Tuesday, September 09, 2008

Ethicist: Judicial misconduct to blame for delays in Charles Hood case

Find below a guest post by Lawrence J. Fox, Professor of Law at University of Pennsylvania Law School and former Chair of the ABA Ethics Committee. He was one of the 36 legal ethicists who signed onto Professor Monroe Freedman's opinion stating that the romantic relationship between the judge and DA in the Charles Hood case created a "structural defect" rendering the conviction and sentence "invalid per se." Judge Holland will finally be deposed at 10 a.m. this morning.

Executing Justice in the Texas Courts

By Lawrence J. Fox

They did not execute Charles Hood on June 17. On that night, the State of Texas did the right thing for the wrong reason. The execution was postponed not to cure a grave injustice, simply because the State of Texas ran out of time. But the aroma of injustice remains just as strong as it did on that date. Mr. Hood now faces execution on September 10, and if allowed to go forward, that execution will place a black mark on the ethics of the judiciary and the rule of law, one that can never be erased.

How could this be? Because until a lawyer in the office that prosecuted Charles Hood came forward just days before the original execution date, there was no proof of what had been long rumored and this lawyer now confirmed: Thomas O'Connell, the chief prosecutor of Mr. Hood was – at that time – engaged in a personal relationship with Verla Sue Holland, the judge who presided at the trial.

Our canons of judicial ethics say that judges must avoid even the appearance of impropriety. But this conduct is judicial impropriety itself. Judges who are no more than close social friends with lawyers will recuse themselves from their friends' cases. The relationship that occurred here, of course, was so much more serious and objectivity-destroying than that example. No one can look at a case in which a judge is involved romantically with one of the lawyers and conclude that the judge is not biased. And that universal principle – echoed by dozens of ethics scholars who have looked into the Hood case – applies to every matter, from a garden variety civil suit involving mere money to a defendant who stands trial for a capital crime.

Then how, once this serious ethics violation was revealed, can the state of Texas proceed to execute Mr. Hood? Because the prosecution argues this issue should have been raised sooner.

Talk about placing the blame on the wrong party! The judge had a duty to disclose this juicy fact to Mr. Hood. If the judge failed, then the duty fell to the prosecutor, no matter how embarrassed he might be. But the two of them apparently were in an 18-year conspiracy of silence that permitted the judge to preside over who knows how many of O'Connell's cases. Yet these two public officials pay no price for their transgressions while Mr. Hood faces execution next month based on a hopelessly flawed trial.

Holland and O'Connell's silence remains deafening. To date, they have refused to discuss their relationship. And no one has heard their sworn testimony or conducted any discovery on the topic, steps that cry out to be accomplished before any execution can proceed.

Mr. Hood's attorneys filed a petition in August to compel the alleged lovers to testify under oath. After months of inaction, yesterday a district court judge finally ordered Holland and O'Connell to give their testimony. This presents the first real opportunity to bring down the wall of silence surrounding Holland and O'Connell's relationship. They must be compelled to disclose the truth. Were there any gifts? Any intimate dinners? Any faraway vacations on sandy beaches? We do not know.

We are obviously going to continue to have the death penalty in the United States. But if we are, we must do everything in our power to assure that every defendant who faces death (indeed, every litigant who appears in court) receives a fair trial before an impartial judge. Having Mr. Hood facing execution following a trial in which we are now told the judge was sleeping with the prosecutor makes a mockery of that standard and cries out for granting Mr. Hood a new trial.

There is a lot more at stake here than justice for one man. Our entire system of justice and our byzantine death penalty jurisprudence is put to the test by these revelations. Let us hope we pass.


Anonymous said...

Yes, let's DO hope we pass.

Regrettably, I don't have much hope in it. Let's face it folks. The "Great State of Texas" loves them some hangin's ... I doubt the fact that the entire system of law failing this one man is going to stop our barbaric practice...

And for those out there that want to flame me for these comments, Would YOU want this pair judging/prosecuting in a trial that you were the defendant in?

Anonymous said...

Goeller’s affidavit does not confirm that there was an improper relationship at the time of trial. Nor does this silly number of recusal argument. And as Fox states "no one has heard their sworn testimony." Talk about putting the cart before the horse!

Gritsforbreakfast said...

You'd have a stronger point, 10:50, if Judge Holland were willing to answer questions about the alleged affair and the reasons for all those recusals.

The whole point of this has been the prosecution wants an execution without thoroughly investigating these matters. THAT'S putting the cart before the horse!

Anonymous said...

This is just affair business is just a sideshow.

The evidence of Hood's guilt is so strong that even if he gets a new trial he'll probably still get a needle in the end.

I want to see a civil suit against the dang judge to reclaim all the taxpayer's cost for the both the new trial itself and the cost of incarcerating this killer between now and the time day he finally does gets whats coming.

Anonymous said...

And you would have a stronger point if you didn't play fast and loose with the facts. Nothing I stated was untrue; everything you did was. [Now is the part where you flame out in false indignation.]

Gritsforbreakfast said...

11:29, with what facts did I play fast and loose?

My last comment contained only two "facts": That Judge Holland refused to answer questions about the alleged affair until forcibly deposed, and that the prosecution wanted to execute Hood without forcing her to testify. Both seem inarguable. Which do you dispute?

To ponraul, the affair business may be a sideshow for Hood's case, but this pair presided over hundreds, possibly thousands of felony cases and the local legal establishment covered up for them. Only a case of this magnitude, apparently, is capable of smoking out what appears to be galling judicial and prosecutorial misconduct that spanned many years. I'm for vetting these allegations not because I care whether Charles Hood lives or dies, but because if this occurred it's a travesty and I see no other venue for holding Holland and O'Connell accountable.

Don said...

To anon 10:50: If you're going to call somebody a liar, you might want to pony up some examples. Everything Grits said was "playing fast and loose with the facts?" Doubtful. Nobody has to prove that there was an improper relationship just in order to investigate it. There's damn sure enough smoke to stir it around and see if there's some hot coals somewhere. I'm jealous that I couldn't hold my own with Scott Henson in a tete-a-tete debate too, so I know how you feel. But suck it up.

Anonymous said...

This affair between the Judge and the DA makes one wonder just how often this goes on in our courts. There have been some very cozy Judges and DAs seen in courts and the DA should not be allowed to walk into the Judge's Chambers and the two of them come out together laughing and talking all the time holding up procedings for the day. The has been witnessed and in a very unprofessional manner by the DA and the Judge.

The Judicial System in Texas is so corrupt, no wonder people who have been caught in this tangled web of deceit want to leave Texas for anywhere else.

Anonymous said...

We have to find a balance in the practice of law, giving people an asurance that is to protect and not to be abused.

Anonymous said...

Basically the concept of law is something that cannot be changed according to a persons will, but use in the way better fits to him.