with this post; all coverage, available through the Charles Dean Hood index.

Lithwick on the Hood Case

Her latest Newsweek column is online, "Courtly Love: Why an affair fails the 'ick' test."  It's a must-read.

Hood has already been granted a new sentencing hearing because the Texas appeals court has acknowledged that the jury instructions were improper, but prosecutors say they will again seek the death penalty. In any event, resentencing Hood doesn't resolve the fundamental problem with the case. The issue here is whether any reasonable person would believe that a criminal trial at which one's prosecutor and judge are secretly in love could ever be fair. And that's the issue the courts keep refusing to address.

Last year the Supreme Court handed down a blockbuster opinion in Caperton v. Massey, a case testing whether a justice on West Virginia's highest court should have recused himself from hearing an appeal in which one of the parties—Don Blankenship of A.T. Massey Coal Co.—had just donated $3 million to his judicial election campaign. Writing for a sharply divided 5–4 court, Justice Anthony Kennedy called the appearance of a conflict of interest in this case so "extreme" that the judge's failure to recuse himself undermined the constitutional right to due process. The Hood appeal to the Supreme Court essentially asked whether a judge might be as compromised by great sex as by big money. In his filings, Hood argued that the trial judge's "long-term, intimate sexual relationship and later close friendship with [the prosecutor] attuned her to his professional and personal interests and made those interests her own." Hood said that unlike the Caperton case, in which Blankenship's financial support of the judge was a matter of public knowledge, the Texas judge was more compromised because she kept her relationship a secret.

And:

In his compelling new book, The Autobiography of an Execution, Texas death-penalty lawyer David Dow condemns a system of capital punishment built on evading responsibility at every stage of litigation: Jurors duck behind other jurors. Judges take refuge behind jury verdicts. The appeals courts wordlessly affirm the trial judge. Then the Supreme Court hangs out a sign that says GONE FISHIN'. Since everyone is fairly certain the accused probably killed someone, the fact that along the line an injustice may have occurred just doesn't matter. But if you believe that a one-sentence disposition of his case is more justice than a Charles Hood deserves, you're still asking the wrong question. Hood may be sentenced to die in a justice system where outrageous judicial bias merits only a sentence. The rest of us have to go on living in it.

Earlier coverage begins with this post;all coverage, available through the Charles Dean Hood index.

Justice Further Delayed in Hood Case

That's the title of an editorial in today's Dallas Morning News.  LINK

The U.S. Supreme Court's decision against taking up the tawdry Charles Dean Hood murder case is disappointing to those of us who crave a watchdog against the mischief that sneaks into Texas courtrooms.

The state's appeals judges had already taken a pass on examining allegations of corrupted justice and sexual secrets kept by the Collin County judge and prosecutor in the death penalty trial. The fact that the two admitted to bed-hopping before the trial – and remaining "good friends" – wasn't enough to get the Texas Court of Criminal Appeals to consider whether the outcome was fatally flawed.

The appeals court's refusal had the look and feel of sweeping the state's dirt under the rug.

Enter the Supreme Court and a request by Hood's appellate team for a judgment on whether former Judge Verla Sue Holland and former District Attorney Tom O'Connell could have been faithful to their oaths to uphold the law and its demands for impartiality. Is it even possible for a judge to manage impartiality toward a prosecutor with whom she had been repeatedly intimate, in her home and his, when their spouses were away?

In declining to hear the case this week, the Supreme Court did not give its reasons. It's anyone's guess whether it was solely on procedural matters or whether Hood's legal team might get the fair-trial question back into federal courts, perhaps back to the high court itself.

And:

Evidence at trial convinced a jury of Hood's guilt. That finding we don't question. He appears to be a dangerous man with the blood of two people on his hands.

But shortcuts to justice can't be tolerated, even when it comes to unsavory people. Leaving the door open to corrupted justice makes everyone vulnerable.

The Plano Star-Courier news coverage is, "Hood case not heard by U.S. Supreme Court," written by Zach Markovic. 

Convicted murderer Charles Dean Hood’s opportunity for a new trial might have ended Monday as the U.S. Supreme Court declined to hear his appeal.

Hood has been on death row for 20 years and has been fighting to get a new trial since it was discovered that the judge in his trial, Judge Verla Sue Holland and then Collin County District Attorney Tom O'Connell were engaged in a romantic affair. The judge and district attorney did not admit their affair until they were questioned under oath a year ago.

Earlier coverage begins with this post; all coverage, available through the Charles Dean Hood index.

Additional Coverage of the Hood Case

CBS News has posted the report, "Prosecutor-Judge Affair Not Enough to Reverse Capital Murder Conviction: U.S. Supreme Court," this morning.  It's by Carlin DeGuerin Miller.

An admitted extramarital affair between the prosecutor and presiding judge in the 1990 capital murder trial of Charles Dean Hood does not merit overturning his conviction, the United States Supreme Court ruled Monday.

In his Supreme Court appeal, Hood, who has been on death row in Texas for 20 years, sought an entirely new trial, based on the once-secret romantic relationship between his trial judge, Verla Sue Holland, and Tom O'Connell, the former district attorney in Collin County.

"We are disheartened [by the ruling]," said Andrea Keilen, director of the Texas Defender Service, a legal group representing Hood. "No one should be prosecuted for a parking ticket let alone for capital murder by the district attorney who has had a sexual affair with the judge handling the case."

Neither Holland nor O'Connell has been publicly disciplined by the State Commission on Judicial Conduct or the State Bar of Texas. Their relationship apparently was an open secret in Collin County legal circles.

In the legal wrangling to block Hood's execution, the former couple acknowledged under oath they had an intimate relationship.

Earlier coverage begins with this post; all coverage, available through the Charles Dean Hood index.

News Coverage of the Charles Dean Hood Case

"Supreme Court Denies Review in Texas Case Involving Judge's Affair With DA," is Tony Mauro's report for the National Law Journal.

Without comment, the Supreme Court on Monday denied review in the case of Texas death row inmate Charles Dean Hood, whose trial judge Verla Sue Holland was in a romantic relationship with county district attorney Tom O'Connell, who was prosecuting him.

The case drew worldwide attention, and his Supreme Court appeal was joined by former FBI director and judge William Sessions, former judges including Patricia Wald and John Gibbons, and ethicists and prosecutors nationwide, in amicus briefs filed by Arnold & Porter's Lisa Blatt and Andrew Pincus of Mayer Brown.

Hood has been on death row since 1990 when he was convicted in a double murder. The judge and the prosecutor had an affair before the trial. Repeated requests at the state level for a new trial have failed, but in February, the Texas Court of Criminal Appeals ordered a new sentencing hearing on grounds relating to the jury instruction in his case, not the affair.

Last month, former Texas governor Mark White, a death penalty supporter who nonetheless joined a brief on Hood's behalf, wrote a column in The National Law Journal urging high court review.

"The trial judge and the prosecuting attorney's affair breaches every standard of fairness that you would expect a defendant to receive during a capital case or, for that matter, a noncapital case," wrote White. "Hood could not have gotten a fair trial under these circumstances. His trial was infected with an incurable conflict of interest. The judge and the prosecutor kept the affair secret for their own personal reasons, but they also concealed it from the people who were entitled to the information. If Hood's counsel had known about or had proof of the affair at the time of trial, he could have moved the judge to recuse herself."

Today's Austin American-Statesman has, "Supreme Court turns down appeal of Texas inmate tried in court of amorous judge, prosecutor," by Chuck Lindell. 

The U.S. Supreme Court rejected an appeal Monday from Charles Dean Hood, a Texas death row inmate who complained that he was denied a fair trial because his trial judge and prosecutor had engaged in a secret years-long affair.

Announced without comment from the court, the rejection appears to put the issue of the amorous judge and prosecutor to rest for future Hood appeals, though defense lawyers said they were evaluating additional litigation options.

"No one should be prosecuted for a parking ticket, let alone for capital murder, by the district attorney who has had a sexual affair with the judge handling the case," said Andrea Keilen, director of the Texas Defender Service, which represents Hood. "We will continue to zealously represent Mr. Hood, as we believe his case was marred by a fundamental injustice."

The Texas Court of Criminal Appeals rejected that argument in September, ruling 6-3 that Hood's lawyers waited too long to raise the issue on appeal — despite defense claims that the affair was impossible to confirm until 2008, when a court ordered the now-retired judge and prosecutor to answer questions under oath.

In February, however, the Texas court threw out Hood's death sentence on an unrelated issue — flawed jury instructions — while keeping intact his conviction in the 1989 shooting deaths of two people in Plano.

And:

Hood's case prompted 30 top legal ethicists and 21 former judges and prosecutors from across the country to file briefs urging the Supreme Court to grant a new trial because the affair undermined public trust in the law, violated the "bedrock principle" that judges must avoid conflicts of interest and tainted the results of Hood's legal proceedings.

Diane Jennings writes, "Supreme Court rejects appeal in Charles Dean Hood's murder case," for the Dallas Morning News.

Hood has received several stays of execution as his lawyers sought to raise objections about a romantic relationship between Judge Verla Sue Holland, who presided over the trial, and Tom O'Connell, then the Collin County district attorney. Holland and O'Connell eventually acknowledged a sexual relationship that they said took place before the trial and a lasting friendship afterward.

Despite that, Hood has not gained a new trial in state court, so his attorneys petitioned the Supreme Court in February to hear the case. That petition was signed by several legal ethicists and prominent attorneys, including former FBI Director William Sessions and former Texas Gov. Mark White.

The AP report is, "U.S. Supreme Court declines 5 Texas Death Row appeals," by Michael Graczyk, via the Fort Worth Star-Telegram.

The U.S. Supreme Court on Monday rejected appeals from five Texas Death Row inmates, including Charles Dean Hood, who was condemned even though his Collin County trial judge and the prosecutor were having an affair.

The justices did not comment in turning down Hood's appeal.

And:

In a second case Monday, the high court rejected an appeal from Delma Banks, 51, who has been on Death Row for nearly three decades. The court left in place his conviction for the shooting death of 16-year-old Wayne Whitehead at a park near Texarkana in April 1980.

Like Hood, Banks still is entitled to a new punishment trial. The high court threw out his death sentence in 2004, agreeing with his attorneys that Texas authorities withheld information that a witness testifying at his punishment trial was a paid police informant.

James Elliott, an assistant district attorney in Bowie County, said Monday that he was waiting for a federal judge's instructions on when he can schedule a new punishment hearing.

"High court rejects death row appeals from Texas," is the title of Bill Mears' CNN post.

In the separate appeal, the high court refused to intervene on behalf of one of the nation's longest serving death row inmates. Delma Banks was convicted of the murder 30-years ago this week of 16-year-old Richard Whitehead in eastern Texas. Banks' original 2003 execution date was postponed over allegations of prosecutorial misconduct at his trial. Various courts have since allowed the execution to go forward.

Banks' attorneys claim faulty eyewitness testimony and the exclusion of blacks on the all-white jury prevented him from receiving a fair trial. Banks is African-American, his victim was white. The case is Banks v. Thaler (09-717).

The justices also put off a decision on another high-profile capital case from Texas, which executes more prisoners per year than any other state.

Henry "Hank" Skinner has made an actual innocence claim, demanding DNA testing on other evidence gathered at the crime scene. The justices had issued a stay just before his scheduled March 24 execution, to consider whether capital inmates have a basic right to have forensic evidence reviewed.

Bloomberg reports, "Judge-Prosecutor Affair Case Rebuffed by High Court," by Greg Stohr, via Business Week.

"US death sentence upheld despite judge-prosecutor affair," is the AFP post, via Google News.

Earlier coverage begins with the preceding post; all coverage, available through the Charles Dean Hood index.

Sessions & White on the Hood Case

Former Federal Judge and FBI Director William Sessions and former Governor Mark White both urged the Supreme Court to review the Charles Dean Hood.  They reacted to the Court's refusal to examine the case through a news release from the Constitution Project.

“We are disappointed that the Supreme Court today refused to hear Mr. Hood’s case. It means that the manifest unfairness that occurred in Mr. Hood’s case will remain unaddressed by any court, and the injustice will go unremedied. The relationship between the judge and prosecutor in this case breached every standard of fairness that we rightfully expect from our country’s criminal justice system, casting grave doubt on the impartiality of the trial in this case and tarnishing the reputation of the judiciary and our criminal justice system as a whole.

“For the Texas Court of Criminal Appeals and now the United States Supreme Court to show indifference to such paramount injustice, particularly in a case that resulted in the imposition of the death penalty, should be an outrage to all citizens.”

In February, the Constitution Project organized an amicus brief filed in the U.S. Supreme Court on Mr. Hood’s behalf, from 21 former judges, government officials, and prosecutors. Governor White and Judge Sessions were signatories to the brief.

Earlier coverage begins with this post; all coverage available through the Charles Dean Hood index.  The next post will contain news coverage.

Supreme Court Rejects Review of Charles Dean Hood Case

"Supreme Court rejects appeal in case where killer's judge and Collin DA had sexual relationship," is the title of Diane Jennings post at the Dallas Morning News.

The U.S. Supreme Court will not weigh in on whether a romantic relationship between a judge and a Collin County prosecutor tainted the death penalty trial of Charles Dean Hood, as his lawyers claim.

Hood, 41, has been on Texas' death row since his 1990 trial for the murder of two people in Plano.

The Supreme Court today declined to review Hood's case. The decision came in a one-line order issued without comment.

Collin County prosecutors could not be reached for comment

Andrea Keilen, director of the Texas Defender Service, which represents Hood, said in a statement that she was disheartened by the court’s decision.

"No one should be prosecuted for a parking ticket let alone for capital murder by the district attorney who has had a sexual affair with the judge handling the case,” she said.

Hood has received several stays of execution, as his lawyers sought to raise objections about a romantic relationship between Judge Verla Sue Holland, who presided over the trial, and Tom O'Connell, then the Collin County district attorney. Holland and O'Connell eventually acknowledged a sexual relationship that they said took place before the trial, and a lasting friendship afterwards.

Despite that, Hood has not succeeded in gaining a new trial in state court, so his attorneys petitioned the Supreme Court in February to hear the case. That petition was signed by several legal ethicists and prominent attorneys, including former FBI Director William Sessions and former Texas Gov. Mark White.

In February, the Texas Court of Criminal Appeals ruled that Hood was entitled to a new sentencing hearing -- for reasons unrelated to the sexual relationship between the judge and the prosecutor. The court said the jury that sentenced him was not given proper instructions on how to consider his background when determining his punishment.

Andrea Keilen's full statement is:

"We are disheartened that the United States Supreme Court ruled not to hear the case of Charles Hood in which the trial judge and district attorney who prosecuted Hood engaged in a secret, long-term, extra-marital affair. This is particularly disappointing given that the Texas Court of Criminal Appeals to date has ignored this obvious and outrageous constitutional violation.  Dozens of former state and federal prosecutors and judges and the nation's leading legal ethicists have criticized the handling of this case by the Texas death penalty system.  No one should be prosecuted for a parking ticket let alone for capital murder by the district attorney who has had a sexual affair with the judge handling the case and despite the Court's decision today, we will continue to zealously represent Mr. Hood as we believe his case was marred by a fundamental injustice."

Earlier coverage begins with this post; all coverage available through the Charles Dean Hood index.

Death Penalty Process Must Be Fair

That's the title of commentary in today's National Law Journal by former Texas Governor Mark White.  He's writing about the Charles Dean Hood case.  It's subtitled, "The high court should right the wrong in the Hood case, stemming from the judge's and prosecutor's affair."

I'm a longtime supporter of the death penalty, but what's happening in Charles Hood's case in Texas isn't right. If we are going to have the death penalty, we need to make sure that the process is fair and accurate.

The Texas Court of Criminal Appeals (the state's high court for criminal cases) recently granted a new sentencing hearing for Hood on a technical issue related to jury instructions but has refused to address the central issue in this case: The judge and the prosecutor at Hood's trial had a long-term secret affair prior to the trial and concealed the relationship for 20 years. This was a secret that the pair kept even when they knew Hood was on the brink of execution and was trying to verify the rumors of the relationship.

The trial judge and the prosecutor did not come forward voluntarily or abide by their ethical or constitutional duties to divulge this information. Indeed, they denied it or refused to cooperate when asked directly about the affair by Hood's counsel five years ago. Their admissions came only when they were forced by a Texas trial court to testify under oath in 2008.

Now that the world knows the truth and the state courts have failed to correct this injustice, it's imperative that the U.S. Supreme Court intervene in Hood's case and grant him a new trial with an impartial judge and an ethical prosecutor.

The trial judge and the prosecuting attorney's affair breaches every standard of fairness that you would expect a defendant to receive during a capital case or, for that matter, a noncapital case. Hood could not have gotten a fair trial under these circumstances. His trial was infected with an incurable conflict of interest.

And:

The harm to Hood is obvious, but the damage does not stop there. If the system fails to correct itself, it will deliver a blow to public confidence that cannot be easily remedied. Citizens can rightfully wonder how many other defendants were denied their right to a fair trial because the presiding judge and the prosecuting attorney concealed the true nature of their relationship.

People often mistake criticism of death penalty procedures for opposition to the death penalty across the board. I believe that the death penalty is appropriate for the most heinous crimes, those in which 21st ­century forensics or other probative evidence prove the defendant is guilty beyond a reasonable doubt, and after constitutional safeguards have been carefully observed.

Finally:

There's only one thing that can cure an unfair trial. That's a new trial. This time, it should be a fair one.

