Monday, February 22, 2010

Will SCOTUS benchslap Texas CCA for tolerating judicial tryst?

The New York Times' Adam Liptak today reviewed the request by Charles Dean Hood for the US Supreme Court to decide whether Hood's due process rights were violated because the prosecutor and judge in his capital murder case engaged in a romantic affair. (The Texas Court of Criminal Appeals already signed off on the arrangement.) From his assessment of recent, thematically related cases before SCOTUS, it sounds as though Liptak thinks the high court may well take the case and side with the defendant:

The Supreme Court has lately taken some interest in the integrity of the judicial system.

Last year, it ruled that millions of dollars in campaign spending on behalf of a West Virginia judge was reason enough to require his disqualification from a case involving his supporter.

“The probability of actual bias on the part of the judge,” Justice Anthony M. Kennedy wrote for the majority, was “too high to be constitutionally tolerable.”

And last month, the Supreme Court ordered the federal appeals court in Atlanta to have another look at a case in which jurors in a capital trial gave a trial judge an odd gift — a penis made of chocolate.

“From beginning to end,” the unsigned majority decision said, “judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”

To review the bidding: Campaign spending may undermine the integrity of the judicial system. The same goes for a gag gift of confectionary genitalia. But a love affair between the judge and prosecutor in a death penalty case is, in Texas, at least, another matter.

Liptak writes that Judge Holland is angry with Hood's lawyers for “annihilating my reputation," but as far as I can tell, she has no one but herself to blame on that score. She indulged in a secret sin. She admits that, because of that secret, if she'd been asked to recuse herself she would have done so. But because she concealed the information (and the DA actually lied about it) nobody knew to ask her to do the ethical thing and remove herself from the case. That Judge Holland thinks anybody but her is responsible for that chain of events beggars belief. She may be unhappy she got caught - that much I understand - but the only thing annihilating her reputation is the truth that finally came out and her self-serving delay in telling it.

Between Judges Holland and Keller, the last week has been a particularly unhappy one for current and former Court of Criminal Appeals judges. Both women blame their accusers for their troubles, not seeming to understand that the biggest disgrace wasn't necessarily their initial misbehavior but their continued, defiant insistence that no one had the right to hold them accountable.

These aren't the first examples of egregious judging from the Texas Court of Criminal Appeals, but they're arguably the highest profile ones yet. Yet another benchslapping from SCOTUS, this time over sexually tinged misconduct by a former CCA judge, probably won't be enough in this author's opinion to cause the court to change its ways. That must ultimately happen at the ballot box. The Hood case shows that simply having become a national laughingstock clearly has had little impact on the court's self-satisfied behavior.

MORE: From Rick Casey at the Houston Chronicle, "Best clue: The case of the erotic candy."

See related Grits coverage:


ckikerintulia said...

And few voters pay any attention to those "down the ballot" choices.

Anonymous said...

We must never let up in our efforts to de-legitimize public officials such as judges, prosecutors, police and correctional officers. We must unceasingly oppose and expose them by all means necessary.

Bill said...

Judge Holland thinks she's a victim, eh?
Tom O'Connell, the Lothario in this tale sees himself as some kind of an elder statesman. He's actually endorsing judicial candidates in the GOP primary.

Only in Texas!

Bill Baumbach
The Collin County Observer

Michael said...

I have bruises from when I fell out of my chair after reading that Holland resented the lawyers for annihilating her reputation. How can people side with such an accountability-denying adulteress with a straight face?

Is SCJC going to investigate whether Holland violated any canons of the Code of Judicial Conduct? Canon 2.B. (not allowing any relationship to influence judgment), Canon 3.B.(8) (ex parte communications), and Canon 4.A. (Extra-judicial activities) spring to mind.

TDCJEX said...

Interesting case .that could set a precedent and a make some very good case law. Smith County must be file a amimucs brief in support of the state . Consider the number of relationship if all sorts going on there . On second thought make that lots of jurisdictions in TX and oh ell all50 states and every Territory might be very nervous about that case . Something tells me that this is be a very very expensive affair for many states. Maybe they cold bill Holland and O Connell

Lots of defense and appellate attorneys are Just waiting for this one . It could be much bigger than any one thinks. This nonsense goes goes on every where at some level .
There are more about related issues. in the pipeline too . .

That ha sbe one of the most arrogant statements of the year Verla Holland a victim . Of what her and her lovers inability to control and failure to recuse themselves from a case /s. Holland is angry Hoods lawyers or ”annihilating he reputation. I thought only “criminals” blamed every on else ? She annihilated her own reputation

What was she expecting them to do act as if fit did not happen?That would be not only failing to provide their client with a proper representation it is unethical .
She is only demanding them to be unethical and ignore her unethical and possibly criminal behavior. Arrogant yes surprising not a bit . Cops prosecutors and any government official Should both be held to a higher standard but fully prosecuted then serve prison time the same or maximum sentence handed down when they got caught . .

I am guessing 6 – 3or 7- 3 in favor of Hood decision in this one with Roberts and Alito unquestionably dissenting Thomas hard to guess on this . Yep Scalia is going vote against the state as the 6th amendment seems to be one of his pet projects

Faceless Man said...

