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?Cohen raises a possibility I hadn't considered. Knowing what we now know, the Collin County DA could simply move to dismiss current charges against Hood in the interest of justice and seek to retry the case in front of a new judge, one who hopefully can contain their libido throughout the proceedings this time. That would be the right thing to do and it would spare the CCA the agonizing quandary they face now.
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.
It would also seem anticlimactic. Part of me would like to see the high court forced to make that decision. If there are CCA members who believe it's okay to execute a man even if the judge and prosecutor were sleeping together during the trial, I want them to put their reasons on the record for history to see, and to judge.
RELATED: Rick Casey from the Houston Chronicle has a column on the case.