Tuesday, September 09, 2008

Judge and DA in Charles Hood case admit to sexual relations

Who is surprised that the affair between the Collin County DA and the judge presiding over Charles Hood's case definitely occurred, with both lovebirds admitting to the tryst in depositions over the last 24 hours? Now it's up to Governor Perry to decide whether that merits commuting Charles Hood's sentence as Attorney General Greg Abbott has requested. (9/10 update: The case was stayed on other grounds - see below.) Here's the relevant excerpts from a letter from Hood's attorneys to the Governor with results from the depositions (via email, not online):
Last night and today, counsel for Mr. Hood deposed the former Collin County District Attorney, Thomas S. O'Connell, Jr., and the Hon. Verla Sue Holland. Judge Holland and Mr. O'Connell admitted under oath that they had an intimate sexual relationship for many years.

Judge Holland and Mr. O'Connell confirmed that they kept the relationship secret. She never disclosed it to a single litigant or lawyer who appeared before her, and she never recused herself from hearing a single case because of her affair with the elected district attorney. Similarly, Mr. O'Connell never disclosed the romantic relationship to any of his adversaries nor did he recuse himself or his office from prosecuting a single case because of his affair with Judge Holland.

The intimate sexual relationship between the judge and district attorney began several years prior to the trial of Mr. Hood. While Mr. O'Connell and Judge Holland have different recollections as to when the affair ceased containing an intimate sexual component, there is no doubt that the relationship was sexual in the years immediately leading up to the time that Judge Holland had jurisdiction over the case. Even after the romance ended, Judge Holland and Mr. O'Connell remained good, close friends.
From this account it sounds like one of the pair - probably Judge Holland - denied the affair was still going on during Hood's capital murder trial but admitted it had gone on for years prior. It's hard to guess now what Gov. Perry will do - the ball is in his court. Whether or not this information helps Charles Hood's case, many unanswered questions remain going forward: The courts must decide whether the affair taints not just Hood's case but all cases Holland presided over involving Mr. O'Connell. The answer is "probably," but then what should be done about it?

Should Holland and O'Connell be prosecuted for what they've done, or merely disbarred? Or will they get a slap on the wrist?

What do readers think will happen, not just in Hood's case but in all these old cases where Holland and O'Connell have admitted a fundamental conflict of interest?

UPDATE: A reader lets us know that the Court of Criminal Appeals stayed Hood's execution pending consideration of a separate issue related to the jury instructions. This case is full of novel legal strategies, including this one by the CCA. It sounds like the Court of Criminal Appeals hopes to delay the case in deference to growing public and political pressure without formally addressing any misconduct by their former colleague. ABC News reports:

Though the former judge, Verla Sue Holland, and former district attorney, Tom O'Connell, reportedly admitted today to having a sexual relationship, the Texas Court of Criminal Appeals granted the stay based on a technical legal issue unrelated to the reported affair.

Instead, the court said it would reconsider whether jurors in Charles Dean Hood's death penalty trial received proper jury instructions. Hood was scheduled to be executed Wednesday.

The court had rejected a similar claim from Hood's attorneys, but said it would revisit the issue based on new developments in the law.

MORE: See a related editorial from the Dallas News.


Robert Langham said...

These folks held positions of responsibility and acted as officers of the court in the State Of Texas representing the people of the State. They have jeopardized this case and any others that came through this court and their hands.
It's a tough old world, but I think prosecution is in order. Resignations from public life and the bar, immediatly and certainly.

Anonymous said...

Prosecuted? What would the charges be? Just curious ...

Lisa said...
This comment has been removed by the author.
Anonymous said...

The execution has been stayed pending consideration of an issue related to the jury instructions:


Anonymous said...

Since the TCCA granted a petition filed by the defense last week requesting that they revisit the issue of the jury instructions, it's disingenuous for you to claim they did it in response to some sort of political pressure. But, it's what I've come to expect from you.

Anonymous said...

"Prosecuted? What would the charges be? Just curious ..."

There aren't any. He's just shooting his mouth off.

Gritsforbreakfast said...