Mark White served as both attorney general and governor of Texas.  Texas' first post-Furman execution occurred while he was AG.  During his tenure as governor 19 men were executed in the state.

Earlier coverage of the Hood case begins with this post; all coverage available through the Charles Dean Hood index.

More on the Charles Dean Hood Case

Jordan Smith writes, "New Hearing for Death Row Inmate," in the current issue of the Austin Chronicle.

What still remains to be answered is whether Hood should receive a brand new trial in his case – a question pending in an application before the U.S. Supreme Court. At issue is whether Hood's right to due process was violated by the fact that the judge sitting over his trial, former CCA Judge Verla Sue Holland, had been engaged in a long-time intimate sexual relationship with Hood's prosecutor, Thomas O'Connell Jr. This, Hood's defenders allege, is a clear conflict of interest and should require that Hood receive a new trial. Holland and O'Connell finally admitted the affair after being forced to testify about it when being deposed in 2008. The CCA rejected Hood's request for a new trial, concluding that he had waited too long to raise that claim – even though Holland and O'Connell had kept the affair secret for years, making it difficult, at best, for Hood to get the proof he would have needed to bring the claim to the appeals court. Hood has petitioned the Supreme Court for review; the court has not yet responded to the request.

Meanwhile, however, 21 former judges and prosecutors (including former FBI Director William Sessions and former Texas prosecutor Sam Millsap) and 30 legal ethicists have filed briefs with the Supremes in support of Hood's claim. "While [the CCA's recent] decision recognized a clear flaw in the punishment phase of Mr. Hood's case, it should not distract the courts or the public from the more troubling issue at the center of this case: that the judge and prosecutor admitted under oath that they had a long-term ... relationship prior to [Hood's] trial, and that they intentionally kept this affair hidden for 20 years," said Andrea Keilen, executive director of the Texas Defender Service, which represents Hood. "This case requires Supreme Court intervention because the Texas [CCA] to date has ignored this obvious and outrageous constitutional violation. Mr. Hood is entitled to an entirely new trial before an impartial judge and prosecutor. Today's decision granting him a new punishment phase hearing does nothing to address or correct this egregious legal and ethical violation."

Dallas-Fort Worth CBS affiliate KTVT-TV reports, "Death Row Inmate Says Affair Warrants Retrial," by J.D. Miles.  It features video. 

Hood and his defense team thought that the affair would be an easy argument for a new trial. But the Texas Court of Criminal Appeals, where Judge Holland later served with current judges, ruled last year that the discovery came too late, and denied the request.

"They tried to kill me because of their former colleague, that's what it all boils down to. They didn't want that scandal to come out."

Earlier coverage begins with this post; all coverage, available through the Charles Dean Hood index.

Editorial Boards Speak Out on Charles Dean Hood Case

Editorials appeared in three major Texas newspapers on Saturday morning; the Dallas Morning News, Fort Worth Star-Telegram, and the San Antonio Express-News.

Let's begin with, "Three capital cases illustrate how tactics trump truth," for the Morning News.

Convicted killer Charles Dean Hood is getting a new day in court, but not for all the right reasons. The Texas Court of Criminal Appeals has granted him a new sentencing hearing, but that's beside the point.

The point is that Hood was convicted of murder in a scenario right out of Desperate Housewives. The Collin County judge who gazed out over the courtroom during the trial in 1990 would see a district attorney who had been in her bed. Their secret tryst – even though they had broken it off by trial time – represents such an obvious possibility of bias that any reasonable mind would tell the court to try the whole case again and keep it clean.

And:

The Hood trial is one of three Texas capital murder cases lined up before the Supreme Court – all revealing how legal jousting has become more important than pure justice. All increasing our resolve that the death penalty should be abolished.

Earlier this month, a judge held up the execution of Hank Skinner in a 1993 triple murder out of the Panhandle. Again, procedure was at issue, this time the death warrant. The Supreme Court is being asked to take on the far more important issue of whether testing should be ordered on evidence that hasn't undergone DNA analysis. Facts in the case indicate that the answer is yes.

Finally, there's the case of Delma Banks, convicted in a 30-year-old murder near Texarkana. He awaits word from the Supreme Court on complaints that authorities hid the fact they used testimony from a paid police snitch and a shaky witness who was intensively coached.

The chess game continues, more a matter of tactics than truth-finding. That's no way for Texas to determine who lives and who dies.

"Undermining faith in the Texas criminal justice system," is the title of the Star-Telegram editorial.

The Texas Court of Criminal Appeals has dealt with the case of Death Row inmate Charles Dean Hood a dozen times. And still the fundamental due process violation that tainted his 1990 capital murder trial hasn't been adequately addressed.

On Wednesday, the court granted Hood a new sentencing hearing. But that was based on jury instructions that a majority of the judges found to be flawed.

What still hangs over the case is the fact that the judge who presided over the trial and the district attorney who prosecuted the case had engaged in an extramarital affair and tried to keep it secret for years after Hood was sentenced to death in a double slaying.

Hood has asked the U.S. Supreme Court to order a new trial. That request is supported by dozens of legal ethicists, retired judges and other former officials. A friend-of-the-court brief joined by William Sessions, a longtime federal judge in San Antonio and FBI director, and former Texas Gov. Mark White argues that Hood "received the ultimate penalty -- death -- in a proceeding presided over by a judge whose impartiality appears doubtful at best."

Judges are supposed to recuse themselves from cases in which there might be even an appearance that they're biased. Who knows whether then-Judge Verla Sue Holland was biased because of an affair with Tom O'Connell, then-Collin County district attorney. No one can be sure -- and that's the problem.

When people's lives and liberty are on the line, lawyers and the judges they appear before aren't supposed to be cavorting outside the courthouse then pretending they have strictly a business relationship that respects the integrity of the court, the law and their professional obligations. The taxpaying public expects more and is entitled to it.

And:

If the judge and DA had done their ethical duty at the time, questions about the system's integrity would not loom over this case. The public wouldn't be left wondering whether a capital trial was entirely fair. And taxpayers wouldn't be footing the bill for continuing litigation and possibly a new trial.

How many times must we say this: If Texas is going to continue to impose the death penalty, everyone involved in capital trials must ensure that the prosecutions are fairly and properly done. Otherwise, the public can't have faith in the system.

The Express-News editorial is,"High court should take up tainted Texas trial."

Imagine finding yourself in court, on trial for jaywalking. You, of course, maintain your innocence. The prosecutor, however, seeks and obtains the maximum punishment allowable under the law.

Then you discover the court was far from being fair and impartial. The judge who presided over your trial was engaged in a secret, intimate relationship with the prosecutor who was trying to put you away.

The Texas Rules of Civil Procedure require judges to recuse themselves from proceedings in which impartiality or personal bias concerning a party — in this case, the prosecution — might reasonably be questioned.

And:

In the absence of responsible action by the top criminal court in Texas, 21 former judges and prosecutors, including former Bexar County District Attorney Sam Millsap, former Texas Governor and Attorney General Mark White and former federal judge and FBI Director William Sessions have called on the U.S. Supreme Court to review Hood's case. The high court should do so.

If, as the evidence suggests, Hood is guilty of two heinous crimes, then prosecutors should be able to obtain their conviction in a court untainted by personal conflicts. Allowing his conviction in Holland's courtroom to stand leaves a stain on the Texas judiciary that erodes public trust in the impartiality of the justice system.

Earlier coverage of the Hood case begins with this post.  More on Hank Skinner, here.

News Coverage of the Hood Ruling

The CCA's ruling in Ex Parte Hood, overturning Hood's Death Sentence, is in Adobe .pdf format.

"Death Penalty Is Thrown Out in Texas Murders," is the title of John Schwartz' report in today's New York Times.

A Texas court threw out the death sentence on Wednesday of a man whose double murder conviction gained international attention because of revelations that the judge and prosecutor had had an extramarital affair.

But the decision from the State Court of Criminal Appeals did not mention the affair, focusing instead on whether jurors had been blocked from getting information that might have helped them deliver a less severe sentence.

The prisoner, Charles D. Hood, was convicted in 1990 in the fatal shootings of Ronald Williamson and Tracie Lynn Wallace, a couple he lived with in Plano, Tex. Mr. Hood has denied committing the murders, though he was driving Mr. Williamson’s Cadillac when he was arrested.

For much of the nearly 20 years since a jury convicted him, Mr. Hood tried to prove that the judge who presided over the case, Verla Sue Holland, and the prosecutor, Thomas S. O’Connell Jr., had an extramarital affair and that this constituted a conflict of interest. In 2008, Ms. Holland and Mr. O’Connell admitted the affair, which they said was short-lived and had ended three years before Mr. Hood’s trial.

Last September, the Court of Criminal Appeals, the highest criminal court in the state, rejected Mr. Hood’s request for a new trial, saying he had taken too long to raise the issue. Mr. Hood appealed the decision to the United States Supreme Court, with briefs supporting his position filed by dozens of former judges, prosecutors and legal ethics experts. The court has not yet acted on the request.

The new opinion, on a separate writ, focused on whether the jurors should have been able to fully consider issues like Mr. Hood’s learning disabilities, and the fact that he had been gravely injured at 3 years old when a truck backed over him, crushing his legs.

Such questions about jury instructions are an area of legal dispute that has bounced from state courts to the United States Supreme Court and back over the past 20 years. Chief Justice John G. Roberts Jr. has called the result “a dog’s breakfast of divided, conflicting, and ever-changing analyses.”

With the equivalent of a textual sigh, Judge Cathy Cochran wrote in the Texas court’s majority opinion that, “We wade once more into the murky waters” of jury instruction; and the majority ruled that Mr. Hood deserved a new hearing on the question of punishment.

Chuck Lindell writes, "Divided court tosses death sentence for Hood," for today's Austin American-Statesman.

In a case that has come to symbolize the tension between swift justice and the proper application of the death penalty, the state's highest criminal court Wednesday tossed out the death sentence for Charles Dean Hood but not because his trial judge and prosecutor were having an affair.

A bitterly divided Court of Criminal Appeals granted a new sentencing trial for Hood based on frequently shifting U.S. Supreme Court rulings on flawed jury instructions used prior to 1991.

The 5-4 decision did not affect Hood's 1990 conviction in the shooting death of two people in Plano. But in granting a new punishment phase trial, the court reversed its 2007 decision on a similar Hood appeal, prompting a sharply worded dissent that included a rare direct attack on one of the majority's judges.

Collin County prosecutors said Wednesday they were reviewing the Hood opinion but were likely to seek the death penalty again.

Hood's case became national news because he is fighting for a new trial based on the revelation — confirmed in 2008 after several years of digging by defense lawyers — that then-District Judge Verla Sue Holland had been having a secret affair with Thomas O'Connell Jr., the former Collin County district attorney who prosecuted Hood.

In a separate appeal now pending before the U.S. Supreme Court, Hood argues that it is unfair to be tried for any crime, let alone capital murder, in a court where the judge and chief prosecutor are romantically linked. The Texas Court of Criminal Appeals rejected that argument last year, ruling 6-3 that Hood's lawyers waited too long to raise the issue on appeal.

The case has attracted friend-of-the-court briefs from legal ethicists and former judges and prosecutors urging the high court to grant Hood a new trial in the interest of justice in death penalty cases, in which the punishment is irreversible.

And:

In its ruling Wednesday, the Texas court said Hood's jury received improper instructions over how to weigh mitigating evidence — such as learning disabilities or childhood abuse — that might have led jurors to choose a life sentence instead of capital punishment.

The opinion by Judge Cathy Cochran cited a string of U.S. Supreme Court decisions on the Texas jury instruction. But while the court ruled 5-4 to grant a new sentencing trial, the court ruled 4-4 on accepting Cochran's reasons for tossing out Hood's conviction. The split decision means Cochran's rationale cannot serve as precedent in future rulings about the pre-1991 jury instruction.

"Death row inmate gets new punishment hearing," is Diane Jennings' Dallas Morning News report.

The romance between now-retired Judge Verla Sue Holland and then-District Attorney Tom O'Connell had been rumored for years. But proof was elusive until 2008, when Holland and O'Connell revealed in affidavits that they had a sexual relationship before the trial and a close friendship after the romance ended.

Defense attorneys have tried repeatedly to get the Court of Criminal Appeals to address the issue, but the court has declined on procedural grounds, saying Hood waited too long to raise the issue. Instead the court agreed to re-examine the question of improper jury instructions.

In December, defense attorneys filed a petition in December asking the U.S. Supreme Court to decide whether the intimate relationship between the judge and the prosecutor violated Hood's right to due process.

Last week, dozens of legal ethicists and prominent lawyers – including former Gov. Mark White and former FBI director and federal Judge Williams Sessions – asked the court to take the case.

Prosecutors declined to comment on the petition to the Supreme Court. Their response to the court is due next month.

The Fort Worth Star-Telegram carries the AP report, "Court throws out death penalty for Texas man," by Michael Graczyk.

Three of the nine judges dissented from Wednesday's majority ruling, where the court said it was wading "once more into the murky waters" of the Texas death penalty sentencing rules, where capital trial jurors are asked questions to decide whether a convicted killer should be put to death.

Hood was convicted in 1990, after the first of several precedent-setting Texas death penalty cases at the U.S. Supreme Court began refining those jury instructions but before the Texas Legislature could rewrite laws to bring instructions into high court compliance. In the interim, trial judges submitted deliberation questions, known as "special issues," to capital murder juries. Many of those death penalty sentences have since been thrown out on appeal.

And:

"This is all very awkward," Judge Cathy Cochran, writing for the majority, said. "Not only have the nine justices on the Supreme Court differed wildly in their view ... the nine judges on this court have differed in exactly the same manner."

Specifically in Hood's case, the court said the "nullification instruction" given to his jury wasn't sufficient for jurors to give "meaningful consideration and full effect to the mitigating evidence presented." That instruction, which the Supreme Court later would reject as confusing, told a jury to answer "no" to one of two special issues if it found mitigating evidence that warranted sparing a defendant's life.

At his trial, Hood's lawyers presented evidence of life-changing injuries Hood suffered as a 3-year-old when a truck backed over him. They also said he had been beaten as a child.

Appeals Court Judge Michael Keasler, joined by two colleagues in a dissent, wrote Hood's claim was late and improper.

"This is exactly the kind of behavior that the Legislature specifically sought to prohibit," Keasler said. "No 'conundrum' exists for Hood because he is simply not entitled to relief in any forum."

The Plano Star-Courier today carries, "Hood granted new punishment hearing."

In 2005, Hood challenged the instruction used in his case just prior to a scheduled execution. The Court of Criminal Appeals dismissed his challenge in early 2007, ruling that he was required to raise the claim in an earlier challenge to his conviction and sentence. Today, the court reconsidered its 2007 decision, determined that Hood was not required to raise the claim in an earlier challenge, and awarded him a new punishment trial.

The Independent has, "Death penalty thrown out over sex scandal," written by David Usborne, a follow-up on a report in yesterday's edition of the British newspaper, noted in this post.

The Court of Appeals in September ruled it did not see any reason to rescind the death sentence on Hood in spite of sworn admissions from both parties as to their secret liaisons and their failure to alert the defence to the fact at the time of the trial. It said Hood had taken too long to raise the matter.

That decision, however, caught the attention of legal experts countrywide. Last week a group of prominent former lawyers, judges and politicians, including a former FBI director and a former governor of Texas, petitioned the US Supreme Court to intervene in the case, arguing that the trial had evidently been tainted by its romance-novel subplot.

In its new finding, the appeals court oddly made no mention of the romantic entanglements of Judge Verla Sue Holland and the prosecutor, Thomas O'Connell. It was ordering a new hearing, it said only, because the jurors at the trial were given insufficient opportunity to consider an alternative punishment to the death sentence and cited the defendant's harsh childhood.

It seemed highly probable, however, that the growing furore over the inappropriate intimacies of the most important players at the trial – aside from the defendant himself – played some part in yesterday's reversal by the court. The Independent has been among newspapers to report on the controversy.

The flawed jury instruction is known as a Penry claim and relief is limited to the punishment phase of a capital murder trial.  The original post-Furman Texas jury charge for capital cases was ruled unconstitutional in 1989 in the case of Penry v. Lynaugh.  The Supreme Court determined in that case that juries were not allowed to fully consider mitigating circumstances. The jury charge was subsequently re-written by Texas lawmakers.

Andrew Cohen on the Hood Ruling

Andrew Cohen has expressed his outrage over the Hood case previously.  His latest comentary on the CCA ruling is, "The State of Texas: Third World Justice," posted at the Atlantic Correspondents blog.

It's been another extraordinarily bad stretch of days for those dwindling few lawyers, judges and politicians who stand ready still to publicly defend Texas's unjust, unkempt, and often unconscionable criminal justice system.

Things are so bad in the Lonsestar State, in fact, that the same officials who doggedly continue to believe "Texas Justice" is anything but an oxymoron-- those who would rather pester their colleagues in Congress for a change in the BCS college football rankings-- perhaps better start preparing for Congressional hearings or even a visit from investigators working for the International Committee of the Red Cross. Third-world justice in America, we all ought to agree, deserves a first-rate response.

