Mark White, former governor of Texas and a death penalty supporter, recently wrote an op-ed in the National Law Journal calling for a new trial for Charles Hood, a Texas death row inmate whose trial was compromised by the fact that the prosecutor and the trial judge had been in an intimate relationship prior to the trial. As former Gov. White explained, “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 Texas Court of Criminal Appeals granted a new sentencing hearing for Hood on grounds of improper jury instructions, but refused to address the conflict of interest caused by the long-term, extra-marital affair. White writes, “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.” The former governor also voiced his concern about the fallibility of this system: “Hood’s case shows, at the most basic level, that there are huge flaws in our procedures and human frailties in the people who administer them.” Read full op-ed below.

March 26, 2010
Death penalty process must be fair

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 5 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.

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.

The Court of Criminal Appeals, rather than setting things right, issued a two-­sentence boilerplate denial of Hood’s judicial bias claim. We all want justice to be blind, but the whole world can see the Texas court’s foolishness in turning its back on the egregious breach of ethics in this case.

The passage of time doesn’t make it any less of a breach. The only thing for which we can be thankful is that an execution has not already occurred.

As governor of Texas, I oversaw 19 executions. This was a grave responsibility. I have seen frailties in the criminal justice system first-hand as a practicing lawyer and as an attorney general of Texas. Thus, before each execution, I reviewed in agonizing detail each individual’s case to be as certain as humanly possible that he had received a fair trial.

Hood was convicted of killing the couple with whom lived in Plano, Texas. I’m not saying he is innocent or guilty. I’m saying that the way we determine guilt or innocence in this country is with a fair trial, and defendant Hood did not receive one.

A BLOW TO PUBLIC CONFIDENCE
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.

During the past 20 years, DNA and other advances have gone a long way to hold criminals accountable, but modern science does not address every failing of the criminal justice system. Hood’s case shows, at the most basic level, that there are huge flaws in our procedures and human frailties in the people who administer them.

The U.S. Supreme Court should take Hood’s case to reinforce not only the standards that are to be applied in Texas courts, but in courts across the country, and strengthen the faith that the American people have in their judicial system. 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 governor of Texas from 1983 to 1987 and as attorney general of Texas from 1979 to 1983. In February, along with 20 former judges and former prosecutors, he filed an amicus brief in support of Hood’s petition for certiorari to the U.S. Supreme Court.

(M. White, “Death penalty process must be fair,” The National Law Journal, March 26, 2010). See New Voices and Arbitrariness.

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