"What would the charges be?" Ronnie Earle indicted Tom DeLay for less!

How about some version of conspiring to cause Hood's wrongful death, maybe attempted voluntary manslaughter? They both had a duty as public servants to come forward and keeping silent was an attempt to have Hood killed to cover up their misconduct. They knew if they told the truth the law wouldn't allow his execution and believed that Holland's former colleague's on the CCA would cover up for her.

A crafty and motivated prosecutor could find some behavior within that mix to indict, I assure you, although I suspect the statutes of limitations have all run out. That's my suspicion, but I don't doubt their actions violated the law.

To 9:49, I didn't know the CCA granted the petition earlier, so I'll accept that criticism, though it doesn't change any strategic considerations. They were ready to let Hood die in June, but NOW the jury instructions are a big deal? Regardless, I still believe the CCA shirked its duty shamefully by refusing to provide oversight to their colleague's misconduct, so whatever you've come to expect, you may continue to expect it. I'll admit my mistakes, but that doesn't give them a pass.

Anonymous said...

I doubt they can be prosecuted. They definitely should be disbarred.

Anonymous said...


You nailed the central issue on the head: what's to be done about this? I don't like the concept of collective guilt but this really was a collective crime. Clearly, based upon all the rumors flying around other people knew, or at least suspected. After all, we are only where we are now because someone in the community broke the code of silence. To my mind, that's the bigger story here. There was a collective social and cultural failure to admit that a mistake was being made and to stand up to that.

I honestly don't know how you remedy that. The ancient Romans had a policy of physically razing cities of their enemies and then salting the earth, so that nothing could grow. That's how enormous this crime is. What does disbarring them do? What does jailing them do? How can any punishment you impose on those two individuals in any way atone for the crime of an entire community? The corruption of the entire judicial process over the course of years?

I don't know what you do, because I think that there is, as a practical matter, no way to punish them. Cry, that is what you do. Weep for your country, that is what you do. "Rend your hearts and not your garments and return to the Lord your God," that is what you do.

Anonymous said...

BTW, I don't think that it's "probable" that the cases she presided over are void, I think it's certain. Article 5, Section 11 of the Texas State Constituion:

"No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law".

That seems clear. There may be some wiggle room with the "as my be prescribed by law" but it's difficult to rationally conceive that an intimate sexual relationship does not fall within a "degree" of "affinity" as prescribed by law, even if it is not specifically spelled out by a statute.

Since the very first word in the section is "No judge," she did exactly what "no judge" has the constitutional power to do. As a constitutional matter, her rulings are void. That's how I read it, though I am no scholar on the Texas Constitution.

Robert Langham said...

OK, "Prosecuted for what? " Fraud? Failure to act and uphold their positions and oaths as officers of the State and Bar? Malfeasance? Conspiracy to deprive civil rights?
None of those crimes? Well then how about a toothy law stripping public officials of immunity when caught acting outside their oaths...named for the pair.
Then disbar them and anyone who knew and didn't come forward.
These folks destroyed the legal system. It's bad for the state and the country. They should be made examples of.

Robert Langham said...

Take note: These two are examples of serious rot throughout the system.
Nifong- remember him? He served ONE day sentenced by a judge who aided and abetted his actions, surrounded by investigators and LEOs who aided and abetted his actions. ONE day. His fellow conspirators applauded him in the courtroom. Do you think that system is now honest and fair?
The whole courthouse in NC should have been cleaned out. Probably same thing here.
These folks are destroying the legal system. They should be punished to the strictest extreme.
It will be a lot cheaper and cleaner to make an example of these kinds of criminals NOW than to suffer their corruption forever and pretend reforms have been made and punishments meted.

TxBluesMan said...


While Ronnie Earle did indict Tom DeLay, if you remember, some of the charges were tossed because they didn't apply and Earle was playing fast and loose with the law...

Wrongful death is not a criminal charge, but a tort in civil law.

Attempted voluntary manslaughter is not an offense in Texas, the nearest like charge would be attempted manslaughter, which would require that you show that they attempted to 'recklessly' cause the death of Hood. This won't fly, the jury was the group that sentenced Hood to death, and while the conviction may be overturned, there is no way to get a criminal conviction on that charge. The facts don't meet the elements of the offense.