It's unfortunate that it took a SCOTUS filing to address the central issue: fairness.

A new trial will cost taxpayers a chunk of change. They have Holland and O'Connell to thank for that.

Anonymous said...

Faceless--Other than speculating, can anyone identify a single ruling by Holland which would indicate bias on her part? Wasn't it the jury who ultimately made the decision in this case to sentence Hood to death? Did the judge create the facts or the law which resulted in the death sentence being returned? I suspect that most posters on this blog opposed the death penalty under any circumstance. It wouldn't matter to them if Holland had the moral scruples of Mother Theresa. They would still not want Hood to be executed. Instead of all of the self-righteous indignation and hyperbole about the "scandalous affair" between the prosecutor and the judge, I sure wish someone would identify a single ruling in Hood's trial which was questionable or which might have cast any doubt upon his guilt or worthiness for the death penalty. If there is such a ruling, then I might more easily stomach the expenditure of addition tax dollars for a retrial of this worthless POS.

Faceless Man said...


Yes, a court/jury found him guilty based on evidence presented at trial. Despite what you or other people may think (via reading way too much into a simple comment), I haven't called Hood's guilt into question. To me, there's little I have seen to merit doing so.

However, the existence of the affair and the subsequent cover-up calls EVERY ruling by Holland and the actions of O'Connell into question. That my friend, isn't speculation.

At the end of the day, it's about the integrity of the courts and the justice system. She and O'Connell did a disservice to Ronald Williamson, Tracie Wallace and their families, lest we forget.

Maybe you'd like to live in a small world where public officials are beyond reproach or bad actors never have to answer for mucking up the system and/or violating constitutionally guaranteed rights of a defendant. I choose not to.

I do favor the DP. I'm also in favor of it being a fair process so that trial and punishment phases are carried out in accordance with the law so that victims and defendants are represented properly.

Our constitution demands it.

Anonymous said...

So every ruling that Holland made in the Hood case was contrary to the law and/or the rules of evidence? Wow! And he's had how many appeals? Were all of the appellate justices in state and federal court who've had an opportunity to review the trial record and Holland's rulings having an affair with her too?

Don't get me wrong. I understand the whole issue regarding "appearance of impropriety" and so on. Those are ethical standards for which judges should be held accountable. However, contrary to what some people on this blog may believe, the Due Process provisions of the Constitution do not require PERFECT process, or even the best process money can buy. Ultimately, the trial record in the Hood case will show whether Holland's rulings on objections or jury instructions as to the law were correct. The appellate courts will review these rulings ad infinitum. Unless someone can point to a legal or evidentiary ruling by Holland which was contrary to the law, or knows of some evidence or circumstance which would undermine confidence in Hood's conviction or death sentence, then the jury's verdict as Hood's guilt and punishment deserves to be enforced. All of this discussion about the judge's "affair" is ultimately nothing more than rank speculation. Until someone on here can get past their moral "high-mindedness," I'd just as soon leave this vicious killer on death row right where he belongs.

Gritsforbreakfast said...

12:20, your speculations about others' opinions and motives are misguided - don't let your assumptions and prejudices guide your views, but look to the facts.

The other judges weren't all sleeping with Holland, but in this case 8 of the 9 sitting CCA judges later served with Holland on the bench, so it's not difficult to imagine their sympathy toward a colleague and friend might explain their (unsigned, per curiam) rejection of a due process claim they'd earlier ordered a district judge to explore.

Also, look at the SCOTUS cases Liptak cites. SCOTUS didn't specify this or that ruling the judge got wrong who received over-the-top campaign contributions, just that it created too great an appearance of conflict. If that's the case with THAT relationship, it's hard to imagine them taking sexual congress more lightly than legal campaign contributions.

Finally, the DA didn't personally try that many cases before Holland. This was a high-profile death penalty case and he wanted to try it himself (for reasons about which one could speculate, but I do not know). So there wouldn't be that many workaday cases where this would come up. This guy wasn't in court in front of Holland day in and day out.

Anyway, stretching "harmless error" to cover this set of facts in a capital murder case begs credulity, especially since the main reason it took so long to raise the issue was that elected officials engaged in misconduct then concealed and lied about the behavior. If that's okay then you've just announced that the end justifies the means; from then on, anything goes.

The rule of law is a great thing, but it cuts both ways.

Faceless (Not Perfect) Man said...

As far as the whole "moral high-mindedness thing goes, I can only try. Fear not, I'm not trying to indoctrinate you. Much like yourself, I'm not perfect nor do I pass myself off as such.

"All of this discussion about the judge's "affair" is ultimately nothing more than rank speculation."

Not so fast my friend. Holland and O'Connell admitted to the affair in depositions. That fact is not in dispute. My spidey senses tell me you were probably speaking more towards its effect on the outcome of the trial and Hood's Due Process rights.

The problem is that in this case, the process (including all of her rulings-even if law was followed to a tee) was corrupt because of the inpropriety.

TDCJEX said...

