A judge in Texas has recommended that the claim of an unfair trial brought by death row inmate Charles Hood should go forward because the trial judge and prosecutor had a secret romantic relationship that they hid from the defendant before, during, and after his trial. CBS News Legal Analyst Andrew Cohen reported on the story, writing, “Hood’s judge and prosecutor lied, over and over again, to hide their affair. Any blame for the delay in bringing justice to Hood is their fault, not his, and Texas would be better off acknowledging that now.” Judge Brewer of the Collin County District Court found that the trial judge and prosecutor, “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.” He recommended that Hood be granted a new trial.

The case will now be reviewed by the Texas Court of Criminal Appeals. Cohen’s full article may be read below:

Not the End of the Affair

CourtWatch: Capital Case in Texas Marred by Romantic Relationship Between Judge and Prosecutor

By Andrew Cohen

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.

Now that Judge Brewer has found facts that establish the affair, and the efforts of two sworn public servants to hide it, it’s hard to identify a legal theory upon which Texas or its appellate courts could rely in denying Hood a new trial. Is there a more direct conflict of interest, negating the duty of impartiality and integrity in the criminal justice system, than what Holland and O’Connell did? Would you want to be a defendant in those circumstances? Would you trust the judge’s rulings, or the prosecution’s conduct, or the interaction between the two knowing that your adversary and tribune had been shacking up?

It’s possible, I suppose, that the appellate court could reject Judge Brewer’s legal conclusion that Hood’s attorneys can push this matter further even though all of the relevant events took place 19 years ago. It’s even possible, I suppose, that the appellate court will reject the interpretation Judge Brewer gave to the facts before them. But such poor judgments surely would themselves generate an appeal, and another, and maybe even a Supreme Court review. And before you know it we’ll be five more years down the road without any finality or certainty for Hood or the families of his victims, Tracie Lynn Wallace and Ronald Williamson.

Texas might consider doing here what the Justice Department did in the Ted Stevens corruption case. Faced with evidence of prosecutorial misconduct, the feds simply walked away from the conviction they obtained. Texas wouldn’t need to go nearly that far - no one (except for Hood) is suggesting that he ought to be freed or that he is necessarily an innocent man. All Texas would have to do, saving time and money, is agree now that Hood can and should be tried again before an impartial judge and an honest prosecutor. There appears to be ample evidence suggesting Hood’s culpability.

Texas then could use the money it saves fighting against a new trial for Hood on ensuring that its judicial officials understand what a conflict of interest is, and how it can be avoided, why it’s never okay for a judge and prosecutor to be romantically involved when they are working on the same cases together and why, worst of all, it’s never okay to hide such a material fact from opposing counsel. Hood’s judge and prosecutor lied, over and over again, to hide their affair. Any blame for the delay in bringing justice to Hood is their fault, not his, and Texas would be better off acknowledging that now.

(A. Cohen, “Not the end of the affair,” CBS News, May 3, 2009). See Arbritrariness and Articles.

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