Monday, June 30, 2008

Courts won't examine alleged judicial and prosecutor misconduct in Charles Hood capital murder case

The execution for Charles Hood has been re-scheduled for September, but there's still little indication that the courts will look into allegations of serious judicial and prosecutorial misconduct before he's executed. The prosecutor and the judge in this case allegedly were having an affair during his capital murder trial. Reported AP:

Hood's attorneys contend his trial judge and one of the prosecutors in the case were involved in an improper and legally unethical romance at the time that tainted Hood's trial in 1990.

Retired Judge Verla Sue Holland and then-Collin County District Attorney Tom O'Connell have declined to address the allegations.

The Texas Court of Criminal Appeals, the state's highest criminal court and where Holland was a judge in the mid-1990s, rejected Hood's efforts to appeal on the grounds of the alleged relationship, citing procedural reasons for the rejection but not addressing the merits of the accusations.

"It is now apparent that the principals involved in the conduct that forms the basis of ... Hood's claim of judicial bias will remain mute until Mr. Hood is executed," Hood's attorneys said in their latest motion to the trial court and the appeals court seeking to block the setting of the date.

Lawyers A. Richard Ellis and Gregory Wiercioch noted both Holland and O'Connell "have been remarkably silent" and neither has denied the allegations "that they were involved in an intimate relationship ... that they themselves took extraordinary measures to keep secret."

They also accused the pair of refusing to cooperate with Hood's investigation.

"This strategy of silence is understandable — if ethically and morally indefensible," the prisoner's lawyers said.

It's nearly unfathomable to me that Hood's execution might occur without the prosecutor and judge in the case ever being required to answer for the record whether they had sexual relations during his trial. In a reader survey last week, 87% of Grits readers (205 out of 235 respondents) said that if the prosecutor and judge were having a sexual relationship, he deserves a new trial. Ineffably, though, the Texas Court of Criminal Appeals did not agree.

To me this isn't an issue of being for or against the death penalty, nor even a question of Hood's guilt or innocence. It's more about preserving a semblance of integrity for the justice system. If the state's willing to enact its harshest punishment in such a case without even examining possible collusion by the judge and prosecutor (they don't call it "pillow talk" for nothing), it all but destroys the system's public credibility. It's one thing for the affair to have occurred at the time - that would represent mere misconduct by two individuals. But it's quite another for appellate courts to know of the allegations after the fact and still allow the execution to move forward without requiring they be vetted. That seems to put an official stamp on the repugnant idea that such conflict of interest could be tolerated.

Finally, if the affair is ever proven - and the principals do not deny it happened, they just don't confirm it - IMO Judge Holland and Tom O'Connell deserve at a minimum to be ridden out of the State Bar on a rail. No one should be licensed to practice law who conceals such information in a death penalty case.

RELATED: See Rick Casey's column on the Hood case, and from the Dallas News, see "Ethics questions in Charles Dean Hood case," in which the editorial board opines that:

The public deserves more than avoidance. This is more than a question of guilt or innocence of one man. Rather, the judiciary must recognize the cloud of suspicion that hovers and the need to clear the air.

Failure to do so risks casting doubt on the quality of justice for the entire period in which Tom O'Connell was DA and Sue Holland presided over cases brought by his office. The integrity of other cases is drawn into question, and that is an affront to a host of crime victims.


Anonymous said...

Oh calm down, Grits. Why in the world do the judge and the prosecutor have to cooperate with defense attorneys? Is there a subpoena?

The bottom line is that all the defense has is an affidavit talking about "common knowledge", i.e., a lack of personal knowledge. Without that, you just don't get to force people to submit to intrusive questioning.

Finally, the defense knew about this issue in 2005--yet waited until the last minute. Too bad.

Hood needs to be executed. The families have waited long enough.

Gritsforbreakfast said...

Since the Court of Criminal Appeals denied the defense a hearing on the topic, the answer is "no," there was no subpoena.

