Saturday, May 02, 2009

Sex parte: Coverup of judicial tryst tests CCA's ethical mettle

March and April were both memorably bad months for the Texas Court of Criminal Appeals, with the Commission on Judicial Conduct initiating removal proceedings against Presiding Judge Sharon Keller followed by the House of Representatives considering a resolution to impeach her. Unfortunately, the month of May didn't start off any better for Texas' high criminal court.

A state district judge ruled yesterday that death row inmate Charles Dean Hood did not wait too long to raise the issue that the judge and the prosecutor in his case were having an affair during his capital murder trial 19 years ago, setting the stage for the Court of Criminal Appeals to revisit misconduct allegations against one of its own former members. Judge Verla Sue Holland (pictured) was the trial judge in Hood's case and was later appointed to Texas' high criminal court where she served with 8 of the current members. According to the Plano Courier-Star ("Judge deems death row inmate did not receive a fair trial because of sex scandal," May 2), Judge Greg Brewer yesterday:
issued Findings of Fact and Conclusions of Law that concludes that attorneys for Hood discovered proof of Judge Vera Sue Holland and District Attorney Tom O’Connell’s secret, sexual relationship in a timely fashion and that Hood’s attorney are not at fault for not discovering this information earlier because the parties kept it secret for so long.

In his recommendation to the CCA, Brewer determined Hood should be able to raise judicial bias claims and that the affair between the judge and the district attorney violated his right to a fair trial.

Brewer found that Holland and O’Connell did not abide by their ethical and constitutional duties during the 1990 trial and conviction of Hood.

According to court records, Brewer states: “Judge Holland and Mr. O’Connell took deliberate measures to ensure that their affair would remain secret,” and “Judge Holland and Mr. O’Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship.”

In attempts to keep their affair secret, Brewer states “Mr. O’Connell misled habeas counsel during the successive state habeas proceedings and Judge Holland resisted counsel’s investigative efforts.”

The Findings of Fact and Conclusions of Law that Brewer made will now be sent up to the CCA for their review, where they can either accept or reject Brewer’s recommendations. According to Andrea Keilen, Texas Defender Service executive director, the CCA will either grant a new trial or find they are not bound by the trial-court recommendation.
I think Brewer made the right call: The judge and the DA had an ethical duty to disclose their misconduct and were playing hide-the-ball, so the defendant shouldn't be penalized for not knowing about the affair or not being able to prove it earlier.

Brewer's decision drops the whole mess right back in the lap of the Court of Criminal Appeals, which has done everything in its power so far to avoid directly ruling on their former colleague's ethical lapses. According to the Dallas News ("Old love affair gives death row inmate a new chance in 1989 murder case," May 2):

In his ruling, Brewer said Hood's legal team exercised "reasonable diligence" during the years, and that prosecutors' claim that the defense had moved too slowly was not valid.

"Judge Holland and Mr. O'Connell did not abide by their ethical and constitutional duties to disclose the fundamental conflict caused by their relationship," the judge wrote.

Attorneys for Hood were unavailable for comment; assistant district attorney John Rolater declined to comment, citing pending litigation.

The case goes back to the court of criminal appeals for consideration on the judicial bias claim.

The court still is considering the other claim: that jurors were given contradictory instructions regarding mitigating circumstances, such as Hood's family background or childhood abuse, when considering the death penalty.

The CCA stayed Hood's execution based on the mitigation claim, not Judge Holland's affair, but that only bought the court time. Now the CCA must directly rule whether Judge Holland's misconduct justifies a new trial, which puts them in a particularly awkward spot.

Either they must publicly rule that someone most of them served with on the court is an unethical jurist who committed about the most egregious misconduct imaginable, or they must issue a public ruling that says a tryst between a judge and prosecutor during trial doesn't invalidate the results. Pick your embarrassment, in other words: Either admit you shared the bench for years with a grossly unethical colleague or issue a CYA ruling that would make the court even more of a national laughingstock than is currently the case.

The worst part: Charles Hood is as guilty as homemade sin. But the victim's family and friends now may have to endure a new trial as a direct result of misconduct by the prosecutor and trial judge. There's nobody else to blame: It's not like the pair didn't know what they were doing was wrong at the time it happened.

This case has become perhaps the most severe test imaginable of the Court of Criminal Appeal's ethical mettle - a test that so far they've miserably failed. In many ways it poses more of an embarrassment, even, than Judge Keller's "We close at 5" imbroglio because so many members of the court were colleagues of Judge Holland, so it will look like they're all protecting her if they don't go along with Judge Brewer's findings and give Hood a new trial.

If I were a betting man, I'd wager this will be a 5-4 ruling, but it's a tossup which way they'll go.

MORE: See Judge Brewer's findings - good stuff. He performed a thorough, credible review, which at this point is exactly what the public needed to see from the judiciary in this case. Now we'll see if the same can be said for how the CCA receives his findings.

ALSO: See coverage from the ABA Journal.


123txpublicdefender123 said...

An excellent ruling. Honestly, the nerve of the District Attorney's office in saying that Hood's attorneys waited too long to bring this up after they covered it up for years, and then vigorously fought the civil process that finally forced the two to admit the affair in depositions, is unbelievable.

assistant district attorney John Rolater declined to comment, citing pending litigation.Since when did pending litigation ever prevent a prosecutor from commenting before? They LOVE to comment on pending litigation!