You may have had a charge of official oppression (a misdemeanor), but the statute of limitations expired a long time ago, as it did on the charges you suggested.

Hood's best bet would be a Sec 1983 case, but I doubt that it would fly either, especially if he actually committed the murder he was convicted of.

One should remember that when Hood was arrested in Indiana the day after the double murder, he was driving the victim's vehicle, had used the victim's credit cards, his fingerprints were on a bogus note supposedly left by the female victim (in which he misspelled her name), and other property was in his possession. It was also noted that he had been violent in the past, including a sexual assault of a 15-year old, had multiple convictions, and had made numerous death threats.

While the judge and the DA may have acted inappropriately, this does not mean that Hood is innocent, nor that he does not merit the death penalty.


Having sex does not move one into a degree of 'affinity or consanguinity' - not that I approve of the judges/DAs actions - I don't.

Gritsforbreakfast said...

Nominee for Understatement of the Year by TXBluesman:

"the judge and the DA may have acted inappropriately"

It's a little late for "mays," amigo.

That said, you're correct, Bluesy, that "this does not mean that Hood is innocent, nor that he does not merit the death penalty." However, that observation at this point only serves to further criticize Holland and O'Connell, whose egregious misconduct is the sole reason this execution hasn't already occurred. Usually the defense is blamed for death sentence delays, but in this case the reasons for delay fall squarely on their shoulders.

Re prosecution, Bluesy if you tried to be half as creative in this case as you were spewing out possible charges against FLDS members, you'd come up with a list as long as my arm. Besides, the jury sentencing Hood doesn't excuse overt misconduct by judge and prosecutor - they clearly hoped Hood's death would cover up their conspiracy to violate his civil rights, among other things. Robert's comment at 6:48 shows there are likely many ways to skin that cat.

TxBluesMan said...


First, I am aware of no current criminal law that could be applied to this case - and you should be ashamed of yourself if you are supporting Robert's apparent call for an ex post facto law and prosecution. That is the same thing that Earle tried on DeLay, and the court slapped him down and dismissed those charges.

You can't create a law, and then go back in time to retroactively make conduct criminal.

Second, what charges did I mention as to the FLDS that aren't supported by facts?

Anonymous said...


You state that sex does not create a state of "affinity". Now, I honestly don't know how that has been interpreted by Texas law as a Constitutional matter. I know how it is defined as a matter in regards to divorce, but I could not find any cases that are on point in regards to it's definition of Article 5 Section 11. It may very well be that the definitions are the same but I wouldn't leap to that conclusion. After all, affinity in it's plain language meaning does not mean simply marriage; when opposed to consanguinity it means any relationship other than by blood. And here we do not have a "slip and fall case;" this affair was not a one night stand which both parties regretted later. While the exact number of years have not been made public, it's difficult for me to rationally conceive how this relationship would not be the functional, if not the legal equivalent, to marriage. Texas law it's recognizes common in law marriages.

My point is not they were legally married, they obviously were not under Texas law. My point is that Texas law it's recognizes that it is possible to have a "de facto" marriage, regardless of the legal niceties. The question then becomes, for the purposes of interpreting the Texas Constitution Article 5 Section 11 of the Texas Constitution, where is that line drawn? Was this drawn out intimate affair the functional equivalent of a marriage? If you can point me to a legal case where that specifically addresses that question, I'd love to read it. But until you do it is, at the very least, an open question of law.

Anonymous said...

You may have had a charge of official oppression (a misdemeanor), but the statute of limitations expired a long time ago, as it did on the charges you suggested.

Look up "discovery rule."

One should remember that when Hood was arrested in Indiana the day after the double murder, he was driving the victim's vehicle, had used the victim's credit cards, his fingerprints were on a bogus note supposedly left by the female victim (in which he misspelled her name), and other property was in his possession.

Yeah, this one case seems to be bulletproof as far as the affair truly affecting the outcome of the case.

BUT--how many hundreds of cases turned based on a discretionary ruling? The affair impacts far more than just Hood's case.