However, re: Why should the judge and prosecutor be required to cooperate? The answer is simple: Ethics. They allegedly committed egregious misconduct in a capital murder trial; if true, neither should ever practice law again.

Don't worry, though, they're apparently going to kill Hood soon enough. The CCA apparently doesn't cotton to delving into personal lives of their former colleagues. (Judge Holland was on the CCA after she left the bench in Plano.) If the family has to wait any longer, however, they've no one but the prosecutor and the judge to blame. Simply denying the allegations probably would have ended the controversy, but they haven't done so. Why do you think that is?

My hope is that some other defendant in prison convicted by this pair of alleged lovebirds goes back and uses the same evidence in their own appeal, which can't be avoided by just by killing the appellant. The truth needs to come out, whether or not it impacts Hood's case.

Anonymous said...

The truth in this case will be very, very painful to the entire Texas judicial system.

This questions the entire "good old boy" network that drives justice in this State. There is enougn unethical conduct going on every day to disbar half of the judges and lawyers in Texas.

I agree that enforcement of ethical conduct should have more teeth and truly wish a case like this could bring the problem into the light of day.

Anonymous said...

The issue at stake here is, If the Texas Criminal Justice System says they were wrong once, then other thoughts of mis-dealings may come to life. If that happens, it throws their whole wink, wink, nudge, nudge system into question.

Texas justice has never been so much about laws, then it has been about the powerful and the powerless.

Anonymous said...

Grits, that's an interesting standard--people are required to go on record about their private lives if there's some allegation, no matter how thinly supported--all for what, a last minute claim by a murderer. That may sound harsh, but usually before you hale third parties into court and require them to submit to grillings about their personal lives, you have something called evidence, not just an allegation.

And tell Dow that next time, he shouldn't wait so long before filing his last-minute claims--didn't he learn his lesson with Richard?

Gritsforbreakfast said...

Yeah, except that the claims aren't just by a "murderer," they're from a former ADA who was contemporaneously aware of the conflict. You don't like it, but it's not Hood's fault nobody believed him or checked out the claim when he first made the allegation years ago. Now somebody from the DA's office confirmed it. If it comes out after the fact the relationship really occurred (and the way these things go, somebody will rat them out after the execution if it's true), it will give the whole justice system a black eye for no good reason.

Bottom line: Why not hold one hearing and just ask the question? Do it now and they could still hold the execution in September. What's the harm? Or (my guess) are you just afraid it's true and don't want to face the consequences of what that might mean?

Gritsforbreakfast said...

Oh, and re the "last minute" claims, I know you're aware the ADA didn't come forward until the "last minute," but even so that lame argument won't wash now: Because of the recent delay there's plenty of time: what's more immediately lacking is ethics and courage.

Anonymous said...

Grits, it's so funny to see non-lawyers yammer about things. One thing you guys never seem to get is the concept of finality. This killer has had oodles of appeals, and then, very close to the execution, his lawyers decide to launch one last appeal on a claim they knew about three years earlier.

Why should convicted murderers get this kind of solicitousness from the courts? They shouldn't, and these appeals are an abuse of the process.

Apparently, you think that an allegation based on "common knowledge" is evidence enough to hold hearings etc., which would intrude into the private lives of two citizens.

As for whether I am afraid or not, well, I don't really care what you think. This case has gone on long enough--this guy did it, and the victims' families deserve to have this end. The defendants' lawyers held this claim until the last minute (and by the way, the issue is knowledge of the claim, not knowledge of evidence supporting the claims), and between the victims' families and Hood, who should pay the price for that tactical decision.

It was funny to hear your whining about these guys not cooperating with the capital defense counsel. I would tell them to go "f" themselves too.

May be word gets out that they had an affair; maybe it doesn't. After the big jab in September, no one is going to care except a few journalists and moonbats. Sorry, that's just the way it is. Does anyone care about Willingham or Luna any more? (I am not dismissing those issues, btw.) Nope. It will be the same here.

Anonymous said...

Charles Hood should be excuted for his crime.