Soronel Haetir said...

They shut up when answering would be embarassing. At least when they know it will, they are still willing to say embarassing things when they don't realize how poorly it will come out.

Anonymous said...

Justice does not happen in Collin county

Anonymous said...

If Hood "is as guilty as homemade sin," what's the big deal, Grits? No harm - no foul, imo.

Gritsforbreakfast said...

The harm is to the integrity of the justice system, and in that sense there's been a tremendous foul. We live in a nation of laws and the judge and prosecutor don't get to ignore them in the most serious legal proceedings imaginable.

I could care less about Charles Hood but the same mentality you exhibit (who cares, they're guilty anyway) is how all those innocent men later cleared by DNA wound up in prison. If you don't protect the rights of the guilty, when an innocent person comes along they'll never have a chance.

123txpublicdefender123 said...

Agreed, Grits. This was such a gross violation that it MUST be dealt with. This was a death penalty case, for goodness sakes, and the judge and the prosecutor were secretly sleeping together! How can it possibly get any worse?

One thing that I don't think a lot of non-lawyers or avid trial-watchers understand is that judges make a lot of rulings in every trial, most of which would be reversed only if they were an abuse of discretion. It's not enough if the appellate court judge would have ruled differently; they must find that the judge's ruling was so far afield as to be an abuse of discretion. And then there are all the rulings the judge makes that are reversible only if they are deemed to be "harmful" error. In all these cases, the appellate court presumes that the judge is coming from a position of being objective. It is the way the system has to work. But, if a judge truly is not objective, then that judge can ultimately have a definite effect on tipping the case towards one side by all of these discretionary rulings. That is why it is imperative that the judge NOT have a conflict of interest. This judge was sleeping with one of the attorneys! Come on!

And another thing to remember about this case. Although the evidence of guilt does seem very strong in this case, as a death penalty case, this was about more than just guilt/innocence. It was about whether this man deserved to die. Thousands of murderers sit in prison in this state, not having been deemed "death-penalty-worthy." This man was condemned to death. His overwhelming guilt notwithstanding, the process in determining whether he should be killed needs to be fair.

Whenever anyone tries to act like this shouldn't matter, all I do is ask them, "If you were on trial for your life, would you in a million years think it was fair that the person trying to put you on death row was sleeping with the judge?" That is what it comes down to. And there is only one honest answer to that question.

Anonymous said...

I am stunned by Anonoymous remark--it does make a difference even if someone is "guilty as sin". I don't believe that ANYONE wants someone who is guilty as sin to go free...including folks who are serving at the will of the people in the Justice system. As painful as it is to see this come up, I am glad to see that we still have some folks who have the courage to investigate and evaluate a tough issue with such honesty. I have observed that so many counties immediately settle a lawsuit against them when there has been a breach of power in the judicial system that would prove embarrassing if one than one article published in the news were to continue to be brought to the attention of the public in any future news coverage. I am in hopes that local communities will begin to PAY ATTENTION to the amount of money paid over a span of time to cover these breaches up.

123txpublicdefender123 said...

Just read the findings by Judge Brewer. What an excellent piece of legal work. I especially love the part where he says that what the CCA said in their remand order about Hood waiting for 18 years to pursue this issue being "incorrect." He laid the blame for all of this where it belongs--at the feet of the sworn officers of the court who repeatedly lied or kept quiet when numerous ethical and judicial rules demanded that they speak they truth.

Gritsforbreakfast said...

I agree with you Judge Brewer did a good job.

Besides the CCA, he also blamed the Legislature, you may notice, for tightening access to the courts for habeas writs in the interest of "finality" but failing to provide counsel for indigent defendants to successfully jump through the hurdles they've erected.

Nobody culpable was spared, which is as it should be.

Anonymous said...

The Legislature is a lot to blame for courts misbehavior. Look on line and go to the minutes of each and every meeting and count the number of times there are not enough members to make a quorum; this is a disgrace and everyone in this State should ask the person or persons who represent them, why they were not in attendance when there was a Committee Meeting. A hearing is required for a Bill to even get to a vote and there have been very few votes for Bills thus far. People, pay attention and make hold the person who represents you account for his/her absences at important meetings. You can also watch meetings via internet by going to or and go to minutes and see what is actually happening and where our money is being so wasted.

I am totally shocked at what is happening or not happening in Austin. For someone to be elected to represent his constiutents and then not show up to speak for them should be made known to each and every tax paying person in Texas.

Anonymous said...

"We live in a nation of laws and the judge and prosecutor don't get to ignore them in the most serious legal proceedings imaginable."

And yet, a former President and members of his administration ignore, or twist the law and the outrage barely rises to the level of a soft whimper.

Anonymous said...

"...when an innocent person comes along they'll never have a chance."


"And yet, a former President and members of his administration ignore, or twist the law and the outrage barely rises to the level of a soft whimper."

Who is going to rant about it? we here? barely a muffled cry.. The Media? Most of them have made all sorts of inroads into your privacy under the other admin (although they won't say as much), the sitting elected officials? They know that one day too, they will be the 'outgoing' administration...