Hood hearing canceled: Interpreting Judge Holland's recusals

UPDATE: Charles Hood's attorneys won remand of the case back to state court. Judge Greg Brewer has granted Mr. Hood's Motion to Take Depositions and has ordered Mr. O'Connell to be deposed immediately. Judge Holland is scheduled for deposition on Tuesday morning at 10 a.m. central time.

The hearing scheduled today was canceled that would have decided whether Judge Verla Sue Holland and former Collin County DA Tom O'Connell must submit to depositions regarding an alleged affair nearly 20 years ago during Charles Hood's capital murder trial. The pair of alleged lovebirds at the last minute asked the matter to be moved to federal court, reports the Dallas Morning News on its website.

Meanwhile, the Texas Defender Service today released significant circumstantial evidence that Judge Holland, once she ascended to the Court of Criminal Appeals, recused herself from Collin County cases 160 times more often than CCA judges from neighboring Dallas County. That implies there's some ongoing conflict of interest, which would be explained if the affair had occurred, and gives the courts and Gov. Perry a little more substance to hang their hats on. Here's a substantial excerpt from the TDS press release:

Judge Holland ’s Shockingly High Recusal Rate Warrants Full Investigation into Alleged Affair with D.A.

New Data Supports Charles Dean Hood’s Claim that Judge and Prosecutor at His Trial were Romantically Involved

(Austin , Texas ) Attorneys for Charles Dean Hood filed an Application for Writ of Habeas Corpus and Motion for Stay of Execution (attached) today in the Court of Criminal Appeals of Texas with new data indicating that his rights to an impartial judge and a fair trial were violated in his capital murder trial. During her tenure as a judge on the CCA (from 1997 to 2001), Verla Sue Holland recused herself from four out of every five cases from Collin County, where she is alleged to have had a romantic relationship with District Attorney Thomas O’Connell. Hood is scheduled for execution on September 10.

Data recently collected by the Texas Defender Service reveal that Judge Holland recused herself from nearly 80 percent of the cases coming from Collin County , where D.A. O’Connell was prosecuting cases and she previously served as trial judge. In comparison, Judges Price and Keasler who – like Judge Holland – served on the district court bench before they were elected to the CCA, recused themselves in less than one percent of the cases that came from Dallas County , where they previously sat. Court records show:

• Judge Holland recusal rate: 78.6% (381 recusals out of 485 Collin County cases).
• Judge Price recusal rate: 0.42% (28 recusals out of 6,641 Dallas County cases).
• Judge Keasler recusal rate: 0.50% (37 recusals out of 7,396 Dallas County cases).

“Judge Holland’s recusing herself at a rate nearly 160 times more than her fellow jurists cries out for an explanation, especially in light of the evidence Mr. Hood has previously presented in support of his judicial bias claim. The simplest explanation is the most plausible one: Judge Holland recused herself at such an off-the-charts rate, because she had previously been romantically involved with [D.A. O’Connell],” Hood states in today’s habeas application.

Hood’s petition requests a stay of execution and a remand to the convicting court for further proceedings, including depositions or an evidentiary hearing where Judge Holland and Mr. O’Connell would be subject to questioning under oath. If Hood’s claim is proven, his rights to an impartial judge and a fair trial were violated and his conviction and sentence are null and void.

Hood’s attorneys also filed a Motion to Recuse eight of the nine judges on the Court of Criminal Appeals from hearing Hood’s habeas corpus petition because they served with Judge Holland and their personal knowledge of the facts may create the appearance of impropriety.

Also today, Judge Greg Brewer of the 366^th Judicial District Court in Collin County is expected to hold a hearing on Hood’s civil petition seeking permission to depose Mr. O’Connell and Judge Holland. Both parties have been ordered to appear and be prepared to give sworn depositions, but scheduled hearing remains uncertain, because in an attempt to avoid giving depositions under oath, Judge Holland and Mr. O'Connell have asked a federal court to remove Judge Brewer’s jurisdiction over the case.

This is now essentially in Governor Perry's hands. Attorney General Greg Abbott urged the Governor to stay the execution until claims of the affair could be investigated in order to "protect the integrity of Texas' criminal justice system."

Odds are the civil courts will eventually allow Holland and O'Connell's depositions, the question is whether that happens before Hood is put to death. Though Holland's attorney called the request for depositions a "suberfuge," it's his client who's attempting to conceal the truth about her past.

If the allegations are true but the revelations don't come out until after Charles Hood's execution, the thoughtless zealots calling for Hood's immediate extermination will have surely done more harm to the pro-death penalty cause than any abolitionist ever could. Even if the public supports the death penalty in general, that could change down the line if the state proves irrevocably it's willing to tolerate a rigged game. Texans surely support the death penalty, but IMO they also support its fair administration.