Besides, if at least 1% of Texans in jail are actually innocent statewide, and this affair likely skewed results for the prosecution in any case this judge was involved in while she was boinking the DA, how many are actually innocent from her court?

It's worth a look...

Anonymous said...

What about Abuse of Official Capacity?

If there are criminal charges which can be leveled against these people, I support an order of restitution for the costs to the taxpayers for every case which is reopened and/or retried as a result. The Bible is very clear that those with greater authority should suffer greater punishment for their transgressions. It seems that our civil government has been increasingly taking the opposite tact.

Gritsforbreakfast said...

Thanks, Jerri!

Good to see you here. :) Between your suggestion and Robert's I think we've identified several likely suspects.

Bluesy, you had everybody at the YFZ Ranch guilty of something at one time or another, typically on the thinnest possible reed of suggestive (usually soon-debunked) so-called evidence.

Here we have an admission of abuse of official capacity of the worst stripe - willful, conscious, even manipulative and scheming negligence toward judicial and prosecutorial duties - and you sit dumbfounded, apparently believing the law is hamstrung and has no recourse.

The last thing I want to do is go re-live those FLDS comment strings, but I just remember you being a LOT more creative with finding obscure charges to throw at the FLDS folks than seems to be the case in this instance. Perhaps the difference is your level of motivation?

Here's a better link on that abuse of official capacity statute.

TxBluesMan said...

Affinity is defined by Texas as related by marriage.

"Affinity is the tie which exists between one of the spouses with the kindred of the other..." Lyon v. State, 872 S.W.2d 732 (Tex. Crim. App. 1994), cert. den'd.

Texas also does not follow the definition of affinity in Black's Law Dictionary (see Lyon, at 737, fn 12.)

In this case, there is nothing to show that the DA and the judge were married, nor that they intended to commence a common-law marriage. Texas does not recognize a 'functional' or 'de facto equivalent to marriage - you are either married or you are not. You stated that they were clearly not married and without that, there is no grounds for disqualification under the Texas Constitution or CCP Art. 30.01. While disqualification is a plea to the jurisdiction of the court, recusal is not.

"Where a trial judge is not constitutionally or statutorily disqualified to preside over a case, as here, a trial judge's bias, standing alone, is not error." Lyon, at 737.

Common-law marriage has been clearly established in Texas, so unless you can show either a marriage by license or a common-law marriage, there are no grounds for disqualification - recusal perhaps, but not disqualification.


Abuse of official capacity is a misdemeanor, and the statute of limitations is well past.

You can't go back 18 years ago and charge someone today for a misdemeanor. If you can show a valid criminal charge that's one thing, but you can't show a viable charge. It is not even a sure thing that this would be sufficient to overturn the conviction - it probably will, but it's not a slam dunk.

We also differ on the sufficiency of the evidence at the YFZ Ranch. You tend to ignore the records and the statements that support the indictments, and I believe that it will get in, especially at the trial court level. Doran has agreed with that, although he believes that it will be tossed on appeal (I think he is wrong, but we'll have to wait on that). In any event, the grand jury has indicted on some of the various charges that you don't think will stand - that's hardly an indication that it is a stretch for those charges.

TxBluesMan said...

It may not be clear, but the first half of the previous post was responding to Daniel, not Grits...

Anonymous said...

Judge Holland left Collin County to join the CCA in 1997 so it has been more than 10 years since any potential crime.

10 years is the max limitations period except for those crimes with no limitations:
a) murder or manslaughter
b) rape if DNA was found
c) leaving the scene of a deadly accident

Gritsforbreakfast said...

To 5:59 - Judge Holland still gets work as a visiting judge. As such, I'm told she may still have pro-active obligations as a judge that she's violating by failing to speak up for so long. The DA probably can't be touched. That's speculative gossip, but it's a theory I've heard about how she might remain criminally liable.

That said, returning to Bluesy, I admitted in the original post I suspected the statute of limitations had run out. But it strikes me you're AWFULLY quick to decide there's no criminal culpability here given your usual tendency to jump the gun based on the slimmest possible reed of proof.