First, there is the matter of Texas Court of Criminal Appeals Presiding Judge Sharon Keller.  Known as "Killer Keller" to defense attorneys around the country, her cold-hearted abdication of her responsibilities as a jurist in the capital case of Michael Richard has earned her international scorn. She is the judge who left court early one day to meet her repairman knowing that a last-minute appeal was on its way on behalf of Richard. With the court improperly closed, the appeal (on a live issue involving lethal injections) was never heard and Richard was executed. Last week, special state prosecutors pushed again for sanctions or some other punishment for Keller after getting nowhere in an earlier proceeding before one of Keller's judicial colleagues and cronies.

And:

Then, last Thursday, attorneys for Charles Dean Hood were forced to file a petition seeking the intervention of the United States Supreme Court to grant a new trial to a capital defendant whose judge and prosecutors had been secret lovers before his trial. Although a factual review of the circumstances confirmed the relationship, and the fact that neither the judge nor the prosecutor disclosed it to Hood or his attorneys, the state still refuses to order a new trial on the merits. Hood, however, did get some good news this week. On Tuesday, his sentencing hearing was deemed so patently unfair that even the Texas Court of Criminal Appeals overturned it and ordered a new proceeding.

Judges who leave court early for the day without protecting the last-ditch rights of condemned men. Judges who have secret affairs with prosecutors and then don't disclose them to the litigants before them. Prosecutors and judges who continue to fight against DNA testing even when it's the simplest route to the truth of a case. A prison system that tolerates and then covers-up widespread rape of young prisoners. Never mind all this earnest talk of seccession. In many ways, the Texas justice system, unrecognizable and unrepentant, already has left the Union.

Earlier coverage begins with the preceding post; all coverage, available through the Charles Dean Hood index.

Texas Defender Service on the Hood Ruling

Andrea Keilen, the Executive Director of Texas Defender Service, issued the following statement on the CCA's ruling in Ex Parte Hood, overturning Hood's Death Sentence.

"While today’s decision recognized a clear flaw in the punishment phase of Mr. Hood’s case, it should not distract the courts or the public from the more troubling issue at the center of this case: that the judge and prosecutor admitted under oath that they had a long-term, intimate sexual relationship prior to Mr. Hood’s trial, and that they intentionally kept this affair hidden for 20 years.  We, and dozens of legal ethicists and former judges and prosecutors, including former Texas Governor Mark White, former FBI Director William Sessions, and former Texas prosecutor Sam Millsap, are urging the U.S. Supreme Court to repair the damage the affair has caused and restore integrity to the Texas criminal justice system.  This case requires Supreme Court intervention because the Texas Court of Criminal Appeals to date has ignored this obvious and outrageous constitutional violation.  Mr. Hood is entitled to an entirely new trial before an impartial judge and prosecutor.  Today’s decision granting him a new punishment phase hearing does nothing to address or correct this egregious legal and ethical violation."

Earlier coverage begins with this post; all coverage, available through the Charles Dean Hood index.

The Independent Looks at the Hood Case

The Independent, a British broadsheet, reports, "The death row prisoner, the judge who sentenced him, and the prosecutor who was having sex with her," in today's issue.  It's written by David Usborne.

They are tough in Texas and perhaps it is not surprising there has been little sympathy for the whining of Charles Dean Hood about the odd "daytime soap" circumstances of his conviction back in 1990 for double murder. He is on death row in a US state that has no peer in its enthusiasm for executing prisoners.

The condemned and their lawyers will always look for ammunition at least to delay the moment of final dispatch. But Hood and his defence team have something slightly unusual to say and, even though the highest appeals court in the Lone Star State has still declared itself unimpressed, a remarkable array of the great and the good of the legal world are now pleading with the US Supreme Court to intervene.

The controversy is now garnering wider attention not least because it rests on a tale of illicit sexual trysts between the judge who presided over Hood's trial and sentenced him to death and the prosecutor who argued the case for conviction.

It is the stuff if not of a television soap, then certainly a bad romance novel. Both were married and both kept their affair a secret before, during and for many years after the trial.

There is keen interest also because it is Texas that once more finds itself under scrutiny for the alleged mishandling of a capital case. It risks becoming as infamous as the "sleeping lawyer" trial of Calvin Burdine whose death penalty was overturned 10 years ago because of the failure of his court-appointed lawyer to stay awake during the proceedings. But here "sleeping lawyer" has a different connotation.

Most importantly, in the eye of some legal experts, is the fact that the shenanigans of prosecutor and judge were kept secret from Hood's defence team. The judge, Verla Sue Holland, has since said she would have withdrawn from the case had she been asked to by the defence. But they didn't know to ask.

And:

Another loud critic of the handling of Hood's case is David Dow, whose work defending no fewer than 100 death penalty defendants over the years for the Texas Defenders Service, is outlined in his just published book, Autobiography of Execution. Once a supporter of capital punishment, Dow uses his widely reviewed new work to deliver a harsh indictment of capital punishment in Texas.

But now the affair, not a moment too soon perhaps, has reached the national stage.

In the wake of a request by Hood's defence team to the United States Supreme Court to overturn the Texas decision, a collection of no fewer than 21 former prosecutors, judges and politicians have filed a so-called "amicus" brief in support of Hood. Joining them in the unusual action were 30 of America's leading legal ethicists.

Earlier coverage of the Hood case begins with the preceding post; all coverage, available through the Charles Dean Hood index.  More on David Dow's The Autobiography of an Execution, here.

Blog Buzz Over the Hood Case

Adam Liptak's Sidebar column on the Hood case struck a nerve in the blogosphere. 

Michael Landauer posts, "Charles Dean Hood case a dark mark on Collin County justice," at the Dallas Morning News Death Penalty blog.

Bill Baumbach, a blogger in Collin County, has a great post with all sorts of links about the Charles Dean Hood case. You remember, the one where the judge was sleeping with the prosecutor, but no one seems to think that's a problem.

Bill's take:

The O'Connell/Holland 'affair' was no small lapse in morals. The affair itself was merely tawdry, but the lies and deceit that followed were serious violations of ethics and cast grave doubt on the ability of the Collin County Criminal Justice system to actually dispense justice.

Their affair casts doubt, not only on the conviction of Charles Dean Hood, but on unnumbered defendants. Our justice system was badly wounded by these two. Our taxpayers may face a huge financial liability. And there may be innocent people condemned by a process that was, by definition, unfair.

I have been outraged since this story came to light. My outrage is not solely directed at the illicit lovers but at the entire Collin County Bar, and the Judges and the Prosecutors who knew or strongly suspected that there was this unethical relationship between a judge and DA but stood by in silence as defendant after defendant was condemned by this duo.

At the Texas Tribune Morgan Smith posts, "Judges Gone Wild."

The New York Times seems intent on fast-tracking the Texas judiciary’s anointment as the national poster child for judges behaving badly. A Supreme Court appeal has breathed new life into a two-decade old scandal (this one with details a little less banal than a judge’s strict adherence to closing time) and inspired Adam Liptak’s latest legal column.

That would be the “sad and tawdry” affair, reported on by Texas Monthly in 2008, between the judge and the prosecutor in a 1990 death penalty case, where Charles Dean Hood was sentenced to death. The prosecutor, Thomas S. O’Connell Jr., was a man who “never stayed the night” and once gave his judicial paramour a chafing dish as a gift. The judge, Verla Sue Holland, went on to the Court of Criminal Appeals, where she served from 1996 to 2001.

Richard Connelly posts, "Quote Of The Day, From The Judge Who Had An Affair With A Prosecutor," at the Houston Press.

Back in our cub-reporting days, we knew both Judge Verla Sue Holland and prosecutor Tom O'Connell, both Collin County officials, and let us stipulate for the record that we could never, ever imagine them having sex with each other. But apparently they did.

The Texas Court of Criminal Appeals rejected Hood's plea last year; now he's asking the U.S. Supreme Court to rule. And a bunch of court documents have been filed in that case. The New York Times takes a look at it today and goes completely straight-faced and understated with the quote of the day, if not the year.

It comes from Holland's deposition

In her deposition, Judge Holland said she had lately become angry with Mr. Hood's lawyers for "annihilating my reputation." She said she had asked the attorney general's office to represent her in Mr. Hood's challenge to her conduct because she thought she needed to fight back. She was "tired of laying over," she said, and "getting licked without any input."

Tired of "getting licked without any input"? Most dames complain about the opposite!! HEY-O!!!!!

Above the Law's David Lat posts, "If the judge used to sleep with the prosecutor, is recusal required?"

We previously named Verna Sue Holland, a retired judge from Texas, an Ex-Judge of the Day. Now the ex-judge — or should that be “sex judge” — is back in the news.

Writes Adam Liptak, in the New York Times:

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case. It took Mr. Hood almost 20 years to establish that fact.

But he finally managed to force the two officials to testify about their rumored affair in the fall of 2008. They admitted it.

Sounds like a conflict of interest that would justify overturning the conviction, right?

Not so fast. Not in Texas.

Texas’s highest court for criminal matters, its Court of Criminal Appeals, considered all of this and concluded that Mr. Hood should be executed anyway. In a 6-to-3 decision in September, the court told Mr. Hood that he had taken too long to raise the issue of whether a love affair between a judge and a prosecutor amounted to a conflict of interest.

Mr. Hood has asked the United States Supreme Court to hear his case. On Thursday, 21 former judges and prosecutors filed a brief supporting him. So did 30 experts in legal ethics.

Question presented: whether a conflict of interest arising out of an affair between a judge and a prosecutor is vitiated if the affair was lousy.

When Gawker picks up a Texas death penalty case, it's a sure sign that dark matter is coalescing in the universe.  The post is, "Prosecutors and Judges May Bone One Another in Texas, No Problem."

The Texas Court of Appeals ruled that a condemned man's execution should go forward even though the judge in his case was sleeping with the prosecutor. And the judge in question has an unintentionally comical rebuke, for her detractors!

Judge Verla Sue Holland has had just about enough of this Death Row inmate, Charles Hood, "assassinating [her] reputation" (he's now appealing to the Supreme Court) just because she sentenced him to death after boning the man prosecuting his case. "She was 'tired of laying over,' she said, and 'getting licked without any input.'" Judge Verla Sue Holland demands input prior to being licked! Go, Texas!

The Seminal at FireDogLake has, "Can Lawyers Adequately Police Themselves?" by: Bill Egnor.  It's a must-read:

“Quis custodiet ipsos custodes?” Commonly translated as “Who watches the watchmen?” is the heart of the problem we face with in this country in regards to the rule of law. The law, in theory, is supposed to be about balance. This is why our version of Lady Justice is portrayed with scales and a blindfold. The concept is that Justice does not notice who you are, it merely judges the balance between claims.

For this to work, we must have judges and lawyers that adhere to the ideal of legal ethics. Ethics in the law can be summed up in in terms of loyalty; loyalty to the client, loyalty to the law and loyalty to the profession. This is very important as our system of law and justice has at its core the adversarial system.

This system is based on the idea that two advocates, arguing the facts before an impartial judge and or jury will be more likely to arrive at the truth of the matter than any other method. Given this zero sum game (one side wins, one side looses) there needs to be that loyalty to the law and the profession. Without it, there comes a win at any cost mentality, and then the scales of justice get a big thumb put on them.

It didn't escape Kansas City.  The Star's James Hart posts, "Death Row con wants new trial because judge, prosecutor had sex," at the Crime Scene blog.

Adam Liptak of the NYT has a great column about the case of Charles Dean Hood, who was sentenced to death by a judge who was, you know, having sex with the prosecutor. Amazingly, the Texas Supreme Court didn't think this was a big deal and let the man's conviction stand. (This is very broadminded of them, I feel.) The U.S. Supremes are getting ready to look at the case, and several prosecutors and judges have filed a brief supporting the convicted man.

Finally from the blogosphere, L Magazine has, "Texas Death Row Inmate Was Convicted By a Prosecutor Who Had Been Sleeping with the Judge; Has Appeal Overturned Anyway," posted by Mark Asch. 

Adding further credence to the whole "capital punishment cannot be administered in a constitutionally acceptable way" argument is this story out of Texas, state-sanctioned murder capital of America: in 1990, Charles Dean Hood was convicted of capital murder in a court presided over by a judge who had previously had an affair with the prosecutor.

Earlier coverage begins with the preceding post.  All coverage is available through the Charles Dean Hood index.

Rick Casey's Latest Take on the Hood Case

His column in today's Houston Chronicle is,"Best clue: The case of the erotic candy."

Former Gov. Mark White has joined 20 former judges and prosecutors and 30 legal ethicists in asking the U.S. Supreme Court to tell the Texas Court of Criminal Appeals the obvious:

That a judge who secretly slept with a district attorney can't preside over a death penalty case personally tried by the district attorney.

The Supreme Court has not yet agreed to hear the case, but I predict it will.

With all due respect to White and the other luminaries who last week filed briefs imploring the high court to take up the issue, my prediction is based less on their arguments than on a January ruling by the Supreme Court in another death penalty case.

This one didn't involve a judge, a prosecutor and their sexual affair.

It involved a judge, a juror and erotic candy.

White and the others want the Supreme Court to take the appeal of Charles Dean Hood, who was convicted of murder in 1990. Judge Verla Sue Holland and District Attorney Thomas O'Connell hid for 18 years the fact that they had engaged in a long-running affair while both were married. At one point, O'Connell denied the affair to Hood's defense attorneys.

But in 2008, the two ex-lovers were forced to testify under oath and admitted the affair.

A conservative Republican judge held a hearing on the evidence and ruled that Hood deserved a new trial — not because he could show actual bias by the judge, but because “it is the appearance of impartiality that is damaging to the public's confidence in the integrity of the judicial process.”

But the Texas Court of Criminal Appeals ruled that Hood had waited too long to bring up the affair.

Earlier coverage begins with the preceding post.  All coverage is available through the Charles Dean Hood index.

Next the blogosphere has lit up over Adam Liptak's coverage of the amicus brief

CCA Orders New Punishment Phase Trial in Charles Dean Hood Case.

Judge Cochran wrote the Court's opinion.  Judge Keasler wrote a dissent, which was joined by Judges Keller and Hervey.

AP's initial report is, "New punishment hearing for condemned killer," via the Houston Chronicle.  It's written by Michael Graczyk.

The Texas Court of Criminal Appeals has thrown out the death sentence of a convicted killer whose case has been dogged by admissions of an affair between his trial judge and the prosecutor.

The court, in a split decision, says Charles Dean Hood is entitled to a new punishment trial because jurors were not allowed to consider mitigating evidence that could have convinced them he didn't deserve a death sentence.

Wednesday's ruling makes no mention of the affair between the judge and prosecutor in Collin County in suburban Dallas. Last year, the same court refused Hood's appeal for an entire new trial.

As Graczyk notes, the ruling is on the basis of a Penry claim and is limited to the punishment; that the jury was not allowed to fully consider mitigating circumstances.  The Court previously rejected review of the conviction on the grounds that the trial judge and prosecutor had a secret romantic relationship (coverage of that ruling here, here, here, here, and here.)

Earlier coverage begins with this post.  All coverage is available through the Charles Dean Hood index.

There is a great deal more coverage of the Supreme Court amicus filed on behalf on Hood coming in the next post.

Adam Liptak on the Charles Dean Hood Case -UPDATED

The New York Times has posted his Tuesday Sidebar column online.  It's titled, "Questions of an Affair and a Fair Trial."

Charles Dean Hood was sentenced to death in 1990 by a Texas judge who had been sleeping with the prosecutor in his case. It took Mr. Hood almost 20 years to establish that fact.

But he finally managed to force the two officials to testify about their rumored affair in the fall of 2008. They admitted it.

Texas’s highest court for criminal matters, its Court of Criminal Appeals, considered all of this and concluded that Mr. Hood should be executed anyway. In a 6-to-3 decision in September, the court told Mr. Hood that he had taken too long to raise the issue of whether a love affair between a judge and a prosecutor amounted to a conflict of interest.

Mr. Hood has asked the United States Supreme Court to hear his case. On Thursday, 21 former judges and prosecutors filed a brief supporting him. So did 30 experts in legal ethics.

“A judge who has engaged in an intimate, extramarital, sexual relationship with the prosecutor trying a capital murder case before her has a conflict of interest and must recuse herself,” the brief from the ethics experts said. “Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.”

The affair itself, as described in the depositions of the two former lovers, sounded tawdry and sad.

UPDATE: The link above to the brief from the ethics experts appears to be broken.  The brief is here, in Adobe .pdf format.

And:

The Supreme Court has lately taken some interest in the integrity of the judicial system.

Last year, it ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

“The probability of actual bias on the part of the judge,” Justice Anthony M. Kennedy wrote for the majority, was “too high to be constitutionally tolerable.”

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift — a penis made of chocolate.

“From beginning to end,” the unsigned majority decision said, “judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”

To review the bidding: Campaign spending may undermine the integrity of the judicial system. The same goes for a gag gift of confectionary genitalia. But a love affair between the judge and prosecutor in a death penalty case is, in Texas, at least, another matter.

Earlier coverage of the Hood case begins with my commentary, Charles Dean Hood Case Returns to View.

Charles Dean Hood Case Returns to View

Diane Jennings reports, "Prominent attorneys seek Supreme Court review of Hood death penalty case," at the Dallas Morning Crime blog.  Here's her post:

A former governor, a former district attorney, a former U.S. attorney from North Texas, and the former director of the FBI are among a group of 21 lawyers who have petitioned the U.S. Supreme Court to hear a controversial Texas death penalty case.

The group, which was organized by the Constitution Project, is asking the court to hear the case of Charles Dean Hood, who was sentenced to death for killing two people in Collin County in 1989. Hood's case has garnered national attention not for the horrific crime, but because the prosecutor in the case had an intimate relationoship with the judge.