Hood's lawyer should be disbarred or at least removed from the DP-qualified list for waiting until the last minute to pull this crap. Again.

After that cirus leaves town investigate the claims of the ADA and disbar/imprison the former judge. This has no bearing on Hood's guilt.

Gritsforbreakfast said...

"I am not dismissing those issues, btw"

Sure you are, 3:30, just like you're dismissing implications of the possible affair. They had their chance. We needn't care, right? What's the difference?

It's not a matter of not being a lawyer. In fact, lawyer's myopia is causing our judges (and perhaps you) to miss the larger picture. The justice system can't function once it loses credibility with the public and we're nearing that precipice rapidly.

There are tangible costs to law enforcement from that loss of credibility. E.g., to take a non-capital example, NYPD just began using written consent for traffic searches because judges and juries didn't believe the officers! A fellow from the DA's Association in Louisiana recently recently told an audience I was in that some of his members now support recording interrogations because of a case where jurors disbelieved a confession and thought it was coerced, letting the suspect in a quadruple homicide walk free. Sometimes to regain public trust when it's been breached, you must do more than is required to avoid even the appearance of impropriety - that goes double in this case since 8 CCA judges actually sat for a while with Judge Holland.

In Texas, the good ol' boy system will roll on for a while, you're right. But SCOTUS now sees bench slapping our courts as a hobby the way some view racquetball or jogging, and our justice system is a "laughingstock" (CCA Judge Tom Price's word) among the legal community, in other states and in the rest of the world. How long will such parochialism hold out? A while longer for sure. But it's no cause for celebration, and I doubt it will seem "funny" when the accumulated political bill comes due.

I was introduced to David Dow once, but I'm not sure I'd recognize him if he walked in the room so I can't speak for his tactics. Regarding the question of last minute appeals, I don't know why that's done. I've been told that the structure of the appellate process encourages it, but the ins and outs escape me. In the Bower case, e.g., his lawyers are saying "this is the first opportunity for a Texas court to seriously consider the merits of Bower’s innocence claim." Other than just massive backlogs, I've never understood why it should take so long.

That said, the result is permanent so that means it's worth taking all the time you need to get it right. Measure twice, cut once, says the carpenter. That should be especially true for what our friend at 3:30 calls "the big stab."

Anonymous said...

Grits, you're certainly entitled to your opinion about credibility, and I actually tend to agree with you from a philosophical level. But your outrage here is misplaced. There are fundamental limitations--one of which is that we don't subject people to intrusive claims absent some quantum of evidence. That's certainly not present here. You don't even recognize the point, nor do you accept that this guy has had a lot of appeals, and his lawyers did not file until the last minute.

But if you are concerned about the corrosive effect of shenanigans on the justice system, then too, you should be concerned with unfounded attacks as well.

I am not sure that SCOTUS sees "benchslapping" 5th Circiut and TCCA. Almost always, their position gets votes. Which is to be contrasted with the Ninth Circuit.

Gritsforbreakfast said...

"we don't subject people to intrusive claims absent some quantum of evidence. That's certainly not present here."

True only if you think the ADA who submitted the affidavit is a liar. Do you have any particular reason to think so besides the fact it might endanger the guilty verdict?

Anonymous said...

"Regarding the question of last minute appeals, I don't know why that's done. I've been told that the structure of the appellate process encourages it [...]"

Almost right. The system encourages it if all you have is a meritless class.

By waiting until the last minute, you force the court to grant a stay of execution while they respond to your claim.

There is no reason to wait until the last minute with a valid claim. Indeed every day you wait to file a legitimate claim is another day an innocent guy sits in jail.

Even in "quick" death penalty cases it takes years to actually execute the killer so most of the last minute claims contain nothing new of any substance. Therefore, Dow and others like him who file last minute claims are either failing to help their innocent clients or attempting to use the rules to "game the system."

The CCA has adopted new rules, effective immediately, to sanction lawyers who engage in this sort of behavior.

Anonymous said...