The punishment range for abuse of official capacity goes all the way up to a first degree felony, plus Robert's suggestions are still valid. Clearly from the results of the reader poll so far, I'm not alone thinking prosecution might be in order (though I actually chose disbarrment on the poll). So far 32% say the pair should be held criminally liable.

Finally, I didn't ignore any evidence re: FLDS - I just didn't assume every insinuation was God's truth and instead required proof beyond just spinning tiny factbites out of context. As it stands they're down to a handful of weak cases, all based on a hoax phone call with no complaining victim. Compare that to this case and there's a lot more smoke AND fire regarding misconduct by O'Connell and Holland than you ever demonstrated regarding anyone at FLDS.

Anonymous said...

The feds might charge it as conspiracy to defraud the people of Texas of the right to honest services ... just need a phone call or such in furtherance within the 5 yr statute. I don't know of a precedent offhand, but these are pretty unusual facts, and given the cost to the taxpayers it's worth a look.

Anonymous said...

It may not be clear, but the first half of the previous post was responding to Daniel, not Grits...

Because you have nothing with which to respond to Grits rubbing your nose in your own poop.

I hadn't thought about it in his terms, but he's exactly right. It's amazing the extent to which "conservatives" will go to try and arrest and convict every day citizens, but ignore the transgressions of judges and prosecutors who have admitted to wrong doings.


TxBluesMan said...


You might want to invest some of your time learning to read - my first post on this thread clearly states that I do not approve of what DA O'Connell and Judge Holland did.

A number of people, some knee-jerk liberals, some students of the system like Grits is usually, have called or otherwise opined about criminal prosecution. Grits was up front in his blog post that the statute of limitations was probably expired.

A number of people then started to suggest all sorts of charges, none of which apply, either because of the statute of limitations or because the facts don't meet the elements of the offense.

As for Grits rubbing my nose in it? Hasn't happened.

We disagree, but Grits runs a civil blog, and while we disagree on a number of issues, he has made points (as have I) that are opinion, and that will have to wait until the appeals run out (and you're looking at a period of several years for that).

I have not called for the arrest or prosecution for any "every day citizen" except when there is probable cause to believe that they have committed a crime, as has been borne out in the FLDS case.

Anonymous said...

I'm not convinced about that SOL thing. If there is a continuing legal duty on the part of these people to reveal this information, as the Hood case (or any others) progressed, then law breaking occurred up until the admissions during the deposition. I believe the violation of law was not only the failure to recuse, but the failure to come clean (misrepresentation). I think that there is an argument to be made that the SOL runs from the deposition date.

Gritsforbreakfast said...

Jerri, I agree. I don't think it's so cut and dried, particularly for Judge Holland who still sits as a visiting judge. A couple of lawyers I've talked to think her criminal liability may be ongoing because she is still obligated by her judicial duties. Since he's no longer a public servant, the same may not be true for O'Connell, by this logic.

Hell, if Judge Holland were a member of FLDS, I think even Bluesy might agree! ;)

Regardless of the chances of prosecution, both should be disbarred. Now. Today. By the end of business, if possible. For that matter, anyone who knew about the affair and didn't complain to the state bar should at least be subject to sanction.

Too many people knowingly tolerated or even justified these unethical boors' behavior for far too long.

TxBluesMan said...


Abuse of Official Capacity became law in 1994, after the trial. If it were a continuing offense, based on misconduct during the trial, it would have to be on a charge that was valid at that time, not something that was only effective 4 years later. It is difficult to prove a continuing offense where there was no offense at the time that the alleged criminal episode began.

Additionally, since you can't charge based on the costs of the trial, state employee salaries, etc. (see Harrelson v. State, 153 S.W.3d 75 (Tex. App. Beaumont 2004, pet ref'd)), you would have to show the misappropriation of government funds or property. Defense costs do not meet the requirements of the statute. The other possible theory would be under the 'violates a law relating to the public servant's office...'

What, pray tell, law was violated? And how do you tie that to an offense that had not yet even been enacted?