The Texas Court of Criminal Appeals has declined to address the merits of the case so lawyers are asking the Supreme Court to intervene. Among those who joined the brief are Kenneth Mighell who served as U.S. Attorney in the Northern District of Texas, Sam Millsap, who served as Bexar County District Attorney, William S. Sessions, who was director of the FBI and a federal judge, and Mark White, former Texas Governor who once bragged about his use of the death penalty in campaign ads.

The amicus brief is in Adobe .pdf format.  Earlier coverage of the Hood case begins with this post.  It is one of most sordid examples of Texas courts turning a blind eye to injustice.

I'm adding Charles Dean Hood to the category index.  After updating, all coverage of his case will be available through that link.

For years, when people heard the phrase, "sleeping lawyer," most knew it referred to a Texas death penalty case, whether or not they could identify the case of Calvin Burdine.  His court-appointed lawyer, Joe Cannon, repeatedly fell asleep during Burdine's capital murder trial.  Though neither the trial judge, who had appointed Cannon, nor the prosecutor made any comment about Cannon's dozing during the trial.  It was the jurors who discussed it, and eventually from them that Burdine's post-conviction attorney learned of the fundamental flaw.

The Charles Dean Hood case, the Plano HoodWink, with a romantic affair between the trial judge and the Collin County District Attorney, kept secret and undisclosed until 2008 -- 18 years after Hood's capital murder trial -- gives an entirely new twist to the term, "sleeping lawyer."

At nearly every turn, Texas officials have sought to bury this embarrassment through Hood's execution rather than confront the egregious misbehavior.   Once again, it may come to the U.S. Supreme Court to review a case that Texas courts have turned away.

When Procedure Trumps Justice

That's the title of Bennett Gershman's commentary for the National Law Journal.  Gershman teaches at Pace Law School and the author of Prosecutorial Misconduct.  LINK

What could be worse than a capital murder trial in which the trial judge and the prosecutor are having a secret love affair and, working in tandem, cause a defendant to be found guilty of murder and face execution? That incredible scenario happened to Charles Hood. On trial for murder in a Texas courtroom, Hood claimed — correctly as it turns out — that the judge and the prosecutor were having a sexual relationship during his trial and that his right to a fair trial was thereby compromised. A lower court agreed to the extent of ordering a hearing, but the highest appeals court in Texas reversed. Why? Because Hood failed to raise the claim in earlier pleadings, as he could not substantiate the "rumors" of the affair with sufficient proof and, therefore, according to the Texas appellate court, was procedurally barred from raising the claim now. The Texas prosecutor hailed the decision "as a significant procedural victory."

Interestingly, the prosecutor did not say that the defendant's allegation lacked merit because the prosecutor knew otherwise. Indeed, the judge and the trial prosecutor — a different prosecutor from the appeals prosecutor — acknowledged the love affair in sworn depositions taken after Hood's trial. Nor did the prosecutor say that justice was served, which is the legal and ethical mandate of every prosecutor. The prosecutor could not say this, of course, because Hood's right to a fair trial was almost certainly prejudiced by the affair, and the pursuit of justice, at the very least, should have informed the prosecutor that a hearing was necessary, as the lower court had ordered. Nor did the prosecutor appear to be troubled by the fact that the trial judge was later elevated to the same appeals court, and she sat with many of the same judges who denied Hood the opportunity to prove his innocence.

Of all the gamesmanship that prosecutors routinely play, one of the most alarming is to aggressively raise ­hypertechnical and attenuated procedural obstacles and hurdles that a defendant must overcome in order to get a court to listen to his often meritorious claim that the prosecutor committed misconduct. Indeed, the U.S. Supreme Court has characterized such prosecutorial conduct as "gambling" and "playing the odds" with a defendant's rights, playing "hide and seek" to avoid disclosure of exonerating evidence, and requiring a defendant to engage in "scavenger hunts" to find exonerating evidence of which the prosecutor is secretly aware but has suppressed.

And:

Procedural gamesmanship by prosecutors is not a new phenomenon. But with the increasing demands by courts for enhanced and much more rigorous pleading requirements — for example, the Supreme Court's decision last term in Ashcroft v. Iqbal — defendants like Charles Hood are going to find the gateway to justice littered with procedural hoops and mazes of sufficient magnitude and complexity that a defendant may be barred from establishing on the merits that a prosecutor engaged in prejudicial misconduct, that a fair trial was denied and that the truth was lost. And some prosecutors, like the prosecutor of Hood, will champion this result as a big victory.

Earlier coverage of the Hood case begins with this post.

More Commentary on Hood Ruling

"Ruling in Hood case degrades court system," is the title of a Dallas Morning News. 

Texas' highest criminal court's latest dismaying ruling in the scandalous Charles Dean Hood murder case can be interpreted with five words: "Anything goes in Texas justice."

The ruling somehow manages to waltz past the fact that Collin County's trial judge in the capital murder case had been cavorting in bed with the district attorney. Instead, the split decision by the Texas Court of Criminal Appeals turned on a procedural issue in letting the death penalty verdict stand against Hood.

The clearly compromised impartiality of the trial judge, Verla Sue Holland, thus is rendered legally beside the point, in contravention of the Texas Constitution.

This is not a plea to save the life of a man who may be innocent of the charges against him. Indeed, the state produced overwhelming evidence against Hood in the cold robbery and murder of Ronald Williamson and Tracie Lynn Wallace in Plano.

Rather, the issue is the integrity of the Texas court system and the appeals court's interest in flushing out the stench of corrupted justice. Sadly, the court has proved itself unwilling.

And:

A trial involving a nasty little secret between judge and prosecutor cannot produce justice. It's a stacked deck. The Texas Constitution guarantees fairness out of Texas courts, and it's a travesty that the state's highest criminal court doesn't see it.Prosecutors argue that the defense attorneys brought up the unfair-trial argument too late. But three justices did not buy that argument.

CBS News' legal analyst Andrew Cohen writes, "Texas Court Whitewashes Conflict of Interest Case," at the his CourtWatch blog.

If you want to know what I really think about the injustice Texas is currently perpetuating upon the person of one Charles Dean Hood, at left, let me put it to you this way: even if Osama bin Laden himself were on trial for mass murder, with Hitler, Stalin and Timothy James McVeigh as his co-defendants, I still would think it was wrong to allow a capital trial where the judge and the prosecutor were or had been lovers.

The Texas Court of Criminal Appeals Wednesday whitewashed -- poof, like pixie dust!-- one of the worst examples of conflict-of-interest I have ever seen. The same court that recently defied the United States Supreme Court dismissed in a three-page, fact-less, analysis-free opinion an appeal by lawyers for a convicted murderer who, like any one of us accused (or convicted) of murder, has a right to a fair trial by unbiased and professional agents of the government.

I have little sympathy for Hood. It may be that jurors in his second trial convict him as quickly as jurors in his first trial did. He may be guilty beyond all doubt, let alone reasonable doubt. I don't know. And really, it doesn't matter.

His guilt or his innocence does not and should not excuse the solemn duties of prosecutor and judge to grant him a trial free of even the perception of gross impropriety or unfairness. All of us deserve that right, including those of us who are accused of the most heinous crimes. In fact, those people probably need it most.

But this week a group of state court judges, with only one lone dissenter in the whole Lone Star state, gave a free pass to the trial judge, Verla Sue Holland, and the prosecutor, Thomas S. O'Connell, Jr., who handled the Hood murder trial.

The appeals court judges did so despite the fact that Holland and O'Connell had kept their affair quiet throughout the whole trial, which resulted in Hood's conviction of capital murder for the deaths of Ronald Williamson and Tracie Lynn Wallace. Judge and prosecutor didn't tell the truth until quite recently, in the past year, and only because they were under oath. Worse, when caught, they blamed Hood for not discovering their secret for 18 years.

And:

For example, it was this Texas appeals court that directly and deliberately defied the Justices in Miller-El v. Dretke, an infamous capital case involving racial discrimination in jury selection. The increasingly-frustrated Justices kept sending the case back down to Texas with instructions to better protect the defendant's rights. And the Criminal Court of Appeals kept failing to take the hint. I don't think I have ever read about or studied such open defiance, a lower court proudly disobeying the High Court, since law school.

You could argue that this case, the Hood case, is even more egregious than Miller-El or the sleeping lawyer case or even any of the clemency cases that then-Texas Governor George W. Bush and his legal counsel at the time, Alberto Gonzales infamously blew off during the 1990s. It will almost certainly become the next chapter in the Justices' battle with their Texas counterparts. It's hard for me to believe that at least five Justices won't want to intercede here and demonstrate their capacity for basic justice and integrity when it comes to a guarantee of a fair trial.

Earlier coverage of the Plano HoodWink begins with this post.  The CCA ruling is here; the dissent by Judge Cochran, joined by Judges Price and Holcomb, here.

More From Alan Berlow on Charles Dean Hood

"Ardor in the Court, Part 3," is the latest installation of Alan Berlow's reportage on the contorted Charles Dean Hood case.  It's subtitled, "A Texas court affirms the right of a judge and a prosecutor who slept together to condemn a man to death."  Here's an extended excerpt from this must-read:

If anyone had any doubt that the Texas justice system operates in a parallel universe, look no further than the latest decision by the state's highest court in the case of death-row inmate Charles Dean Hood. On Wednesday the Court of Criminal Appeals (CCA) said it wasn't interested in examining whether there was a conflict of interest in Hood's 1990 trial simply because District Attorney Thomas S. O'Connell Jr., Hood's prosecutor, had had a long-term sexual relationship with presiding Judge Verla Sue Holland, an affair the two tried to hide for 20 years.

In 1989, Hood was convicted of murdering Ronald Williamson and Tracie Lynn Wallace. The Holland-O'Connell affair was first reported by Salon in 2005, quoting anonymous sources. Judge Holland refused to either confirm or deny the affair at the time. A year ago this month, Holland and D.A. O'Connell, both since retired, acknowledged under oath that they had had a long-term sexual relationship, which was never revealed during more than a decade of appeals by Hood's lawyers. In her defense, Judge Holland said the affair ended more than two years before Hood's trial. But O'Connell also testified that the two had discussed marriage, and recalled that the affair continued as late as mid-1989 -- just before Hood's trial. He said the two continued to have a "good relationship," sans sex, during and after the trial. He said the two took a trip together in 1991.

Rather than address the affair directly, the CCA ruled 6-3 on a technical question, concluding that Hood should have raised the issue at his original trial. But Hood's lawyers couldn't prove the widespread rumors of the affair before Hood's trial. The CCA had earlier criticized Hood for failing to present any "personal knowledge" of the affair, a virtually impossible hurdle given that, as far as we know, there were no witnesses to the lovemaking other than the two principals, no Paris Hilton-style video, and the judge and her boyfriend weren't talking. The CCA also said Hood's claims were based on "rumor," not fact. But when Hood's lawyers were able to present the detailed facts of the affair, based on the confessions of the principals, the CCA said it was not interested in these facts.

Needless to say, some people have found the behavior of the since-retired judge and prosecutor, and that of the CCA, since Judge Holland was once a member of the very panel weighing her actions, more than a little unsavory. A score of legal ethicists concluded that the participation of the two at Hood's trial was unethical, unprofessional and unconstitutional, and the legal basis for a new trial self-evident. Hood's lawyers insist the affair rendered the conviction and death sentence invalid. Now they will have to convince a federal court that Hood has a right to a new trial.

Andrea Keilen, executive director of the Texas Defender Service, which represents Hood, said, "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. Yet the Court of Criminal Appeals is unmoved. We are outraged by this breakdown in the integrity of the justice system." John Rolater, an assistant district attorney for Collin County, which is pursuing the case against Hood, called the CCA ruling "a significant procedural victory."

Given the failure of a majority of the CCA to see any conflict of interest in the Hood case, it should come as no surprise that not one of the court's justices saw fit to recuse him- or herself from hearing arguments about Hood, despite the fact that eight of the nine justices had served with Judge Holland. Holland served on the CCA for nearly four years after leaving the district court where she presided over Hood's death sentence. Hood's lawyers presented evidence suggesting that some of the justices might have been aware of the affair.

In addition, the CCA's presiding judge, Sharon Keller, who has described herself as a "prosecution-oriented person," was tried in August before the State Commission on Judicial Conduct on five counts of judicial misconduct, including violations of due process in another death case in 2007. Advised by her staff that lawyers for death-row inmate Michael Richard -- scheduled to be executed that night -- needed an extra 15 minutes to file a final appeal, Keller had replied, "We close at 5." Richard was executed that night without having his appeal heard by the CCA. The outcome of Keller's misconduct proceeding should be announced soon.

Sadly, the conflicts of interest in the Hood case don't end with Judge Holland, D.A. O'Connell and the CCA. Before the Hood case reached the CCA, the case was briefly assigned to District Judge Robert T. Dry who presided over Judge Holland's divorce, and was a defendant with Holland's former husband in a million-dollar lawsuit. Dry issued several rulings unfavorable to Hood, including one that infamously scheduled a hearing for two days after Hood was set to die. Dry recused himself the day after I inquired whether his relationship with the Hollands created a conflict of interest. 

The state's ongoing effort to see that Hood is executed is spearheaded by Collin County District Attorney John Roach, who succeeded O'Connell. Roach and Holland both crossed party lines in 1982 to urge voters to reelect O'Connell, a Democrat. Roach and Holland had overlapping terms as Collin County judges for 15 years, and for most of that time O'Connell was the county D.A. Roach told the CCA that Hood's lawyers had been gaming the system to delay the execution, and that they "possessed a more than adequate factual basis upon which to raise his claim" about the affair long before Holland and O'Connell came clean. Among the evidence Roach cited were a series of motions and letters Hood filed -- without a lawyer -- which Roach acknowledged were based on nothing more than rumors, and various news reports about the alleged affair that quoted anonymous sources.

And:

Hood would almost certainly be dead had it not been for two people: Matthew Goeller, a former assistant district attorney under O'Connell, signed an affidavit in June 2008, stating that it was "common knowledge in the district Attorney's Office, and the Collin County Bar, in general," that O'Connell and Holland had a "romantic relationship." Taking note of this affidavit, District Court Judge Greg Brewer ruled in a highly unusual civil action that the failure of Hood's lawyers to develop hard facts about the affair was "squarely attributable to Judge Holland and Mr. O'Connell's deception and non-disclosure, rather than the lack of reasonable diligence on Hood's part."

Judge Brewer said that Holland and O'Connell failed in their "duty to disclose the fundamental conflict caused by their relationship," and that, "State officials prevented him [Hood] from obtaining concrete evidence of the Holland-O'Connell affair." Three of the CCA judges agreed with Brewer's analysis, concluding that the unsuccessful efforts of Hood's lawyers to obtain concrete evidence of the affair were due entirely to "the principal's longstanding efforts to keep the affair hidden." But they were outnumbered by the six members of the panel who decided to endorse the state's questionable prosecution of Charles Dean Hood, and write another episode in the lamentable saga of Texas justice.

You'll want to readBerlow's earlier Part 1 and Part 2 of the Ardor in the Courtroom.  Our earlier coverage of the Plano HoodWink begins with this post.

Additional Coverage of the Hood Ruling

"Judge-Prosecutor Affair, but No New Trial in Texas Death Penalty Case," is James McKinley's report in today's New York Times.

The highest criminal court in Texas ruled Wednesday that a man facing the death penalty for murder could not have a new trial despite a love affair between the prosecutor and the judge who tried his case.

In a 6-to-3 decision, the Texas Court of Criminal Appeals said the convicted man, Charles D. Hood, should have raised in earlier appeals the argument that the love affair had tainted his trial.

The affair had been rumored for years in Collin County, just north of Dallas, but was confirmed only a year ago when Mr. Hood’s lawyers compelled the judge, Verla Sue Holland, and the prosecutor, Thomas S. O’Connell Jr., to give depositions under oath. Both officials had since retired.

The case has stirred controversy across the country. Several former judges, prosecutors and experts on legal ethics have said that the affair makes it impossible to know if Mr. Hood received a fair trial and that it should be cause for a new proceeding.

But Wednesday’s decision overturned the findings of a district court judge who had found that Mr. Hood should be allowed a hearing on a new trial. The decision did not discuss whether the affair had prejudiced his first trial; instead, the court rejected Mr. Hood’s claim on the ground that he should have raised it when he first appealed his 1990 conviction.

Mr. Hood’s lawyers responded to that finding by saying they had long tried to substantiate rumors of the affair. They also accused the majority of ignoring confirmation of it in the testimony of Ms. Holland and Mr. O’Connell.

Ms. Holland went on to serve on the Court of Criminal Appeals with all but one of the current members. “This decision by a court where eight of the nine judges once shared the bench with Judge Holland will only add to the perception that justice is skewed in Texas,” said Andrea Keilen, executive director of the Texas Defender Service, which represents Mr. Hood.

As noted yesterday, the Court of Criminal Appeals order is here.  The dissent by Judge Cochran, joined by Judges Price and Holcomb, is here.

Chuck Lindell writes, "New trial denied in death row case," for today's Austin American-Statesman.

State law gives death row inmates one appeal, known as a petition for a writ of habeas corpus. Subsequent filings, such as the petition Hood's lawyers filed last year, cannot be considered unless they contain facts that were not available to lawyers exercising "reasonable diligence" in the first appeal.