Grits, you dont have to believe the ADA is a liar. I'm sure he's not. But an affidavit about "common knowledge" of an affair is not evidence of an affair. It's simply rumor. The affiant had no personal knowledge of any facts.

Get it?

Gritsforbreakfast said...

I get it, 7:02. Unless someone was in the bedroom when the DA and judge had sex, according to you no one can ask about their relationship even if it was common knowledge. Does that sum it up?

Also, do you suppose that'd be the standard used if proving a sexual relationship were a means to a conviction instead of a mistrial? I don't.

There's enough here to ask the question, no doubt in my mind. If it's not asked in this case, as mentioned above, some other appellant should do it who doesn't have the execution deadline. The alleged relationship stinks, if true, and remaining silent in the face of such allegation stinks more. If it's a lie, say so. If not, admit your error. These folks were acting in their capacity as elected public officials. Nothing about it is a private matter.

Anonymous said...

Grits, I don;t think you get it at all. You see, the affiant had no personal knowledge, and that's kinda, you know, a bedrock requirement before we still subjecting people to the coercive power of subpoenas and the like.

And no, someone did not have to be in the bedroom or anything like that. There are ways, short of catching someone in flagrante delicto, to prove an affair.

There is bupkis to support a hearing. Bupkis.

Gritsforbreakfast said...

That's just wrong. Short of someone firsthand watching their liaisons, second hand knowledge by officemates is the only way such an affair could come to light.

As a general benchmark, I assume when folks in South Carolina begin to look down their nose at Texans over ethics, you know we've sunk pretty low, but as a South Carolina attorney wrote, "There should not be any doubt that an allegation of this nature calls the results of Hood's trial into question, and any standard of fairness should dictate that [if the allegations are true]a new trial is necessary."

He's right, there should not be any doubt. But without a hearing where the prosecutor and judge answer the question - it'll be a short hearing, just a yes-no is needed from both of them - there remains quite a bit of doubt thanks to the deafening silence of the principals.

The judge and DA have no one to blame but themselves if the truth comes out and the chips don't fall they way they hope. If they weren't having an affair, a hearing would clear the air of false accusations and allow the execution to go forward without a cloud over it.

Anonymous said...

I have been tracking this county, Plano - and its in Collin County. I have worked with alot of the TYC kids from this county and I agree with grits....something should be done to show the integrity of the judical system. I also hope someone reveals the complete disregard of ethics from the CCA and this county very soon. And "the family has waited long enough"....America has waited long enough for a fair and equal system. Maybe we should have a judge and an attorney sleeping together at your trial. If it doesn't make sense...then it probably ain't true....hopefully, the attorneys will take his case to the US Supreme Court and someone and the people will no longer turn a blind eye to injustice. You reap what you sow. Maybe they will sow exactly what they have been given here - very very soon.

Prison Writings, Interviews, and Art said...

This is what Charles had to say about this:

I hope it's OK to post a link, if not then please deltet it.
Thanks Dee

Anonymous said...

No, Grits, I am not wrong. What you don't seem to get is that the affiant needed to articulate FACTS from which an inference of a relationship can be made. This isn't even secondhand knowledge (otherwise known as a lack of personal knowledge)--it's the repetition of a rumor.

Now, if you want to argue that there's a life at stake, blah, blah, blah and that this shouldn't be a big deal for them to deny it, blah blah blah, then say that is more important to you than:

1) the fact that the defense attorneys could have raised this claim earlier, you know, the whole finality thing; and

2) that people can be subjected to intrusive state questioning based on someone saying that an affair was common knowledge.

But understand that's not how the law works. In order to get a hearing, you have to present more than someone saying, "Well gee, everyone knew they were having an affair." The next question is "Well, how do you know?" "Uh, I heard it, I guess." Then the next question would have been "Well, from whom?". You see how thin this is? And why didnt the defense attorneys ask these questions? Because they didn't want the affidavit to look thinner than it already is.