What annon 12:20 and 9:15 is saying is he does not have a problem with officials being unethical or even committing crimes so long as the put come is what he wants . In this case a executing a man . A repulsive line of thought

Anon 1`2:20 / 9:15 is bizarrely conflating tangentially, disgust with a serious breach of public trust and total disregard for even a semblance of justice and fairness with being against the death penalty. He also claims this means wanting Hood set free .Two bizarre and unsupportable positions .

The whole point is that a ruling made by Holland and is called into question due to her affair with a prosecutor . That nothing was apparently found wrong does not mean there is not anything wrong it means that the system failed . If one goes purely by procedure and what inherently flawed courts have ruled then their might be a impression of that not doing is wrong at all ,. A unsustainable position but that is not reality not even close , because of that we have to examine if what we are doing is just fair , right or moral .

The problem is that something might be procedurally correct but be totality wrong . That should not be difficult to grasp . Once again the only people to blame are Holland and and the DA.

I would venture a guess that that attorneys who have had legal dealings with either of these two are wondering I just what went on in their case/s if the they willing to cover up a illicit affair and let a man get executed to keep it hidden ( Grotesque it self ) ) I have little doubt that there is much more than a affair and who knows just what else has been covered up .It is entirely reasonable line of thought that both had other things to hide and have a court keep hidden .

For other reasons .I also have little doubt that attorneys who have had dealings in Smith County are just waiting for the SCOTUS to potentially hand them what they have needed for decades. This could be a very important decision . It should be noted to part of this will involve something about inability to find misbehavior if the state hinders your efforts to do so . That is where things will get interesting not only for Hood by many people . Faceless is right it is the impropriety part be huge .
I will stick with being “high minded” than the alternative.

Anonymous said...

Grits, correct me if I'm wrong but didn't several of the justices on the CCA recuse themselves from the Hood appellate proceedings due to the fact that they had served on the bench with Holland?

In any event, I guess I'm still having a little difficulty getting my mind around the notion that that the Hood trial was "corrupt per se" as Faceless seems to suggest. I'm just not ready to concede that the trial was "tainted" without someone objectively showing me one scintilla of proof that the judge's relationship with the prosecutor in some way changed the outcome of an adversarial proceeding where the jury ultimately made the decision as to guilt and punishment.

I don't know if my memory is accurate, but I seem to recall reading somewhere that the "affair" between Holland and the DA had terminated well before the Hood trial. Obviously, there are canons of judicial ethics which prohibit judges from presiding over cases in which their spouse represents one of the parties. However, barring some type of actual legal "kinship," the question of whether any relationship presents an actual conflict such as to impact the fairness of a trial becomes one of degree and is actually quite relative.

It's not uncommon at all, especially in smaller counties, for judges, prosecutors and defense attorneys to socialize together on the golf course, in civic clubs, at the local watering hole, or at church. As Grits points out in reference to the recent Supreme Court case, it's also not uncommon for lawyers to make campaign donations to elected judges. At what point does that relationship become "too close?" Is there something magical about "fornication" that automatically means the judge can't be fair. What if Holland and O'Connell had dated in law school? What if they had been previously married and had later divorced and pursued separate career paths? What if they were second cousins? What if they were former law partners? What if it was a one time overnight fling? What if their respective spouses knew and had forgiven them? The list could go on and on. To me, it's all totally relative.

I suppose it's pretty easy to get all self-righteous and sanctimonious when two consenting adults had what many would consider to be a moral failure. Nonetheless, did Bill Clinton become a bad president because of his fling with Monica? Did Tiger Woods become a 10 handicap golfer because he was evidently bopping anything with a skirt?

In this particular case, it's not hard to jump on the bandwagon and demonize the judge and the DA. But to say that an illicit affair which was concealed automatically tainted the trial or caused an outcome which would not have occurred otherwise is merely an assumption. If their relationship created any obvious or even subtle demonstrative influence upon the outcome of the Hood trial, I'm thinking someone would have pointed it out by now.

Faceless Man said...

As far as proof, it's been in front of you the whole time. You've merely chosen to ignore it.

Ignorance must be bliss 3:08.

Gritsforbreakfast said...

3:08 - "didn't several of the justices on the CCA recuse themselves from the Hood appellate proceedings due to the fact that they had served on the bench with Holland?"

None of them did to my knowledge.

"I seem to recall reading somewhere that the "affair" between Holland and the DA had terminated well before the Hood trial."

This is disputed territory. The judge who the CCA ordered to do the fact finding (which they then ignored) said we can't know for sure because of faded memories, etc.. As I understand it, initially, O'Connell denied the affair, then when he admitted it he at first said it continued until after Hood's trial. Then Judge Holland in her deposition said the affair ended three years prior, and O'Connell changed his story to match hers, declaring he must have misremembered. Both agree they continued to have a close personal relationship afterward - he even joined her on family vacations - and they said they were "in love."

You can minimize it if you choose to, but the ethical breach is pretty clear and any delay in bringing the issue up was due to misconduct by public officials.

If SCOTUS does take the case, I'd be surprised if they have as generous a view of "harmless error" as you and the CCA.