Hood's lawyers failed to meet that standard, the court's unsigned opinion stated without elaboration.

Wednesday's ruling contradicted findings by state District Judge Greg Brewer of Collin County, where Hood was prosecuted. Brewer, assigned by the Court of Criminal Appeals to review the latest appeal, determined that Hood's lawyers demonstrated "extraordinary" diligence in confirming rumors that then-District Judge Verla Sue Holland and Thomas O'Connell Jr., the former district attorney of Collin County, had been having a sexual relationship before and during Hood's trial.

The judge and prosecutor strove to keep the affair secret, Brewer said, revealing the relationship only when forced to testify under oath in 2008.

But prosecutors argued that rumors of the affair were known to Hood's lawyers during his first round of appeals.

"Our argument is that they had this information and should have raised it in the earlier writ," prosecutor John Rolater, the chief of Collin County's appellate division, told The Associated Press.

Hood's appeals lawyer criticized the ruling.

"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," said Greg Wiercioch with Texas Defender Service. "Mr. Hood is entitled to a new trial before an impartial judge and a fair prosecutor."

Judges Cathy Cochran, Charles Holcomb and Tom Price dissented, saying they would have sent Hood's appeal to a lower court to explore the merits of his claim.

The Wall Street Journal Law blog has posted, "No New Trial for Texas Man, Despite Judge/Prosecutor Affair," written by Ashby Jones.

What makes the ruling perhaps a bit curious — a point made by the three dissenting judges — is that the affair was not confirmed until last September, long after Hood’s trial.

Defense attorney David Dow seized on that fact Wednesday, saying he was stunned by the ruling. When the Court denied a stay on the issue last year, said Dow, “it denied a stay because it said ‘There’s no proof. Come back to us when you have some proof.’”

According to Dow, he landed the proof, in the form of sworn testimony from the judge and prosecutor. “And what do they say?” Dow asked. “‘Tough, you lose anyway.”

The ruling came despite the fact that the lower court judge had recommended Hood be allowed to pursue the claim, going so far as to say the state’s “hands are unclean.”

"Appeal court denies Hood new trial," is Stephanie Flemmons' Plano Star Courier report.

The review of this issue began June 3, 2008, when Matthew Goeller, assistant district attorney in Collin County from 1987 to 1996, filed an affidavit testifying that “it was common knowledge” that Holland and O’Connell “had a romantic relationship” for several years, including the time of Hood’s trial. Goeller’s affidavit marked the first time that a former employee of the DA’s office was willing to speak on the record and under oath about the relationship.

Hood was scheduled to be executed June 17, 2008, but it was called off because prison officials did not have enough time to administer a lethal injection before the midnight death warrant expired.

In November of 2008, Judge Greg Brewer of the 366th District Court of Collin County was directed by the CCA to make a recommendation on whether Hood’s claim of an unfair trial was raised in a timely manner. In May 2008, Brewer determined Hood should be able to raise judicial bias claims and the affair between the judge and the district attorney violated his right to a fair trial.

Court records state Brewer claimed Judge Holland and O’Connell took deliberate measures to ensure that their affair would remain secret, and they did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationships.

Rod Dreher writes, "Texas in-justice rides again," at his Crunchy Con blog on BeliefNet.

Last time you heard from the Texas Court of Criminal Appeals was probably when Presiding Judge Sharon Keller refused to hear a last-minute appeal from an inmate set to be executed that night, because the office closed at five. Tough noogies, Mister! The man went to his death that n ight. That one set off a firestorm both in Texas and nationwide; Judge Keller is now fighting for her professional reputation.

Today the state's top appeals court has ruled in another death penalty case. At issue was whether the fact that the trial judge was secretly canoodling with the prosecutor resulted in the defendant (who was convicted and sentenced to die) receiving an unfair trial. The Lone Star jurists took a somewhat less than bold stance in the matter today.

"Hot Links: Can Texas use death penalty fairly?" is by Brooks Egerton at the Dallas Morning News Watchdog blog.

1. Charles Dean Hood may well deserve to die for murdering two people in Plano. But I'd feel a whole lot better about killing killers if I knew they got a fair trial. And that's very much in doubt here. The latest: Texas' highest court said yesterday that it's too late for the defense to use evidence that the trial judge and Collin County's DA were, um, romantically entangled. Defense attorneys tried to work this angle earlier but lacked evidence -- the affair, like most, was secret. But now they have admissions from former DA Tom O'Connell and paramour Verla Sue Holland.

2. The appeals court decision comes at a particularly difficult time for Texas' image. I recently summarized three other ongoing capital punishment embarrassments, including two in which there's real doubt about a convicted man's guilt. In one of those cases, the defendant has already been executed.

Earlier coverage begins here.

Texas Defender Service on the Hood Ruling

Here's the text of the Texas Defender Service news release:

TEXAS COURT OF CRIMINAL APPEALS OKS SECRET SEXUAL AFFAIR BETWEEN JUDGE ANDPROSECUTOR IN DEATH CASE

Court Ignores Sworn Undisputed Evidence of Hidden Relationship

Today, the Texas Court of Criminal Appeals, in a 6-3 decision,ignored evidence of a long-term, clandestine sexual relationship between the trial judge and head prosecutor in a capital case and dismissed the appeal of Charles Dean Hood.

In 1990, Mr. Hood was convicted of capital murder and sentenced to death for killing Ronald Williamson and Tracie Lynn Wallace in the same criminal transaction. His trial took place before the Honorable Verla Sue Holland of the 296th Judicial District Court of Collin County, Texas. Thomas S. O’Connell, Jr., the elected District Attorney of Collin County, actively participated in the prosecution of Mr. Hood. Though they failed to disclose it to the defense lawyers or Mr. Hood, Judge Holland and Mr. O’Connell had been engaged in a long-term secret, sexual affair.

“Today’s decision rewards the judge and prosecutor for maintaining a wall of silence about their affair for nearly two decades. Not until they were forced to testify under oath last year did the truth finally emerge. This decision by a Court where eight of the nine judges once shared the bench with Judge Holland will only add to the perception that justice is skewed in Texas -- that obvious and outrageous violations of the Constitution are acceptable in death penalty cases,” said Andrea Keilen, Executive Director of Texas Defender Service which represents Charles Dean Hood.

“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. Yet the Court of Criminal Appeals is unmoved. We are outraged by this breakdown in the integrity of the justice system. We will continue to vigorously litigate this claim of judicial bias. Mr. Hood is entitled to a new trial before an impartial judge and a fair prosecutor. ,” said Greg Wiercioch, Senior Staff Attorney with Texas Defender Service.

Neither Judge Holland nor Mr. O’Connell disclosed to Mr. Hood that they had been involved in an intimate sexual relationship in the years leading up to the capital murder trial. In fact, they hid or lied about the existence of the affair until being put under oath during depositions in this case in September 2008. Judge Holland never disclosed her romantic relationship with Mr. O’Connell to a single litigant or lawyer who appeared before her, and she never recused herself from a single case because of the affair.

The existence of such a relationship between a trial judge and prosecutor is a clear cut constitutional violation that has drawn significant ethical criticism. Thirty former federal and state judges and prosecutors delivered a letter to Governor Perry urging him to intervene and ensure that the court to conduct a meaningful review of the allegations of a secret romantic relationship between Judge Holland and Mr. O’Connell. The nearly 500-member Association of Professional Responsibility Lawyers and three dozen of the nation’s leading legal ethicists have stated that the relationship between Judge Holland and Mr. O’Connell constitutes a violation of Hood’s constitutional rights and called for an investigation and expedited discovery.

The review of this issue began on June 3, 2008, when Matthew Goeller, who was an assistant district attorney in the Collin County District Attorney’sOffice from 1987 to 1996, filed an affidavit testifying that “[i]t was common knowledge” that Holland and O’Connell “had a romantic relationship” for several years, including the time of Hood’s trial and death sentence. Goeller’s affidavit marked the first time that a former employee of the DA’s office was willing to speak on the record and under oath about the relationship.

Hood was scheduled to be executed on June 17, 2008, but the executioners called it off because they did not have enough time to administer lethal injection before the midnight death warrant expired. Shortly after, the trial judge conducted depositions and held a hearing, which lead to the admission of the affair. Eight of the nine judges on the Texas Court of Criminal Appeals served with Judge Holland on the Court of Appeals and did not recuse themselves from considering this case.

Earlier coverage begins here, with news of the CCA ruling.

The Return of the Plano HoodWink

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.

Judge to High Court: Get Serious

That's the title of Rick Casey's latest Houston Chronicle column.  It examines last week's ruling in the Charles Hood case.  LINK  Here's an extended excerpt:

When the Texas Court of Criminal Appeals last November referred a thorny question in the case of convicted murderer Charles Dean Hood back down to a Plano district judge, the state’s highest criminal court gave more than a hint as to the answer it wanted.

The high court had already rebuffed the efforts of Hood’s lawyers to determine the truth of persistent rumors that the judge who presided over Hood’s trial was having a secret affair with the Collin County DA who helped try the case in her court.

The Court of Criminal Appeals had ruled that a sworn affidavit by a former assistant district attorney that the affair was “common knowledge” at the time of the trial was not sufficient to require the now-retired judge and former district attorney to answer questions under oath about their relationship.

But Hood’s lawyers got creative. Suggesting that they might sue the former judge and district attorney, they obtained a judge’s order to take sworn depositions for the two under a rule that applies to potential lawsuits but not to criminal matters.

The result: Former Judge Verla Sue Holland (who later herself served on the Court of Criminal Appeals) and former DA Thomas O’Connell admitted under oath that they had engaged in a sexual affair, though they claimed it ended before the 1990 trial.

That put the Court of Criminal Appeals in a sticky place. They decided to postpone Hood’s execution on an unrelated matter and order Judge Greg Brewer to determine whether Hood’s lawyers had waited too long to prove the affair. The last paragraphs of the order more than suggested the high court’s stance.

Noting that Hood’s lawyers had claimed that the affair was “common knowledge” and that the trial attorneys were aware of it, the order stated that Hood “did not try to obtain proof of the affair until some eighteen years after his trial.”

The order also noted that the rule Hood’s lawyers obtained to get the confessions had been available in civil matters since 1999, but the lawyers “did not utilize this tool until after he was given an execution date.”

Brewer is a conservative Republican judge whose law-and-order orientation is suggested by his financial support of Rudy Giuliani in the last presidential race. But it turns out that Brewer believes that the law applies not only to defendants, but to judges and prosecutors.

In a lengthy finding, he was brutally direct.

The State cannot argue that the defense waited too long “because its hands are unclean: Judge Holland and Mr. O’Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship,” he wrote.

And:

In other words, a Plano judge told the Court of Criminal Appeals to quit squirming and uphold the honor of our criminal justice system, even if it means embarrassing a former colleague.

Coverage of the Judge Brewer's Finding of Facts and Conclusions of Law is here., with a link to earlier coverage.

Charles Dean Hood Did Not Receive a Fair Trial

That's the bottom line of State District Judge Greg Brewer's Finding of Facts and Conclusions of Law in the case of Charles Dean Hood.  The review came in spite of the state's best attempt to cover up and bury a long-secret affair between Hood's trial judge and prosecutor.

CBS News' analyst Andrew Cohen writes, "Not The End Of The Affair."

The last time we checked in on law and justice in Collin County, Texas, Matthew Goeller had almost single-handedly stopped an execution less than two hours before it was scheduled to begin. The former assistant district attorney had sworn under oath in an affidavit that the trial judge in Charles Dean Hood’s capital murder case in 1990 had been having an illicit affair with the prosecutor in the case.

Goeller’s belated act of courage - he had known about the affair for decades before he went public with the information - has begun to force the state of Texas, grudgingly it seems, to do the right thing. Hood’s scheduled execution was postponed. An appellate court authorized an honest review of the unthinking conduct of former judge Verla Sue Holland and former prosecutor Thomas S. O’Connell, Jr. On Friday, a judge formally confirmed Goeller’s story.

Holland, the judge, and O’Connell, the prosecutor, “were involved in an intimate sexual relationship prior to Hood’s capital murder trial,” reads the Collin County District Court order. Neither disclosed that fact to Hood or to his attorneys before, during or after the trial. In fact, Collin County District Judge Greg Brewer found the lovers, both of whom were married to other people, “took deliberate measures to ensure that their affair would remain secret” even when specifically confronted by others, including defense representatives, about their relationship.

Holland and O’Connell, the court ruled Friday, “wrongfully withheld relevant information from defense counsel prior to and during the trial, the direct appeal, the state habeas proceedings, the federal habeas proceedings, and the successive state habeas proceedings.” This, Judge Brewer unsurprisingly found, amounted to a deprivation of Hood’s constitutional right to a fair trial. So he recommended to his bosses at the appeals-court level that they grant Hood a new trial, 19 years after his last one, to fix a problem that is plain for all to see.

The Court of Criminal Appeals now has the matter and its record in capital cases is not a particularly auspicious one. This is the court, remember, that directly and deliberately defied the United States Supreme Court in Miller-El v. Dretke, an infamous capital case involving racial discrimination in jury selection. The increasingly-frustrated justices kept sending the case back down to Texas with instructions to better protect the defendant’s rights. And the Criminal Court of Appeals, and the 5th U.S. Circuit Court of Appeals, kept failing to take the hint.

Diane Jennings writes, "Old love affair gives death row inmate a new chance in 1989 Plano murder case," for the Dallas Morning News.

A judge has ruled that death row inmate Charles Dean Hood should get another chance to argue before the state's highest criminal court that he did not get a fair trial – even though it has been 19 years since his case went to court.

State District Judge Greg Brewer on Friday ruled that Hood had not waited too late to raise the issue of an improper relationship between the judge who presided over his trial, Verla Sue Holland, and then-Collin County District Attorney Tom O'Connell.

The state's "hands are unclean," said Brewer, who was instructed by the Texas Court of Criminal Appeals to examine the issue.

"It is the appearance of impartiality that is damaging to the public's confidence in the integrity of the judicial process," the judge wrote.

Hood was convicted in the 1989 robbery and murder of Ronald Williamson and Tracie Lynn Wallace in Plano. For years, his attorneys had tried to raise the issue of whether the relationship between judge and prosecutor had affected the trial, but his attorneys said they had little to go on other than speculation.

Hood came within a couple of hours of being executed last summer when his attorneys raised the issue again in a last-ditch effort as his death warrant expired.

A couple of weeks before Hood's June execution date, the defense attorneys found a former assistant district attorney who filed an affidavit indicating he was aware of the relationship.

Then in September, Hood's attorneys finally got the proof they needed by forcing depositions from the two parties under a civil procedure. At that time, Holland and O'Connell admitted to having a sexual relationship before Hood's trial, which had not been revealed to the defense at trial or during years of appeals.

Prosecutors claimed Hood had waited too long to raise the issue of judicial bias.

In November, after staying Hood's next execution date to consider another issue, and after the case received nationwide attention, the court of criminal appeals asked the lower court to make a recommendation on the timeliness issue.

"Judge deems death row inmate did not receive fair trial due to sex scandal," is Stephanie Flemmons report for the Plano Star Courier.  It was filed Friday afternoon, shortly after the document was issued.

A district judge ruled that a death row inmate did not receive a fair trial due to recent proof that the judge and the district attorney that tried the case were having a sexual affair.

In November 2008, Judge Greg Brewer of the 366th Judicial District Court of Collin County had been directed by the Texas Court of Criminal Appeals to make his recommendation whether convicted killer Charles Dean Hood’s claim of an unfair trial was raised in a timely manner.

Today, Brewer issued Findings of Fact and Conclusions of Law that concludes that attorneys for Hood discovered proof of Judge Vera Sue Holland and District Attorney Tom O’Connell’s secret, sexual relationship in a timely fashion and that Hood’s attorney are not at fault for not discovering this information earlier because the parties kept it secret for so long.

In his recommendation to the CCA, Brewer determined Hood should be able to raise judicial bias claims and that the affair between the judge and the district attorney violated his right to a fair trial.

Brewer found that Holland and O’Connell did not abide by their ethical and constitutional duties during the 1990 trial and conviction of Hood.

According to court records, Brewer states: “Judge Holland and Mr. O’Connell took deliberate measures to ensure that their affair would remain secret,” and “Judge Holland and Mr. O’Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship.”

In attempts to keep their affair secret, Brewer states “Mr. O’Connell misled habeas counsel during the successive state habeas proceedings and Judge Holland resisted counsel’s investigative efforts.”

The ABA Journal reports, "Appeal Over Judge-Prosecutor Affair Should Be Heard, Texas Court Finds."  It's by Martha Neil.

Not quite a year ago, Charles Dean Hood was on the verge of being put to death in Texas when an execution order expired. A few months later, a last-minute appeal was granted within hours of another scheduled execution.

Now he seemingly has some likelihood of overturning his conviction, based on an admitted long-ago affair between the judge and the prosecutor who tried his first-degree murder case. In findings of fact and conclusions of law filed today, a Collin County judge asked by the Texas Court of Criminal Appeals to consider whether Hood waited too long to pursue a habeas petition has found in his favor, both on this question and on the issue of whether Hood has a proper basis for a habeas appeal.

It was not the fault of Hood and his counsel that the affair between former Collin County District Judge Verla Sue Holland and former Collin County District Attorney Thomas S. O'Connell Jr. didn't come to light earlier, writes Judge Greg Brewer in his filing today. Both kept the affair secret, he writes, and Hood's defense team tried without success to substantiate rumors of the affair in 1995, 1996, 2005 and 2008.