As far as non-criminal sanctions, I'm all for those. But you can't throw someone in jail because they did something that may or may not have become a violation of the law at a date after the beginning of the 'continuing' offense (assuming, arguendo, that it is a continuing offense). It's called an ex post facto law and it is prohibited by the Constitution.

Anonymous said...

Both the judge and the DA swore to uphold the Constitution so maybe they are "enemy combatants" ... send them to Gitmo without any charge.


Or maybe charge them with Treason and execute them.

Anonymous said...

Bluesman wins by a knockout! Grits, you're really stretching on this one. Now - carry on - I'll be in the area all day.


Gritsforbreakfast said...

Since you'll be here, Plato, tell us why you think so, oh master of the short declarative. No offense but you're not exactly a partial referee!

Bluesy, the penal code was revamped in 1993, but it's not like that behavior wasn't illegal before. Also, to the extent they had a pro-active duty to come forward, they continued to violate the law past 1994 and in Judge Holland's case possibly up to the time of the deposition, when she finally came clean.

On misappropriation of funds and property, how about the legal fees spent to defend her by the AG? She solicited that assistance as a public official relatively recently (the AG dropped her as a client last week). Was the request in furtherance of a conspiracy to violate Charles Hood's civil rights? That's just one thought. Again, if you were being as creative as I've seen you in the past, you might be able to come up with others. :)

Anonymous said...

Grits - in your zeal to abolish the death penalty in Texas, you'll grasp at any straw that furthers your objective, IMO. While all this extranerous sexual hanky panky by a judge and prosecutor shouldn't have happened, it did. But what, pray tell, did these sexual liaisons have to do with the evidence presented at trial and the jury's death sentence decision? You are always the zealot who wants convictions to be 100% accurate and unlimited funds expended in order to "turn over every rock" before judgement and sentence so I ask, where's the beef?

Just tell me, WTF does the judge and prosecutors deal have to do with the evidence, judgement and sentence in this case?

(semi partial referee)

TxBluesMan said...


When the statute changed, so did the possibility of prosecuting someone under the old statute. When that statute was repealed, the offense ceased to be continuing on that date, and the statute of limitations clock started ticking.

Harrelson stated that you could not calculate the salary of state employees doing their jobs, who would otherwise be engaged in other tasks for the state. That prevents you from using the wages of the AG lawyers to compute the amount.

You can't even show what law stated that they had a duty to disclose the affair.

It may have been unethical, but you haven't made a case that it was illegal. The fact that you don't particularly care for what they did doesn't mean you can just throw them in jail. You have to have an offense, which you don't have.

I understand your frustration, but you're beating a dead horse.

Move on to disbarment, etc., and give the idea of prosecution up - it ain't goin' happen.

Anonymous said...

Blue's brain is wired like a cow's, it only knows the way back to the barn. Asking him to figure out how to criminally charge someone on his team is like asking a cow to think.

Gritsforbreakfast said...

Plato, I'm not an abolitionist so your implication that I possess a "zeal to abolish the death penalty" is misguided and misplaced. No wonder your comments made no sense! You're beefing against some phantom in your mind, not me. Arguing the points, not your prejudices, makes the discussion more useful and interesting.

Bluesy, you're something. I'm sure when you're claiming police officers can't ever be held accountable in your day job you're very convincing. But just saying there's no crime doesn't mean it's true, just like my having not shown the law requiring the judge and prosecutor to disclose misconduct doesn't mean they had no such duty. For the prosecutor it's Brady, among other things. For the judge, see this analysis from ethicists on why she had a duty under the Code of Judicial Conduct and the Rules of Criminal Procedure to both recuse herself and disclose the conflict.

I'm not a lawyer and not equipped to answer definitively which of the 2,324 Texas felonies or thousands of misdemeanors might have been broken. But it strikes me as telling that you think the law has zero recourse in such a case. Your stance compared to your speculative prosecution suggestions for the FLDS tells me more about you, frankly, Bluesy, than it does about whether the law might ever hold Judge Holland accountable.

Gritsforbreakfast said...

Hey Bluesy, I was actually interested to hear your reactions to this post and the discussion in the comments. That may be one where we find more common ground.

