"What's more compromising than money?"

The title of this post is the headline to a New York Times editorial yesterday scolding the US Supreme Court for not accepting the Charles Hood case. According to the Grey Lady:

The Supreme Court abdicated its responsibility to address fundamental questions of ethics and fairness when it declined to review the case of Charles Dean Hood, an inmate on death row in Texas.

The one-line order, issued without comment from any of the justices, left in place an egregiously tainted 1990 double-murder conviction. Eighteen years after Mr. Hood was sentenced to death, the state trial judge, Verla Sue Holland, and Tom O’Connell, then the Collin County district attorney, admitted that they had had a secret affair that appears to have ended not long before the trial.

After considering these seamy circumstances, the Texas Court of Criminal Appeals last year denied Mr. Hood’s request for a new trial, ruling — incredibly — that he took too long to raise the conflict of interest and should be executed. Yet it took a court-issued subpoena to get the two officials to confirm their long-rumored affair. Their success in hiding their relationship should not count against Mr. Hood. ...

The Supreme Court correctly ruled last year that millions of dollars in campaign spending on behalf of a judge’s election bid created an intolerable “probability of actual bias.” The court decided that Chief Justice Brent Benjamin, of the West Virginia Supreme Court of Appeals, was required to recuse himself from a case involving Massey Energy, one of the country’s biggest coal companies, after Massey’s chief executive spent $3 million to help get Justice Benjamin elected.

The right to a fair hearing, before an impartial judge, is at the heart of the nation’s judicial system. If money raises a serious question about that impartiality, love seems to be at least as worrisome. The Supreme Court, sadly, failed in its duty to clearly draw that line.

Though the Times said the affair appeared to end before the trial, we really don't know. Mr. O'Connell at first said the relationship continued past the trial, then he recanted when Judge Holland insisted it ended earlier. He now says he must have misremembered and agrees with Judge Holland on the timing. However, these are people who violated ethical canons for years to keep from being held accountable. Both say they were in love. Do we really believe their equivocating, self serving declaration that the affair had ended, but they remained close friends thereafter and even traveled together on vacations without any sexual liaison? To me it seems to beggar belief. I'm inclined to believe Mr. O'Connell was telling the truth the first time - that the relationship ended in 1991 or '92. However no one really knows but them.

The Times is right this is a tremendous disgrace. Hood's new punishment phase trial doesn't really mitigate the harm to the judiciary's credibility, but it provides sufficient cover for SCOTUS to ignore the situation for now and lets the Texas Court of Criminal Appeals kick the ball down the road a few years.

See related Grits coverage:

• Sex Parte okay in Hood case, say courts
• Charles Hood death sentence thrown out: CCA says it 'completely misunderstood' SCOTUS for past 20 years
• Sex Parte Redux: SCOTUS should "remedy appalling acts by a judge and officer of the court" in Charles Hood case, since Texas CCA won't
  
• Disgrace! CCA lets stand egregious misconduct in capital murder case
  
• Sex Parte: Coverup of judicial tryst tests CCA's ethical mettle
• CCA Follies: They who have put out the people's eyes reproach them of their blindness