Contacted by Hood's then-defense counsel, A. Richard Ellis, shortly before a 2005 execution date for Hood, Holland refused to comment about the alleged affair and O'Connell denied it, Brewer writes.

"Judge Holland and Mr. O'Connell wrongfully withheld relevant information from defense counsel prior to and during the trial, the direct appeal, the state habeas proceedings, the federal habeas proceedings, and the successive state habeas proceedings," Brewer finds. "Indeed, Mr. O'Connell misled habeas counsel during the successive state habeas proceedings and Judge Holland resisted counsel's investigative efforts."

After serving on the Collin County bench, Holland sat as a judge on the Texas Court of Criminal Appeals until 2001, Brewer notes.

Holland and O'Connell had a "duty to disclose the fundamental conflict caused by their relationship," he concludes. And, "in the face of rumors of an affair, Hood was entitled to presume that Judge Holland's and Mr. O'Connell's behavior—refusing to recuse themselves from cases Mr. O'Connell personally prosecuted in Judge Holland's courtroom—indicated that the rumors were false."

Earlier coverage begins with this November 2008 post.and this September 2008 post.

News Coverage of CCA Order in the Charles Hood case

"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.

The Texas Court of Criminal Appeals has sent the capital murder case of death row inmate Charles Dean Hood back to a district court yet again on a procedural issue.

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:

Meanwhile, the Court of Criminal Appeals has not ruled on the issue that led to a stay of execution granted to Mr. Hood over improper instructions that the jury may have received in his original trial. They will rule on whether jurors were given contradictory instructions on how to consider mitigating circumstances such as a convict’s family background or childhood abuse when considering the death penalty.

"Hood future rests with appeals court," is Stephanie Flemmons' report in the Plano Star-Courier.

The Texas Court of Criminal Appeals ordered District Judge Greg Brewer to recommend whether a convicted killer's claim of judicial bias was raised in a timely manner.

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.

The Latest on Charles Dean Hood

The Texas Court of Criminal Appeals has remanded the Charles Dean Hood case to state district court for a determination of whether of not the affair between trial judge Verla Sue Holland and District Attorney Tom O'Connell may be considered

The CCA case file is here.  Today's ruling is here.  An excerpt from the ruling:

On September 8, 2008, we received another subsequent writ as well as other motions in the case. In an order issued on September 9, 2008, this Court denied a motion to recuse and dismissed the subsequent application. We also determined that, because of developments in the law regarding nullification instructions, it would be prudent to reconsider the decision we issued in dismissing applicant's second subsequent writ application. See Ex parte Hood, 211 S.W.3d 767 (Tex. Crim. App. 2007). Accordingly, we granted his motion to stay his execution so that we could accomplish that task.

In the meantime, the 366^th Judicial District Court ordered Judge Verla Sue Holland and former District Attorney Tom O'Connell to give depositions pursuant to Texas Rule of Civil Procedure 202 (petition to take pre-suit investigatory depositions). In the depositions, both parties admitted that they had been intimately involved at one point in time. Although both parties stated that the affair had ended by the time of applicant's trial, the dates cited in the prosecutor's deposition seem to contradict this assertion.

Applicant now asserts that the new facts gleaned from the depositions satisfy the requirements of Article 11.071, § 5, and either this Court or the convicting court should be allowed to review the merits of his claim that the affair constitutionally disqualified the trial judge from sitting on applicant's case and deprived applicant of his right to a fair and impartial tribunal. We agree that the discovery of new facts may result in a ruling that the dictates of Article 11.071, § 5, have been met and may be followed by a remand to the trial court for a review of the merits of the claim.

However, before we determine whether the dictates of Article 11.071, § 5, have been met here, we order the trial court to first resolve another issue. Throughout the litigation in this case, applicant has claimed that the affair between the trial judge and the prosecutor was "common knowledge." Even applicant's trial counsel were aware of this "common knowledge." But applicant did not try to obtain proof of the affair until some eighteen years after his trial. He also asserts that he had to go to extraordinary measures to obtain the proof he now has. However, the method by which applicant obtained the evidence supporting his claim, Texas Rule of Civil Procedure 202, which provides for depositions before suit or to investigate claims, became effective January 1, 1999. Yet applicant did not utilize this tool until after he was given an execution date. Further, he has filed other applications raising the claim since the date that tool became available.

Accordingly, the trial court shall collect or adduce any evidence it deems necessary to make a recommendation on whether the doctrine of laches bars the consideration of applicant's claim. While the State has the burden on the issue, both parties should be allowed to be heard on the matter. The court shall also collect or adduce any evidence it deems necessary to make a recommendation on whether applicant meets the dictates of Article 11.071, § 5. The trial court's recommendations and the record of any proceedings conducted shall be returned to this Court within sixty (60) days of the date of this order.

The "doctrine of laches," referred to in the order is similar in concept to a statute of limitations in that it can bar judicial review due to timing.  It is a doctrine in Anglo-American law, however, not a specific written statute.  Here's part of FindLaw.com's legal dictionary entry:

['la-chez, 'la-, -shez]

pl: laches
Anglo-French lachesce laschesce negligence, from Old French lasche lax, ultimately from Latin laxare to loosen, from laxus slack

1: undue delay in asserting a right or privilege
(compare statute of limitations)

2 a: a doctrine permitting dismissal of a suit because a plaintiff's unreasonable delay in asserting a right or privilege has been detrimental to the defendant's ability to make a defense (as by resulting in the unavailability of witnesses or evidence)
Example: a suit barred by laches

Here's an excerpt from the Wikipedia entry:

Laches is an equitable defense, or doctrine. The person invoking laches is asserting that an opposing party has "slept on its rights", and that, as a result of this delay, that other party is no longer entitled to its original claim. Put another way, failure to assert one’s rights in a timely manner can result in claims being barred by laches. Laches is a form of estoppel for delay. In Latin,

Vigilantibus non dormientibus æquitas subvenit.

Equity aids the vigilant, not the negligent (that is, those who sleep on their rights).

To date, it seems that the CCA has made every effort to avoid confronting an injustice that has given criminal justice in Texas another black eye.  Earlier coverage of what I have called the Plano HoodWink begins with this September post.

I'm sure we will be seeing news coverage soon, and I'll post links.

Hood Case Bruises Texas Judicial Trust

That's the title of an editorial in Saturday's San Antonio Express-News.  LINK

When the November elections arrive, most voters will focus on the top of the ballot, especially the fierce battle for president.

But, when they scroll down further, they will confront other important choices — choices that are also vital to our democracy.

Among those choices will be the candidates seeking election or re-election to state and local judicial posts.

Why bother to worry about races that lack the excitement of the presidential campaign?

The answer comes from Collin County in East Texas.

Verla Sue Holland is a former district judge from Collin County. Tom O'Connell Jr. is a former Collin County district attorney. An affidavit filed by a former Collin County assistant district attorney over the summer alleges the two were engaged in a relationship for years during which O'Connell prosecuted cases in Holland's court. According to subsequent media reports, the alleged affair was commonly known.

The possibility that a prosecutor might have literally been in bed with a judge raises serious questions about the impartiality of justice dispensed in Holland's courtroom. Scores of convictions may now be challenged at great expense to taxpayers. Victims and their families will have to wait and may eventually be denied justice.

The biggest loss, however, is to the integrity of the judicial system.

Earlier coverage begins with this post.

Continued Fallout From Plano HoodWink

"Former Collin judge, prosecutor's intimacy may affect more than a single death row case ," is Diane Jennings report from the Sunday Dallas Morning News.

Recent confirmation of a long-rumored romance between a former Collin County district attorney and a former judge could lead to allegations of unfair trials in hundreds of cases, but legal experts differ over what should happen next.

In court depositions sought by attorneys trying to get a new trial for death row convict Charles Dean Hood, Judge Verla Sue Holland and prosecutor Tom O'Connell reportedly admitted to a years-long affair that Mr. Hood's attorneys say prevented him from getting a fair trial in 1990.

At least one other man, Timothy David Nixon, was found guilty of murder while Judge Holland was on the bench and Mr. O'Connell tried the case. He was sentenced to 99 years in prison for allegedly killing his mother.

Some legal ethicists say prosecutors have a responsibility to identify cases from the years the two held office and ensure that the convicted have their day in court. Others doubt that is the prosecutors' role.

"They do have a proactive responsibility," argues Robert Schuwerk, a University of Houston law professor who co-wrote the Handbook of Texas Lawyer and Judicial Ethics.

"The principal duty of a prosecutor under our system is not to convict but to see that justice is done," he said. "I would think that a prosecutor has the duty to either bring those cases forward or, at the very least, cooperate in establishing which cases were affected by this behavior."

And:

The number of cases that could be affected is unknown.

"It's premature at this point to confidently say that all these cases are going to be affected," said Mitch Nolte, president of the Collin County Criminal Defense Lawyers Association. "There's been no ruling on this case. ... And so, in legal terms, the issue's just not fully ripe."

Though difficult, it would not be impossible to identify the cases, said Tim Wyatt, public information officer for Collin County. "But no one to my knowledge has been asked to do it," he said.

The number of cases Judge Holland heard in her 15 years as a state district judge and while Mr. O'Connell was district attorney could number in the hundreds. But veteran attorney Keith Hampton, second vice president of the Texas Association of Criminal Defense Attorneys, expects the number of cases that could have been affected to be "relatively few."

"The devil is going to be in the details," Mr. Hampton said.

Also over the weekend, the Plano Star-Courier reported, "Hood's attorneys file petition for retrial," and AFP ran, "Romantic affair in murder case prompts call for new trial," via Google News.

Earlier coverage begins here.

When the Justice System Fails Us

That's the title of an OpEd by Collin County resident Bill Baumbach in the Dallas Morning News.  LINK  Here's an excerpt:

Dallas County District Attorney Craig Watkins told the press last week that he wanted to re-examine about 40 death penalty cases in his county. Mr. Watkins also said he would seek temporary stays of execution, if needed, until he completes the reviews of all Dallas County death sentences currently on Death Row.

Both Dallas and Collin Counties have been in the news lately for their handling of capital trials. Dallas County has seen a number of high-profile exonerations of innocent defendants convicted in an era of “win at all costs” prosecutorial misconduct. Mr. Watkins cited the case of Patrick Waller, who was convicted of a 1992 robbery-rape.

By the time Mr. Waller was finally cleared, the statute of limitations had run out on prosecuting the real perpetrators. Not only did an innocent man spend years in prison wrongfully, but the real guilty party got off scot-free.

Last week, Collin County District Court Judge Greg Brewer dismissed the murder indictment against Michael Blair. Mr. Blair was convicted and sentenced to die for the murder of young Ashley Estell in 1993. DNA evidence has since undermined the case against him, and the real child killer may never be identified.

Another death sentence may be reversed in the case of Charles Dean Hood, who was convicted and is scheduled to die in a case that has rocked the legal community. Twice now, Mr. Hood has come within hours of being executed after a trial prosecuted by the secret lover of the judge.

Collin County is well-known for its no-nonsense harsh sentences and vigorous prosecution of evildoers. Unfortunately, it appears that, at least some of the time, our zeal to convict has overrun our sense of justice.

This is a response to Dallas Morning News columnist Mike Hashimoto's latest, noted here.

Rick Casey on the Hood Case

Houston Chronicle columnist Rick Casey writes, "Judge-DA sex tale gets weirder," in today's paper.

When we last left the case of death row inmate Charles Dean Hood, a state district judge had ordered a hearing on whether to force the judge and district attorney in the case to give sworn testimony as to whether they were secretly lovers at the time of the trial.

Collin County District Judge Robert Dry set the hearing for Sept. 12, two days after Hood was scheduled to get the needle.

I guess you'd call that a Dry sense of humor.

Since that time, a number of extraordinary things have happened.

And:

Texas came very close to becoming, once again, a source of national amazement. We very nearly executed a man, only to learn days later that his judge and prosecutor had been lovers.

I couldn't help to wonder if, based on information learned by Assistant AG Connor from Holland, Attorney General Abbott had asked for the execution to be delayed (and possibly through some back channel alert Judge Dry and the Court of Criminal Appeals) in order to avoid just such embarrassment.

Abbott denied it Thursday. He said he was unaware of what Holland had told Assistant AG Connor before approving the brief.

So I guess it was just luck that the stars lined up, not exactly to save us Texans from embarrassment — some things aren't possible — but at least to mitigate it.

Earlier coverage begins with this post.

More Coverage of Hood

Diane Jennings writes, "Attonrey general defends actions in investigation of affair between judge, DA," in today's Dallas Morning News.

The state's top lawyer said Thursday that he had expected Texas courts to "step up and do the right thing" by investigating an affair between the judge and prosecutor in the trial of condemned killer Charles Dean Hood.

Only when they didn't, did his office publicly intervene in a case that he says "has called into question the integrity" of the Texas justice system.

Attorney General Greg Abbott's unusual public comments came as he responded to criticism in the formal court petition filed Thursday by Mr. Hood's attorneys seeking a new trial because retired Judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell admitted having a relationship that the defense says tainted Mr. Hood's right to a fair trial. The case has drawn attention from legal ethicists and death penalty opponents who say it has given the Texas criminal justice system a black eye.

Mr. Abbott said that though his office filed a "friend of the court" brief urging investigation into the allegations a few days before Mr. Hood's latest scheduled execution date in September, his office had been working behind the scenes since the allegations were first raised in court months earlier.

And:

"A real triggering event was when it was learned that a hearing was set to look into this matter days after the execution was set," he said. It was then that the former Texas Supreme Court judge took public action.

Apparently, some members of Mr. Abbott's own staff were unaware of his efforts in the Hood case. After the attorney general's office filed the "friend of the court" brief urging investigation into Mr. Hood's claims, an assistant attorney general who had been representing Judge Holland filed a complaint against him with the State Bar of Texas.

"That's what happens when people shoot first and ask questions later," Mr. Abbott said. "The person filing the complaint had no information about what me or the office had done months before representation of the judge was undertaken. We, including me personally, had already taken action in this case months before Judge Holland contacted our office for representation."

He said that when he learned the assistant attorney general had undertaken representation of Judge Holland, his office immediately told Judge Holland she needed to hire her own attorney.

"New affair details in inmate's appeal," is Chuck Lindell's report in the Austin American-Statesman.

Disclosing new details about the once-secret affair between his trial judge and prosecutor, lawyers for death row inmate Charles Dean Hood asked the state's highest criminal court for a new trial Thursday to remove the "deep shadow" of injustice in the case.

Hood's appeal sharply criticizes retired Judge Verla Sue Holland and former Collin County District Attorney Thomas O'Connell for refusing to acknowledge their yearslong affair until a state court forced them to testify under oath Sept. 8 and 9.

"That a judge charged with avoiding the appearance of bias and a prosecutor tasked with doing justice would allow their desire for secrecy to trump their sworn constitutional duties is a stunning display of arrogance and the corrupting influence of power," says the appeal, sent Thursday to the Texas Court of Criminal Appeals.

And:

But Hood's appeal, citing the depositions, says O'Connell met Holland in 1974 when he hired her as the juvenile court prosecutor for the Collin County district attorney's office. Holland left five years later to become a county court-at-law judge and, in 1981, became a state district judge.

Though a Republican, Holland endorsed Democrat O'Connell in his unsuccessful 1982 re-election bid. Their affair began shortly after the election, Holland testified.

O'Connell recalled the affair beginning in 1984 or 1985. Both said they were married at the time and took pains to keep the relationship secret, avoiding public displays of affection and limiting sexual encounters to each other's homes when their spouses were away, the appeal says.

They had different recollections of when the relationship ended. Holland said the romantic encounters stopped in 1987. O'Connell testified that the romance continued until mid-1989 or longer, the appeal says.

Hood's trial took place in Holland's court in 1990.  

Both testified that they remained "good friends" long after the physical relationship ended, taking a joint trip to Santa Fe, N.M., and attending Holland's family reunion in Branson, Mo., in 1991.

Steve Mills writes, "Judge, prosecutor's affair at center of death penalty appeal," in the Kansas City Star.

Holland said she never told anyone who came before her in court about the affair and, according to the new trial request, said she believes that it was “absolutely not” improper to preside over Hood’s trial.

But legal ethicists have said it was wrong for Holland to preside at Hood’s trial, saying it was a clear conflict of interest. They have criticized Holland and O’Connell for maintaining their silence about their affair even as Hood faced five execution dates, the most recent of them this past summer. He remains on death row.

Earlier coverage begins here.

News Coverage of the Hood Petition

Diane Jennings reports, "Death row inmate's lawyers request new trial, citing romance between judge and prosecutor."

As expected, attorneys for death row inmate Charles Dean Hood filed a petition today seeking a new trial for the condemned killer, claiming his original trial was unfair because of the recently revealed romantic relationship between Judge Verla Sue Holland, who presided, and then District Attorney Tom O’Connell, who prosecuted the case.

The petition also castigated the current district attorney, his “minions,” and the state attorney general for their actions in the case, which has been bouncing through criminal and civil courts since Mr. Hood’s execution was called off at the eleventh hour in June.

"The wall of silence that has long surrounded Judge Holland and Mr. O’Connell has finally come crashing down,” the filing said, referring to recent depositions in which Judge Holland and Mr. O’Connell confirmed their romantic involvement. “A fair and impartial tribunal is a bedrock requirement of due process.”