TxBluesMan said...


She may have had a duty ethically, but that does not necessarily mean she had a duty as far as the criminal law is concerned.

"A person commits the offense of abuse of official capacity if, as a public servant and with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly violates a law relating to the public servant's office or employment. "Law" in this context means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly imposes a duty on the public servant or governs the conduct of the public servant. "Law" is further defined as 'the constitution or a statute of this State or of the United States, a written opinion of a court of record, a municipal ordinance, an order of a county commissioners court, or a rule authorized by and lawfully adopted under a statute.'" State v. Campbell, 113 S.W.3d 9 (Tex. App. Tyler 2000) no pet., internal citations omitted.

Unless you can show that the judge had a duty to disclose the relationship by law, you don't have a case.

The cases cited by your analysts aren't even close to being on point for this case. I also love it when they provide me with cases that not only fail to support their point, but make my point for me. See FN5 of your link, referring to:

"Additionally, "mere violations of the Code of Judicial Conduct alone, do not constitute reversible error. . ., and . . . unethical conduct. . . is not necessarily a legal ground for reversal." Westbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000), at 121, internal citation omitted.

Grits, your own link refers to a case that says that this (a violation of the Code of Judicial Conduct isn't a reason to reverse the conviction - so why the uproar? If it is good enough to execute Westbrook for a double murder, why should Hood walk?

I'm not sure what you mean on the clergy deal - I really don't have a dog in that hunt. The only privilege that exists is at the pleasure of the Lege, so if the courts narrow it, I'll work with it. It's not a Constitutional issue that I can see.

Now, if they start talking about attorney-client privilege, I can get pretty worked up... ;)

Gritsforbreakfast said...

Bluesy, context is everything and your comments are so completely lacking in it I can't find the will to respond in any detail. I don't know the right answer, but my gut tells me what you've said isn't it. If an aggressive, motivated prosecutor went looking for possible charges, I'm pretty sure they'd find them. But I can't cite chapter and verse, so I'll admit that shortcoming and leave you and our readers to their own conclusions.

Anonymous said...



Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. Each district
attorney shall represent the State in all criminal cases in the
district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely.
When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.

Art. 2.03. NEGLECT OF DUTY. (a) It shall be the duty of the
attorney representing the State to present by information to the
court having jurisdiction, any officer for neglect or failure of
any duty enjoined upon such officer, when such neglect or failure can be presented by information, whenever it shall come to the knowledge of said attorney that there has been a neglect or failure of duty upon the part of said officer; and he shall bring to the notice of the grand jury any act of violation of law or neglect or failure of duty upon the part of any officer, when such violation, neglect or failure is not presented by information, and whenever the same may come to his knowledge.
(b) It is the duty of the trial court, the attorney
representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the
presumption of innocence, and at the same time afford the public the benefits of a free press.

Anonymous said...

"She may have had a duty ethically, but that does not necessarily mean she had a duty as far as the criminal law is concerned."

The statute doesn't say that the underlying law which is broken must be a criminal law. This might be one of those situations where a civil law is criminalized like in Medicaid/Medicare fraud situations. If it is, then I would think that statutes cited by Anon 8:42 would suffice.

Anonymous said...

They committed the crime of attempted manslaughter:

§ 19.04. MANSLAUGHTER. (a) A person commits an offense
if he recklessly causes the death of an individual.
(b) An offense under this section is a felony of the second

Anonymous said...

""...be ashamed of yourself if you are supporting Robert's apparent call for an ex post facto law and prosecution. ""

Why should he be ashamed? The Texas elected body, as well as the US Congress regularly pass ex poste facto law against several groups, terrorists, sex offenders, etc. Why should this be any different? If we are gonna throw out the Constitution, we might as well make it a clean sweep.

alan milstein said...

What is almost as disturbing is how many attorneys and judges knew about this relationship, knowing a defendant was sitting on death row, and said nothing.

Anonymous said...

It is really shameful on their part to have this king of behaivior and just remain in silence while the process is going on.

Anonymous said...

Is there any updates of how this trial ended up? I'd like to know how justice was done in this case.

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