Second, finality is important. They;ve known about these claims for 3 years, but did nothing. Then they serve up some bullshit affidavit (without questioning the basis of the guy's "knowledge") and expect the court system to rip open a judgment. Yeah right.

Gritsforbreakfast said...

There's an easy way to find out if they had an affair: Ask them on the stand.

Re finality, yes, I'm saying ensuring the integrity of the justice system is more important than the unlikely or possibly slight delay that might be caused. Accusations of prosecutor/judicial collusion taint the whole process, whenever it comes out.

Re: intrusive questioning, these were public servants acting in their official capacities. OTOH, I'll bet if this were a criminal prosecution where proving the affair would be probative a judge would view the ADA's affidavit as sufficient to justify a search warrant. So that's a red herring.

If there was no affair, there's no harm in the courts asking the question. If there was, it should become known before the execution date.

Anonymous said...

In Texas, judges do not sentence people to death, only a jury can do that.

Wake me up when the DA has a concurrent love affair with all 12 jurors.

Gritsforbreakfast said...

Fine, 11:10, go back to sleep then!

Anonymous said...

Grits, you still don't get it. Yes, we can ask these people about it on the stand, but, and this is the big but, the evidence really isn't there. So doing so is problematic.

Let's say DCFS hears a rumor that I abuse my kids--no facts, just rumors. Do they have the right to put me under oath to deny rumors. Not in the society I want to live in.

As for finality, you don't get it. You say there's no harm, well, yeah there is. Namely the victims' families get to wait. That's why we make litigants raise things early and we penalize people for "sleeping on their rights". Waiver etc. is a big part of our law, and it's designed to ensure that people raise things in a timely fashion You can whine about that all you want. But, ya snooze ya lose, and Hood's attorneys snoozed.

I think the bottom line is that you simply ignore all the competing interests here. That's fine. But others don't.

Gritsforbreakfast said...

I don't ignore the competing interests, I just don't give them all the same weight you do.

Regarding your comparison child protective services, CPS definitely could go in on the basis of that level of complaint. Were you paying attention to what just happened in West Texas? Those search warrants were never (yet) overturned! If those pass muster, this evidence would. That's even more true because of the higher level of responsibility the judge and DA have as officers of the court, which is a lot different circumstance from CPS coming into my home.

If the prosecutor was sleeping with the judge, that's a more important finding than any single cases because it effects an entire generation of cases when they were both active in Plano.

You'd clearly prefer if no one ever went down that investigative road, and I understand why. But your anonymously expressed preferences aren't any more conclusive than the non-denials from the judge and prosecutor about the alleged affair.

Anonymous said...

An abuse outcry call made to a women's shelter is generally taken very seriously, even if some of the calls are later discovered to be frauds.

"I am child bride who is being repeatedly raped by my 52 year old husband"


"I heard my old boss was screwing the judge."

Absent other evidence, which of those statements are you going to take seriously? Are you suggesting the proper answer is "neither"?

Gritsforbreakfast said...

There were multiple search warrants in the YFZ case and of course you're only mentioning the one that's most favorable to your argument. The acutal comparison is:

"I saw what appeared to be teenage girls who were pregnant therefore they must be abused"
"When I worked for the DA, it was common knowledge the boss was screwing the judge."

Absent other evidence, the latter actually has more firsthand information and is more credible than the former. Try again.

Gritsforbreakfast said...

Also, in this case I don't think there exists the same threshold for your concerns about invasion of privacy because the inquiry is solely about activities (and alleged conflicts of interest) related to duties as prosecutor and judge. If the relationship was occurring, it violated their oaths of office. They have an added obligation as elected officials and officers of the court that don't apply to civilians. Elected officials don't get "privacy" to engage in official misconduct!

Anonymous said...

Well, I'll leave it at this--there are prerequisites to the ability to make people testify. An affidavit about rumors and zero personal knowledge ain't enough. On top of that, you have the delay in bringing up the issue.

That adds up to bye-bye for Hood.

Gritsforbreakfast said...

