[Hood's attorney David] Dow said he was stunned by the ruling. When the Court denied a stay on the issue last year, "it denied a stay because it said ‘There's no proof. Come back to us when you have some proof.'"The service came back with that proof – acknowledgement from the two principals that an affair had occurred, "And what do they say?" Dow asked. "‘Tough, you lose any way."The ruling came despite the fact that District Judge Greg Brewer had recommended Hood be allowed to pursue the claim, going so far as to say the state's "hands are unclean."Brewer said Hood's legal team exercised "reasonable diligence" during the years, and that prosecutors' claim that the defense had moved too slowly was not valid.
UPDATE: Here are links to the court's per curiam order and a dissent by Judge Cathy Cochran, joined by Judges Price and Holcomb. MORE: Best headline award on this story goes to Charles Kuffner who titled his blog post on the topic, "CCA gives its approval to hot judge-on-prosecutor action." AND MORE: From Michael Landauer at the Dallas News.
AND EVEN MORE: Andrew Cohen at CBS News writes:
You could argue that this case, the Hood case, is even more egregious than Miller-El or the sleeping lawyer case or even any of the clemency cases that then-Texas Governor George W. Bush and his legal counsel at the time, Alberto Gonzales infamously blew off during the 1990s. It will almost certainly become the next chapter in the Justices' battle with their Texas counterparts. It's hard for me to believe that at least five Justices won't want to intercede here and demonstrate their capacity for basic justice and integrity when it comes to a guarantee of a fair trial.
Some conflicts-of –interest are subtle. Some are minor. Some can be easily remedied, either before or after trial. But some are so patently obvious that they don't generally generate case law because no one defending such conflicts has the gall to raise the argument. This should be one of those times. Short of direct cash payments, after all, sex between judge and prosecutor during a capital trial is a fairly easy call: Thou Shalt Not. Except in the Hood case; except with this appellate court. Here we have case law. And Texas. And the death penalty. And a man who guilty or not still hasn't gotten a fair trial.
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