Mr. Hood, who was convicted for the 1989 killing in Plano of Tracie Lynn Wallace and Ronald Williamson, deserves a new trial because “Judge Holland created an appearance of impropriety and an impression of possible bias,” the defense wrote.

And:

John Rolater, assistant district attorney for Collin County, declined to comment on the petition, citing pending litigation.

The filing takes his office, which fought to keep the depositions from being taken, to task, saying, “Their actions have been marked by overzealousness that calls into question their adherence to their duty ‘that justice shall be done.’”

Mr. Rolater again declined to respond, saying, “Matters like this should be resolved in the court, not in sound bites.”

The petition also questioned the conduct of state Attorney General Greg Abbot, despite the fact that his office filed a “friend of the court” brief calling for an investigation into the relationship a few days before Mr. Hood’s last execution date. The state’s top lawyer criticized the defense at the time for raising the claim after 18 years of litigation.

“The attorney general’s cake-and-eat-it desires — to restore the public’s faith in judiciary while castigating Mr. Hood’s attorneys for not coming forward earlier with credible, compelling evidence of this furtive relationship — raise serious questions about his commitments to justice in this case.”

"New trial sought for killer in affair case," is the AP report written by Mike Graczyk, via the Fort Worth Star-Telegram.

"The truth was deliberately concealed in this case for nearly 20 years," attorneys A. Richard Ellis and Greg Wiercioch said in their request to the Texas Court of Criminal Appeals on behalf of Charles Dean Hood.

Hood won a reprieve from the court Sept. 9, a day before his scheduled lethal injection, but not because of the secret romantic relationship between his now-retired trial judge, Verla Sue Holland, and Tom O'Connell, the former district attorney in Collin County in suburban Dallas.

Instead, the Austin-based appeals court where Holland served as a judge in the late 1990s said it wanted to reconsider whether the jury instructions at Hood's 1990 trial were flawed. A ruling favorable to Hood could result in a new sentencing proceeding but not necessarily a complete new trial.

As Hood's execution neared, his lawyers alleged his trial was tainted by the unethical and improper relationship and won a court order forcing Holland and O'Connell to be questioned under oath. In depositions, the pair acknowledged they'd had a years-long affair.

"This revelation casts a deep shadow over justice in this case," Hood's attorneys said in their application for a new trial. "The wall of silence that has long surrounded Judge Holland and Mr. O'Connell has finally come crashing down."

The affair, they said, meant Hood's state and federal constitutional rights to an impartial trial were violated.

Attorneys for Holland and O'Connell have declined to discuss the' depositions, citing a gag order. Neither the judge nor the former prosecutor has been publicly disciplined by the State Commission on Judicial Conduct or the State Bar of Texas.

Earlier coverage begins here.

Charles Dean Hood - An Update

Texas Defender Service, counsel to Charles Dean Hood has issued the following statement.  The habeas petition is in the Breaking News Documents category in the right column.

Years-Long Affair Between Judge and D.A. Entitles Charles Hood to New Impartial Trial, Say Attorneys

Habeas Petition Filed Today in TX Court of Criminal Appeals Says Secret Affair Constitutionally Disqualified Judge Holland from Presiding over Mr. Hood’s Trial

(AUSTIN, Texas) Today, attorneys for Charles Dean Hood filed a Writ of Habeas Corpus in the Court of Criminal Appeals of Texas seeking a new trial in light of recent evidence that Mr. Hood’s rights to an impartial judge and a fair trial were violated in his capital murder trial. The petition cites sworn testimony of Judge Verla Sue Holland, who presided over Mr. Hood's trial in 1990, and former District Attorney Thomas O'Connell, who prosecuted the case, where the two admit to a secret, sexually intimate relationship that lasted for many years.

The petition states that in a deposition taken on September 8, 2008, in Collin County District Court in McKinney, Texas, Mr. O'Connell testified that the romantic relationship began around 1984 or 1985, that the romantic encounters continued until the middle of 1989, and may even have continued beyond that time, and that the two had even discussed the possibility of marriage. According to Mr. O'Connell, he and Judge Holland remained good friends, and he testified that they did not stop seeing each other until 1991 or 1992. For example, the pair went on a trip to Santa Fe, New Mexico in 1991 and he attended her family reunion in Branson, Missouri, the same year.

Judge Holland, in her deposition taken on September 9, 2008,  said that the romantic relationship began sometime in 1982 and the encounters ended in 1987, according to today's filing.

The petition details how Judge Holland and Mr. O'Connell "were determined to keep the relationship secret." According to Mr. Hood’s attorneys, when previously questioned in June 2005 prior to an earlier execution date for Mr. Hood, Mr. O’Connell actively misled Mr. Hood’s attorneys by denying that he had been in a romantic relationship. For her part, Judge Holland simply refused to cooperate with the investigation at the time.

“Mr. Hood survived five execution dates before the truth was disclosed,” the petition states. “No one should escape blame for this reprehensible record that has eroded the public’s faith in the integrity of the judiciary."

Today’s filing says that Judge Holland’s intimate sexual relationship with Mr. O’Connell constitutionally disqualified her from presiding over Mr. Hood’s trial and deprived Mr. Hood of his right to a fair and impartial tribunal. Accordingly, Mr. Hood’s attorneys ask the Court to grant Mr. Hood a new trial, or remand the case to the convicting court for further proceedings. 

In June, the Texas Court of Criminal Appeals dismissed Mr. Hood's judicial bias claim, which included an affidavit by a former district attorney who worked in the office with Mr. O’Connell, stating that the affair was “common knowledge.” That claim did not include the sworn depositions of Judge Holland and Mr. O'Connell, which leave no doubt the two were engaged in a long-term, secret romantic relationship. Mr. Hood’s attorneys are urging the Court of Criminal Appeals to grant a new trial in light of this new factual evidence.

Today’s filing cites the Texas Constitution: “The judiciary must strive not only to give all parties a fair trial but also to maintain a high level of public trust and confidence… Judicial decisions rendered under circumstances that suggest bias, prejudice, or favoritism undermine the integrity of the courts, breed skepticism and mistrust, and thwart the very principles on which the judicial system is based.”

Legal ethicists agree. Earlier this summer, the nearly 500-member Association of Professional Responsibility Lawyers and three dozen of the nation’s leading legal ethicists issued statements saying that the relationship Mr. Hood alleged between Judge Holland and Mr. O’Connell constitutes a violation of Mr. Hood’s constitutional rights.

Earlier this month, thirty former federal and state judges and prosecutors delivered a letter to Governor Perry urging him to grant a 30-day reprieve to Hood to allow time for a court to conduct a meaningful review of the allegations of a secret romantic relationship between Judge Holland and Mr. O’Connell.  Following the delivery of the letter, the Texas Attorney General’s office filed a brief in support of Hood’s request for a hearing, noting that the integrity of the Texas criminal justice system is at stake.

On September 9, 2008, the Texas Court of Criminal Appeals stayed Mr. Hood’s execution, which had been scheduled for September 10, on a procedural claim unrelated to the affair. The stay is limited to possible punishment phase relief and will not result in a new trial.

Earlier coverage of the case begins with this post.

Wait a Minute

That's the title of a Tuesday Houston Chronicle editorial subtitled,"A stay of execution for convicted murderer Charles Dean Hood raises troubling questions of judicial integrity."

Tuesday evening, 24 hours before he was due to be put to death by lethal injection, convicted murderer Charles Dean Hood was granted a stay of execution by the Texas Court of Criminal Appeals. In light of the serious questions raised about the fairness of his trial, that was the correct decision.

What was startling however, was that the court stayed Hood's execution for a reason completely unrelated to those questions. Meanwhile, they dismissed altogether the credible evidence that an improper relationship existed between the judge and prosecutor trying the defendant's capital murder trial.

Attorneys for Hood had argued that a clandestine romantic relationship between the judge, Verla Sue Holland, and prosecutor Thomas S. O'Connell Jr. in Hood's 1990 trial in Collin County just north of Dallas was grounds for a reprieve. But the court dismissed that pleading out of hand.

Instead, the justices revisited a ruling they made in a 2007 pleading in which they rejected Hood's request for a new sentencing hearing. In their latest ruling, the court cited "developments in the law regarding (jury) nullification instructions" as the rationale for stopping the scheduled execution.

This dismissal of substantiated evidence of judicial and ethical misconduct flies in the face of the Texas Constitution, which demands that a judge who presides over a case not only be absolutely impartial, "but must appear to be impartial so that no doubts or suspicions exist as to the fairness or integrity of the court."

And:

What is at stake now is not only his fate, but the integrity of the Texas judicial system. Now that the fact of a relationship between the judge and prosecutor has been established, the Court of Criminal Appeals should reconsider its denial of Hood's claims on this matter and grant him a new trial.

Hood may be guilty. But the public should not be satisfied on that point in the absence of a fair trial where the prescribed sentence for a guilty verdict is lethal injection. Even the most wretched murderer deserves to be tried before a judge whose impartiality is not impaired by an intimate relationship with the very prosecutor working to send him to death row.

Earlier coverge begins with this post.

Legal Experts Slam Texas Judge-Prosecutor Link

That's the title of an AP report on the Charles Hood case, via Google News.  LINK

Legal experts are harshly criticizing a former judge and an ex-Texas prosecutor, saying their alleged sexual affair while handling cases together represents a black eye to the system.

"It's such incredible bad judgment because it throws every conviction into doubt," said Fred Moss, a Southern Methodist University law professor.

An apparent open secret 20 years ago in Collin County legal circles, the alleged affair became part of the public record again last week.

Lawyers for death row inmate Charles Dean Hood sought a stay of execution in the nation's busiest death penalty state, arguing former Judge Verla Sue Holland was biased because of her relationship with ex-Collin County District Attorney Thomas O'Connell.

About 30 former prosecutors and federal and state judges have already signed a letter sent to Gov. Rick Perry arguing the alleged relationship had to be considered when it came to Hood, convicted in 1990 of fatally shooting two people in Plano.

The letter states that a sexual relationship, which Hood's lawyers say the judge and prosecutor acknowledged under oath during depositions last week, "would have had a significant impact on the ability of the judicial system to accord Mr. Hood a fair and impartial trial."

Hood received a reprieve, although the alleged affair was not the reason. The Texas Court of Criminal Appeals wants to reconsider whether the jury instructions were flawed.

"The appearance of impropriety is absolutely there and it does affect the integrity of the system," said Rick Hagen, president of the Texas Criminal Defense Lawyers Association. "And you can't deny that."

StandDown's earlier coverage begins with this post.

Additional Hood Coverage

"Latest tale of Texas justice rated E for embarrassment," was the Austin American-Statesman's Friday editorial.

Thanks to the Charles Dean Hood capital murder case, the Texas judicial system these days looks more like a Lifetime cable channel movie about the secret lives of people who wear dark suits and black robes — with a lot of leg showing — than a solemn institution trying to determine, fairly and objectively, guilt for a terrible crime.

As Texans learned this week, the state district judge in Hood's 1990 trial at which he was found guilty and sentenced to die, Verla Sue Holland, was personally involved with his prosecutor, Tom O'Connell, who at the time was district attorney of Collin County.

And:

The Court of Criminal Appeals on Tuesday suddenly stepped in to stop the execution, but not because of the Holland-O'Connell relationship. Instead, the court said, it wanted to reconsider whether the Hood jury had gotten proper instructions during the sentencing phase of his original trial, an issue the court had rejected previously.

This latest action by the Court of Criminal Appeals looks like an attempt to get this fiasco of justice out of the headlines while holding a fig leaf up for one of its former members and the court itself. This court probably isn't embarrassed, but it should be.

Dallas Morning News columnist Steve Blow wrote, "In affairs, some take pleasure in taking risks," for the Sunday paper.

Mr. Hood was convicted of a double murder in Plano. Now he's asking for a new trial because the prosecutor and the judge in his case were secret lovers.

They admitted it in court-ordered depositions last week.    

Former Collin County District Attorney Tom O'Connell and former state District Judge Verla Sue Holland differed only in when their romance ended.

But whether it continued during Mr. Hood's trial in 1990 or not, experts say the love affair was a major breach of legal and judicial ethics.

For now, Mr. Hood has received a stay in his execution while an appeals court considers another matter in his case. But the sexual relationship is certain to have wider impact than just his case.

"I think even as we speak, defendants and defense attorneys are looking back through their files," said Southern Methodist University law professor Fred Moss. "You are going to see motions to reopen cases."

The biggest question seems to be whether the romance will affect only the few cases Mr. O'Connell personally prosecuted, like Mr. Hood's, or the hundreds more handled by his assistants.

Mr. Moss said the argument could certainly be made that Judge Holland had an interest in seeing her lover's entire office succeed, not just his own cases.

Personally, I'm less intrigued by the legal questions than I am by the age-old mystery:    

Why do people do it?

"Outrage at Courthouse affair," is the ABC News web report by Scott Michaels.

It was unclear what the immediate impact of the affair would be for Hood or others, but lawyers expected that some other defendants who have been convicted in Holland's courtroom would attempt to challenge their convictions because of the reported affair.

"If I were a defense lawyer in a case over which this judge presided, I would be raising this. I think it's going to open the floodgates," said David Zarfes, an associate dean at the University of Chicago Law School who writes about legal ethics. "I find it shocking and disturbing. A man's life weighs in the balance here."

The letter from Hood's attorneys said the judge, Verla Sue Holland, who is now retired, and former Collin County District Attorney Tom O'Connell had differing recollections about when the affair ended and it was unclear if they were involved during Hood's trial. A former district attorney has said in a sworn statement that he believed the affair continued until 1993.

The parties are still under a gag order in the case, and lawyers for Holland and O'Connell did not return calls from ABC News.

It was unclear if Hood will be granted a new trial because of the affair. The Court of Criminal Appeals stayed Hood's execution, saying the jury may have received improper jury instructions.

It rejected Hood's appeal for a new trial based on the alleged affair, but Holland and O'Connell did not admit to the affair until after Hood's appeal had been filed.

Several legal experts have told ABC News that a sexual relationship between a judge and prosecutor under these circumstances would violate a defendant's right to a fair trial and would render the conviction invalid.

If that is found to be the case, the reported affair could call into question many other cases that O'Connell prosecuted in Holland's court. Holland was a Collin County judge from 1981 to 1997, when she joined the Court of Criminal Appeals. O'Connell was district attorney from 1971 to 2002, except for several years in the 1980s.

"It's not just shocking. It really reflects a complete disregard of the fundamental tenets of the justice system," Robert Cummins, the former chair of the American Bar Association Committee on Professional Discipline, said of the affair. Cummins earlier had signed a letter asking courts to fully investigate the allegations that Holland and O'Connell had an affair.

It was unclear how many cases could potentially be affected. The Collin County court clerk's office said it was still researching the number of cases O'Connell prosecuted in Holland's court during that time.

Earlier coverage begins with this post.

More from Alan Berlow on the Hood Case

I'm still playing catch-up from last week's travel.  Last Tuesday, I noted Alan Berlow's "Travesty in Texas," in this post.  Following the stay of execution, Berlow wrote, "A Legal Affair," for Atlantic.  It's another must-read; here's the opening:

Convicted double murderer Charles Dean Hood won a stay of execution on Tuesday, only hours after the judge who had presided at his 1990 trial acknowledged she’d been involved in a long-term intimate relationship with the district attorney who prosecuted Hood’s case. The ruling by the Texas Court of Criminal Appeals means that Hood is off the hook, at least for now. But the same can’t be said for the Texas justice system, which has seen some of its most egregious excesses exposed in the battle over whether Hood should live or die.

And:

The U.S. Supreme Court has held that the Due Process Clause of the Constitution requires that a judge “not only must be unbiased but also must avoid even the appearance of bias.” The Texas Constitution bars a judge from sitting in a case “where either of the parties may be connected with the judge, either by affinity or consanguinity.” As district attorney, O’Connell represented the State of Texas, the party seeking to execute Hood. The Texas constitution further states that, “Public policy demands that the judge who sits in a case act with absolute impartiality. Beyond the demand that a judge be impartial, however, is the requirement that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or integrity of the court.”

The Texas Bar Association’s rules of conduct require “a lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.”

The American Bar Association’s Model Code of Judicial Conduct provides that, “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” When there is doubt, a judge is obliged to disclose information that lawyers might consider relevant to the question of disqualification.

The Texas State Commission on Judicial Conduct is apparently looking into the case.

StandDown's earlier coverage begins here.

Another Take on the Hood Case

In yesterday's Sunday Times of London, Tony Allen-Mills wrote, "Sex scandal hits death row case."

A LEGAL scandal over a judge’s affair with a prosecutor in Texas has raised embarrassing new questions about the fairness of the state’s criminal justice system and its zeal for carrying out the death penalty.

Lawyers are demanding a new trial for Charles Hood, a convicted double murderer and death row inmate whose execution has been scheduled and postponed six times, most recently last Tuesday.

US legal scholars have been appalled by reports that Verla Sue Holland, the judge who presided over Hood’s 1990 trial, was at the time conducting a clandestine affair with Thomas O’Connell, the state attorney who was prosecuting the case. Several law professors agreed that however compelling the evidence in the case, it was unthinkable for a murder trial to proceed if the judge and prosecutor were romantically involved.

Earlier coverage begins here.

News Coverage of the Hood Stay of Execution

There is extensive coverage of yesterday stay of execution from the Texas Court of Criminal Appeals.  In today's New York Times, James McKinley reports, "Judge and Prosecutor Admit to Affair, Lawyer Says."

