Charles Hood's execution stayed: 11th hour recusal in case where judge accused of tryst with death penalty prosecutor

A former Texas Court of Criminal Appeals Judge's old CCA colleagues yesterday found procedural cause not to delve into her extra-judicial antics (Judge Verla Sue Holland was accused of carrying on a tryst with the prosecutor in a death penalty case when she was a trial judge), though the current judge then recused himself about an hour before Charles Hood's scheduled execution , delaying it indefinitely at the last minute. (CORRECTED: Reacting to initial reports, the original post misstated the details of the recusal.)

Whether or not Hood his guilty (and from all accounts of the evidence and the now-possibly tainted jury verdict, he likely is), that kind of gross judicial and prosecutorial misconduct cannot be tolerated in any legal venue, much less in death penalty proceedings. For my money if the allegations of the secret relationship turn out to be true, both Judge Holland and her prosecutorial paramour, former Collin County District Attorney Tom O'Connell, should be disbarred for concealing the affair in such a grave proceeding.

As for Holland's former colleagues on the Texas CCA, this was not your finest hour. Just in case you thought the rest of the country doesn't notice when you give a pass to your friend in such a high-profile manner, here's what CBS News is saying today about this case:

The Texas Court of Criminals Appeals, in three separate rulings Monday (which it requested not be made public), declared on procedural grounds that “rumors” of an intra-court, intra-trial romance aren’t legally sufficient to warrant a 30-day reprieve from Hood’s execution in order to allow his lawyers to investigate the allegations. The court ruled that because Hood’s investigator could not prove back in 1997 that there was an affair Hood now is barred from raising the issue today, on the eve of his execution. It also rejected Hood’s request for a delay because the wrong lawyer signed the appeal papers.

This is the same court, remember, that has repeatedly gone head-to-head with the United States Supreme Court in capital cases over the past few years - and lost. This is the same court that rubber-stamped a capital conviction in a case where another doomed defendant’s lawyer slept through significant portions of his trial. It is an incurious court which has demonstrated repeatedly it is more interested in serving as a processing center for executions rather than as an independent safeguard against government excess.

Even if you're a death penalty supporter you can't think it's a good thing for Texas' highest criminal court to rubber stamp executions with such obvious problems in the case, especially when there's a conflict of interest that might implicate them personally. You just don't use a legal technicality to avoid examining possible wrongdoing by your friend, not when somebody's life is literally hanging in the balance.

All of the recent SCOTUS-created restrictions on the death penalty - for juveniles, for the mentally retarded, in cases where black jurors were eliminated because of race - were established because of routine abuses, both real and perceived, allowed in Texas courts by the CCA. In each instance, SCOTUS found Texas' judicial practices so egregious it eliminated the death penalty or ordered new trials for large classes of defendants. I've often thought that if SCOTUS ever does wind up abolishing the death penalty entirely down the line, it might well be because Texas does the most executions and our courts aren't giving these cases enough scrutiny.

UPDATE: The CCA ruled later in the evening that the judge did not have the authority to stay the execution, but it was delayed anyway when TDCJ couldn't perform the deed by midnight. Governor Perry issued a 30 day reprieve in the case. Sounds like there was a lot of action last night - as one commenter pointed out, apparently for some causes, the Court of Criminal Appeals does work after five.

NUTHER UPDATE: At State of Mine, Texas Monthly editor Evan Smith posts a video interview TM did with Hood last week. The magazine's intrepid Mike Hall will be covering the story in an upcoming issue. AND MORE: Michael Hall gives a front-lines account of last night's yo-yo like legal proceedings surrounding Hood's ultimately delayed execution.