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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