A judge and a prosecutor who handled the murder trial of a man sentenced to death here have admitted under oath that they carried on a secret affair for years, lawyers for the condemned man said Tuesday in a letter to Gov. Rick Perry.

On the same day, the highest criminal court in Texas postponed the man’s execution, which had been set for Wednesday evening — not because of the affair, but to reconsider whether the jury instructions were flawed.

In the letter to the governor, lawyers for the inmate, Charles Dean Hood, said the former judge, Verla Sue Holland, and the former prosecutor, Thomas S. O’Connell Jr., testified in depositions given late Monday and Tuesday morning that they had a romantic relationship for years.

“Judge Holland and Mr. O’Connell confirmed that they kept the relationship secret,” Mr. Hood’s lawyer, Gregory W. Wiercioch, wrote to the governor. “She never disclosed it to a single litigant or lawyer who appeared before her, and she never recused herself from hearing a single case because of her affair with the elected district attorney.”

“Similarly, Mr. O’Connell never disclosed the romantic relationship to any of his adversaries nor did he recuse himself or his office from prosecuting a single case because of his affair with Judge Holland,” Mr. Wiercioch added.

The letter said Judge Holland, now retired, and Mr. O’Connell had differing recollections about when the affair ended. It remained unclear if the two were seeing each other romantically during the trial in September 1990. Another witness, a former assistant district attorney, has said the affair continued until 1993.

The depositions came after Mr. Hood’s lawyers persuaded Judge Greg Brewer of District Court to compel Judge Holland and Mr. O’Connell to clear up years of rumors over their relationship.

“I don’t like the idea of anyone questioning our justice system,” Judge Brewer said as he handed down his ruling on Monday.

For years, rumors had swirled around Collin County, just north of Dallas, about a romantic liaison between Judge Holland, who was a district judge from 1981 to 1997, when she joined the state’s highest court, and Mr. O’Connell, who served as the prosecutor from 1971 until 2002, except for four years in the 1980s.

"2 admit affair in Death Row case: Texas judge, prosecutor kept secret for 2 decades; inmate nearly executed," is Steve Mills report in the Chicago Tribun.

Hood's attorneys said in their letter to the governor that the affair and the failure to inform Hood's lawyers of it were "a shocking and devastating indictment of the Texas criminal justice system."

Legal ethicists agreed. They said Holland and O'Connell had a duty to acknowledge the affair before trial, and the ethicists were aghast that they stood silent in June as Hood faced lethal injection. Supporters of the judge and prosecutor have said that their privacy was an issue.

"A relationship between a judge and a prosecutor, when a man's life is at stake? I can't understand how anyone could reach the conclusion that there's no bias," said David Zarfes, associate dean of the University of Chicago Law School and a scholar of legal ethics.

Lawrence Fox, a University of Pennsylvania law professor and a former chairman of the American Bar Association's ethics panel, said when the affair ended was unimportant. It was enough, he said, that Holland and O'Connell had engaged in a romantic relationship. He was one of 36 legal ethicists who signed a letter to the Texas courts and to Perry saying that such a relationship would be a conflict of interest.

Moreover, Fox said, it was outrageous that the pair refused to confirm the affair in June, when Hood was facing execution and lived only because of legal fighting. "This man would be dead," he said. "And these people stood silent."

A similar version by Mills appears in the Los Angeles Times, "Texas judge's sexual affair complicates death row case."  This is more Lawrence Fox, the noted legal ethicist:

Fox said too that acknowledgment of the affair likely would lead to challenges by other inmates who were prosecuted by O'Connell in Holland's courtroom.

"They must have handled many cases. And every one of them will be subject to a new trial," Fox said. "Any objective observer would say, 'Oh my God, you can't have that relationship going on.' "

In today's Dallas Morning News, Diane Jennings reports, "Texas death row inmate Charles Dean Hood granted stay of execution."

Condemned killer Charles Dean Hood received a stay of execution Tuesday afternoon from the Texas Court of Criminal Appeals – but not because the judge and prosecutor at his trial have admitted having an affair.

The state's highest criminal court instead said it would reconsider a decision it made in his case in January 2007. At that time, the court rejected a request that Mr. Hood get a new sentencing trial because jurors were given contradictory instructions on how to consider mitigating circumstances such as a convict's family background or childhood abuse when considering the death penalty.

At almost the same time the court was issuing the surprising stay of execution, Mr. Hood's defense team wrote to Gov. Rick Perry asking for a reprieve on different grounds: They argue that depositions taken Monday and Tuesday from retired Judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell show that the two had a sexual relationship that may have affected the fairness of Mr. Hood's trial.

"Judge Holland and Mr. O'Connell admitted under oath that they had an intimate sexual relationship for many years," the letter from Greg Wiercioch and A. Richard Ellis states.

"Judge Holland and Mr. O'Connell confirmed that they kept the relationship secret. She never disclosed it to a single litigant or lawyer who appeared before her, and she never recused herself from hearing a single case because of her affair with the elected district attorney."

Rumors about the affair have circulated since Mr. Hood's 1990 trial for the double murder and robbery of Ronald Williamson and Tracie Lynn Wallace in Plano. But defense attorneys did not raise the issue officially until June.

That's when a former assistant district attorney swore in an affidavit that rumors of the affair were common knowledge.

The AP report, via Google News, is,"Texas death row inmate gets execution postponed."  It's written by Schuyler Dixon.

A death row inmate whose lawyers argued a secret romantic relationship between the judge and prosecutor tainted his trial has won a reprieve — but not because of the alleged affair.

The Texas Court of Criminal Appeals postponed Charles Dean Hood's execution, scheduled for Wednesday, because it wanted to reconsider whether the jury instructions were flawed.

At the same time, the court dismissed claims Hood's attorneys filed that he was denied a fair trial because of what would be a legally unethical relationship between retired Judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell.

The reprieve came around the time Hood's lawyers sent Gov. Rick Perry a letter saying that Holland and O'Connell "admitted under oath that they had an intimate sexual relationship for many years."

"The intimate sexual relationship between the judge and the district attorney began several years prior to the trial of Mr. Hood," lawyer Greg Wiercioch said in his letter to the governor re-emphasizing his earlier petition for a 30-day reprieve.

"While Mr. O'Connell and Judge Holland have different recollections as to when the affair ceased containing an intimate sexual component, there is no doubt that the relationship was sexual in the years immediately leading up to the time that Judge Holland had jurisdiction over the case."

Attorneys for Holland and O'Connell said they were under court order not to discuss their clients' testimony.

The Texas Court of Criminal Appeals, the state's highest criminal court and where Holland was a judge in the mid-1990s, earlier this summer rejected Hood's efforts to appeal on the grounds of the alleged relationship, citing procedural reasons for the rejection but not addressing the merits of the accusations.

"Prosecutor and Judge in Capital Case Admitted Affair, Lawyers Say," is Debra Cassens Weiss' report for ABA Journal.

While the pair differed over the timing of the sexual component of their relationship, there is no doubt it was sexual in the years leading up to Holland’s jurisdiction in the case, the letter says. It calls the failure to disclose the affair “a shocking and devastating indictment of the Texas criminal justice system.”

The clerk for Collin County, where Holland was a judge, told the New York Times it was impossible to determine how many cases O’Connell had prosecuted before Holland. Collin County Assistant District Attorney John Rolater told the Dallas Morning News that “it’s fairly clear that this was over well before trial” and said his office would continue to defend the judgment and sentence in the case.

Earlier coverage is here.

Update on Hood Hearing

AP writer Schuyler Dixon files, "Lawyers attempt to halt execution, alleging affair," via the Fort Worth Star-Telegram.

Lawyers for a convicted killer who claim the judge and prosecutor were having an affair during his murder trial asked the state's highest appeals court Monday to halt this week's execution, saying the judge's extensive history of recusing herself from the prosecutor's cases shows a relationship between the two.

It was one of a handful of actions Charles Dean Hood's attorneys were taking in an effort to stop Wednesday's lethal injection he was sentenced to for the 1989 killings of an ex strip-club dancer and her boyfriend.

In a filing for a stay of execution with the Court of Criminal of Appeals in Austin, attorneys claimed that between 1997 and 2001 - when Judge Verla Sue Holland served on the appeals court - she recused herself in four of every five cases from Collin County. That's where Tom O'Connell was district attorney and where she had been a trial judge.

"Judge Holland's recusing herself at a rate nearly 160 times more than her fellow jurists cries out for an explanation," the filing stated. "The simplest explanation is the most plausible one: Judge Holland recused herself at such an off-the-charts rate, because she had previously been romantically involved with (D.A. O'Connell).

Holland and O'Connell have declined to discuss the accusations. Messages left Monday with attorneys for both were not immediately returned.

According to Texas Defender Service statistics cited by Hood's lawyers, Holland recused herself in 381 of 485 Collin County cases while on the Court of Criminal Appeals.

Meanwhile, efforts to depose the retired Holland and O'Connell, who's now in private practice, were on hold Monday as attorneys from both sides battled over jurisdiction. State District Judge Greg Brewer in Collin County could not rule on the request to depose them until another judge decides whether the case should be in state or federal court.

Hood's attorneys also have asked Gov. Rick Perry's office for a reprieve. They also were asking the attorney general's office to intervene and ask the governor to issue a reprieve, and to join them in their appeals court filing to stay the execution.

Earlier questions are here.

Judge Holland’s Shockingly High Recusal Rate Warrants Full Investigation into Alleged Affair with D.A

That's the title of a statement issued this morning by Texas Defender Service, which is representing Charles Hood in his battle to question former judge Verla Sue Holland and former prosecutor Tom O'Connell.  The most recent pleading filed in the case is in the Breaking News Documents in the right column.  Here's the TDS statement on the pleadings:

Attorneys for Charles Dean Hood filed an Application for Writ of Habeas Corpus and Motion for Stay of Execution (attached) today in the Court of Criminal Appeals of Texas with new data indicating that his rights to an impartial judge and a fair trial were violated in his capital murder trial.  During her tenure as a judge on the CCA (from 1997 to 2001), Verla Sue Holland recused herself from four out of every five cases from Collin County, where she is alleged to have had a romantic relationship with District Attorney Thomas O’Connell.  Hood is scheduled for execution on September 10.   

Data recently collected by the Texas Defender Service reveal that Judge Holland recused herself from nearly 80 percent of the cases coming from Collin County, where D.A. O’Connell was prosecuting cases and she previously served as trial judge.  In comparison, Judges Price and Keasler who – like Judge Holland – served on the district court bench before they were elected to the CCA, recused themselves in less than one percent of the cases that came from Dallas County, where they previously sat.  Court records show: 

--  Judge Holland recusal rate: 78.6% (381 recusals out of 485 Collin County cases).

--  Judge Price recusal rate:  0.42% (28 recusals out of 6,641 Dallas County cases).

--  Judge Keasler recusal rate: 0.50% (37 recusals out of 7,396 Dallas County cases).

“Judge Holland’s recusing herself at a rate nearly 160 times more than her fellow jurists cries out for an explanation, especially in light of the evidence Mr. Hood has previously presented in support of his judicial bias claim.  The simplest explanation is the most plausible one:  Judge Holland recused herself at such an off-the-charts rate, because she had previously been romantically involved with [D.A. O’Connell],” Hood states in today’s habeas application. 

Hood’s petition requests a stay of execution and a remand to the convicting court for further proceedings, including depositions or an evidentiary hearing where Judge Holland and Mr. O’Connell would be subject to questioning under oath.  If Hood’s claim is proven, his rights to an impartial judge and a fair trial were violated and his conviction and sentence are null and void.      

Hood’s attorneys also filed a Motion to Recuse eight of the nine judges on the Court of Criminal Appeals from hearing Hood’s habeas corpus petition because they served with Judge Holland and their personal knowledge of the facts may create the appearance of impropriety. 

Also today, Judge Greg Brewer of the 366th Judicial District Court in Collin County is expected to hold a hearing on Hood’s civil petition seeking permission to depose Mr. O’Connell and Judge Holland.  Both parties have been ordered to appear and be prepared to give sworn depositions, but scheduled hearing remains uncertain, because in an attempt to avoid giving depositions under oath, Judge Holland and Mr. O'Connell have asked a federal court to remove Judge Brewer’s jurisdiction over the case. 

Last week, thirty former federal and state judges and prosecutors delivered a letter to Governor Perry urging him to grant a 30-day reprieve to Hood to allow time for a court to conduct a meaningful review of the allegations of a secret romantic relationship between Judge Holland and Mr. O’Connell.  Following the delivery of the letter, the Texas Attorney General’s office filed a brief in support of Hood’s request for a hearing, noting that the integrity of the Texas criminal justice system is at stake. 

The nearly 500-member Association of Professional Responsibility Lawyers and three dozen of the nation’s leading legal ethicists have stated that the relationship between Judge Holland and Mr. O’Connell constitutes a violation of Hood’s constitutional rights and called for an investigation and expedited discovery.

On June 3, 2008, a former Collin County assistant district attorney filed an affidavit stating that “[i]t was common knowledge” that Judge Holland and Mr. O’Connell were having an affair, including at the time of Hood’s trial.  This affidavit marked the first time a former employee of the D.A.’s office was willing to speak on the record and under oath about the relationship. 

StandDown's earlier coverage begins here.

Christian Science Monitor Examines Hood Case - UPDATED

Warren Richey reports, "Did a judge-prosecutor romance taint Texas murder trial?," in today's Monitor.

The lawyer for a death-row inmate says he is trying to break a "conspiracy of silence" in Texas over whether the district attorney and the judge who presided over his client's 1990 capital murder trial were having a secret romantic relationship.

The inmate, Charles Dean Hood, is scheduled to be executed on Wednesday.

A Texas judge has ordered a hearing into the issue on Monday morning. The judge has also ordered the former judge and former district attorney to be prepared to answer questions under oath about their alleged affair and potentially surrender any documentary evidence of a relationship.

The unusual twists and turns in the Hood case are attracting national attention and adding fuel to an already-heated debate over capital punishment in Texas.

Mr. Hood's lawyer, Gregory Wiercioch, has been trying for months to persuade the Texas judiciary to investigate the alleged secret relationship. He says former Judge Verla Sue Holland and former Collin County District Attorney Thomas O'Connell may believe that their private relationship did not taint Hood's trial. But, he says, it should not be up to a judge and prosecutor to secretly decide such an issue – particularly when the defendant was on trial for his life.

"No attorney knowing [of this relationship] would have allowed her to stay on and preside over this trial," Mr. Wiercioch says. "I wouldn't want her presiding over a parking ticket, let alone a capital murder trial."

And:

"It is a matter of Texas courts turning an absolute blind eye to a situation that is in plain sight," says Steve Hall, director of the Standdown Texas Project, a criminal justice reform group. "Legal ethicists have been outraged by the facts. This should not even be a close call."

If true, the secret affair would violate ethics regulations governing both judges and prosecutors, legal experts say. In addition, these experts say, it would raise questions not only about the fairness of Hood's murder trial but also of the fairness of every criminal case charged by O'Connell's office and tried before Judge Holland during their alleged affair.

According to an affidavit by a former assistant district attorney in O'Connell's office, the Holland-O'Connell relationship began prior to 1987 and lasted until 1993. Hood was convicted and sentenced to death in September 1990 for the shooting deaths of a man and woman in Plano, Texas, in 1989.

The former assistant, Matthew Goeller, says in the affidavit: "It was common knowledge in the district attorney's office, and the Collin County Bar, in general, that the district attorney, Mr. Tom O'Connell, and the presiding judge of the 296th District Court, Judge Verla Sue Holland, had a romantic relationship." Mr. Goeller is a past president of the county bar association and of the county's criminal defense lawyers association. He worked in the district attorney's office from 1987 to 1996.

One court rejected the complaint

Holland isn't some back-county judge. From 1997 to 2001, she served on the Texas Court of Criminal Appeals, the state's supreme court for criminal matters.

When Wiercioch brought the Holland-O'Connell affair issue to the attention of that court in June, the judges voted 9 to 0 to toss the complaint out as an abuse of the writ of habeas corpus. The judges said Hood's lawyers should have raised the matter in an appeal filed in 1999. The judges also voted unanimously to allow Hood's scheduled execution to go forward on June 17. The death warrant, however, expired and the execution was postponed until Sept. 10.

Earlier coverage begins with this post.

Ashby Jones posted, "Big Hearing Monday in Wacky Texas Death-Penalty Appeal," on the Wall Street Journal's Law Blog, Friday afternoon.

To wrap up the week, let’s stay down in the Lone Star state and get you up to speed on one of the odder death-penalty cases we’ve ever read about.

It’s almost too nutty to be true: Lawyers for Charles Dean Hood (pictured), a convicted murderer set to die Wednesday, want retired state District Judge Verla Sue Holland and former Collin County District Attorney Tom O’Connell to be deposed about claims they had a secret affair during Hood’s trial. A hearing in civil court on whether to depose the two is slated for Monday. Here are stories from Reuters, the AP, and the Dallas Morning-News.

Holland, a former judge on the state’s highest criminal court, and O’Connell, now in private practice, have refused to address the allegations. The claim was first raised in an affidavit from a former assistant district attorney in O’Connell’s office.

In a move that surprised many, Texas Attorney General Greg Abbott on Thursday notified the court he would file a friend-of-the-court brief favoring a review of the allegations “to ensure that justice is certain and beyond question . . . as well as to preserve the integrity of Texas’ criminal justice system.”