Texas' highest criminal appeals court on Wednesday ordered a lower court to examine why a death row inmate's attorneys waited nearly 20 years before claiming a sexual affair between the trial judge and prosecutor tainted the case.I understand the frustration people express, frequently in expletive-ridden blog comments, over last minute appeals by death row inmates. But this is an exceptional case involving a secret romance between the Judge and the DA that they intentionally concealed from the defendant and his counsel, not to mention the voters who elected both these officers of the court.
Charles Dean Hood's appeal will be considered by the Texas Court of Criminal Appeals after the trial court hearing on the admitted affair.
Allegations of the affair, an apparent open secret 20 years ago in Collin County legal circles, gained traction in June in the days before Hood was scheduled to die when a former assistant district attorney filed an affidavit saying it was "common knowledge" from at least 1987 until about 1993. The time frame includes Hood's trial.
Appeals stretched late into the night June 17 when Hood, a convicted killer, was to receive lethal injection and the Texas Department of Criminal Justice ran out of time to meet a midnight deadline to carry out the punishment. When the execution was reset for early September, the Austin-based appeals court stopped the punishment again, a day before the scheduled Sept. 10 execution, because of what it said were questions about jury instructions.
On Wednesday, the appeals court said the "discovery of new facts" in the suburban Dallas case could send the entire case back to the trial court for a review.
But it said before it made that determination, Hood's lawyers should be asked why they waited 18 years the trial to get proof of the affair between now retired Judge Verla Sue Holland and former Collin County District Attorney Tom O'Connell. They also should be asked why they didn't seek depositions or investigate the claims 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 Wednesday. "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 and they knew they had absolute ethical obligations to disclose their romance — which is why they kept it hidden. ... So now the court is saying: One of our judges screwed up badly, never disclosed this, so let's blame the victim."
The appeals court gave the trial court 60 days to collect evidence and make a recommendation on whether a legal rule known as the doctrine of laches meant Hood's lawyers surrendered the right to bring up the issue by not bringing it up sooner.
"What were they supposed to do?" an incredulous Fox said. "Go into court and say we've heard a rumor?
"You just don't do that. If you're going to go after a judge, you better have more than that or you're going to have your head handed to you. ... You can't punish the victim for not uncovering what somebody was hiding."
In court-ordered depositions in September, Holland and O'Connell acknowledged the affair.
Indeed, Judge Verla Sue Holland was later appointed to the Texas Court of Criminal Appeals, where she served with 8 of the 9 sitting high court judges. So it really looks shabby and untoward for her former colleagues at the CCA to continue to hunt around for excuses why they needn't examine the details of their friend's misconduct. That ship has sailed! The scandal has been admitted.
The CCA's handling of this case has been arrogant and self serving from day one. Last spring they refused to listen to Hood's complaints about the affair because it was only rumor and ordered him to the death chamber, where his execution was prevented solely by happenstance, not by any action of the court. Now they have the chutzpah to chastise the defendant for not bringing up unproven rumors earlier! Such hubris recalls one of my favorite lines from John Milton's Paradise Lost, in which the poet wrote that "they who have put out the people’s eyes, reproach them of their blindness."
The judge and DA had "absolute ethical obligations" to disclose the affair, according to the head of the American Bar Association professional responsibility committee. Unless a majority on the CCA believes otherwise (which would only barely surprise me), any tardiness by the defendant in raising this issue pales in comparison to the failure by state actors to disclose their secret, extremist misconduct long before now.
Which reminds me: Why haven't these two been disbarred yet? What do you have to do to lose your law license in this state?