We can certainly agree that will be the excuse the CCA uses to avoid scrutiny of their former colleague's alleged romance.

However, I view the matter the same way the 5th Circuit just did another CCA smackdown this week:

"The facts before us are a core manifestation of a case where the state failed to provide a full and fair hearing and where such a hearing would bring out facts which, if proven true, support ... relief."

That's not an aberration, as the Hood case shows. It's just how they roll.

Anonymous said...

Well, Grits, it's funny how the law, i.e., a requirement of personal knowledge (which the affidavit doesn't come close to providing) as well as waiver by failure to raise issues in a timely manner, is just an excuse to you. The double standard is hilarious.

Gritsforbreakfast said...

This is all very "funny" to you, isn't it? You must have a macabre sense of humor, or a dull one.

The double standard's not mine but the courts', in particular the CCA. I disagree with how easy Texas courts make it to violate average people's rights like in the FLDS case, but if that gets to happen the same standards should apply to official misconduct.

Bottom line: IMO you simply want to cover up any possible misconduct and are leaning on the law as a weak excuse to avoid confronting the reality of what it would mean if the DA and judge were sleeping together. Perhaps we can agree to disagree about one another's motives.

Gritsforbreakfast said...

Speaking of double standards, did you notice that for Michael Richards the court closes "at 5," but for Charles Hood the CCA was up nearly till midnight trying to reinstate the execution?

There's a "double standard" for you!

Anonymous said...

I agree with Grits and for those of you who want to add links, say it is deserved...or Grits your missing the message...I guess its always someone else who is missing the message so you can prove your point. The message is, 1) There is an execution of a man. 2) There are double standards in play here. It was and is easily solid. If your so concerned that the evidence and "FACTS" will remain the same...then a FAIR trial should have happened in the beginning. 3) Regardless of how "delayed" the issue is is injust...and a new trial should be awared. The CCA isn't a court that has held the reputation of fair and just anyway. And yes, I saw the quickness in closing the doors at 5 and the same urgency in avoid and don't address. Will his lawyers take it to the US Supreme Court because apparently..this county, the CCA and some of these writers are very much ok with seeing injustice continue.

Anonymous said...

Grits your position is like Dick Cheney cherry-picking "intelligence" information.

You say the government should have been more suspicious of a claim that the religious followers of a convicted child molester were themselves molesting children.

On the other hand you say the government should give credence to Hood's claim, even though the timing is very suspicious and no evidence was offered to support the claim.

Your interpretation of events is skewed to fit your worldview. I guess that is true for everyone.

Anonymous said...

Grits, you mean you never heard of "funny funny" and "funny strange"?

In any event, with respect to the TCCA staying open for Richard, let's not forget that Richard's filing was last minute--he could have filed his lethal injection challenge years earlier. He did not.

The TCCA was available for the prosecution because the trial court acted that very night. Certainly, even you can see the difference.

But once again, it really is funny how the law is something to be brushed aside for the sake of a murderer who waited to long to file his claim. The law clearly requires more than an affidavit swearing to what was "common knowlede". There's just no getting around that. And even if you did, you still have the problem of the late filing, unless you think that criminals should be allowed to wait until their execution is imminent to inundate courts with [BS] claims.

Maybe you do. That's fine. Just admit it.

To be honest, if now, one of the alleged parties admitted the afffair, were I a judge, I would probably vote to keep the execution on track. I believe that people should not get more bites at the apple--the only exception I would make is innocence.

Gritsforbreakfast said...

Your final paragraph in the last statement is not only the most honest in this string, it clearly motivates the entire exchange. You don't care if the judge and DA had an affair and will justify any brand of misconduct as long as it gets the state another "Big Stab."

You should have said so in the first place and I wouldn't have wasted my time here.

Anonymous said...

Oh I do care. I just think that the law requires other than what you think. I would enforce waiver rules against capital defendants.

If the affair is proven true, they need to be disbarred.

Gritsforbreakfast said...

There's a starting point for agreement.

Anonymous said...


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"Change of Venue"