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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