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.