Dispatch September 2008

A Legal Affair

Convicted murderer Charles Dean Hood has been granted a stay of execution. But the fact—confirmed at last—that the judge and the prosecutor on his case had "an intimate sexual relationship" has not been addressed
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Convicted double murderer Charles Dean Hood won a stay of execution on Tuesday, only hours after the judge who had presided at his 1990 trial acknowledged she’d been involved in a long-term intimate relationship with the district attorney who prosecuted Hood’s case. The ruling by the Texas Court of Criminal Appeals means that Hood is off the hook, at least for now. But the same can’t be said for the Texas justice system, which has seen some of its most egregious excesses exposed in the battle over whether Hood should live or die.

Also see:

Travesty in Texas (September 8, 2008)
"The case of convicted double murderer Charles Dean Hood raises deeply disturbing questions about the state's administration of justice." By Alan Berlow

In issuing the stay, the Court of Criminal Appeals, the state’s highest court, ducked the issue of the alleged affair entirely, but instead agreed to reexamine whether the instructions Hood’s jurors were given prior to sentencing him to death were constitutional. The CCA has previously ruled that there was no problem with those instructions. The decision means that Hood could get a new sentencing hearing—which could result in a sentence other than death—but not a new trial.

Lawyers for Hood, who was scheduled to be executed on September 10, have been arguing since June that their client’s 1990 trial was thoroughly compromised by the relationship of Judge Verla Sue Holland and District Attorney Thomas O’Connell, and that the death sentence was therefore invalid and that Hood should be retried. But the courts and the district attorney for Collin County, just north of Dallas, had all dismissed the allegations as nothing more than “rumor.” While the DA pressed to have Hood executed, the state’s criminal courts ruled that it was too late in the game for Hood to raise the claim about an intimate relationship.

With the allegations of an affair no longer “rumor,” the DA’s office appears to be sticking to its guns. Assistant District Attorney John Rolater told the Dallas Morning News that his office “will vigorously defend our judgment and sentence,” and suggested that the fact that the former DA had been sleeping with the judge was of no consequence because “there was no affair going on during Hood’s trial.... It’s fairly clear that this was over well before the trial.”

In fact, it is by no means clear when the affair ended. Although District Judge Greg Brewer, who ordered the depositions, placed a gag order on discussion of their contents, some details emerged in a letter sent by Hood’s lawyer, Gregory Wiercioch, to Governor Rick Perry seeking a 30-day stay of execution. In that letter Wiercioch states that O’Connell and Holland agreed that the relationship began several years before Hood’s trial, but disagreed about exactly when it ended, and remained “good, close friends” even after they stopped sleeping together.

More importantly, the letter to Perry suggests that neither Holland nor O’Connell gave a second thought to their joint participation in the Hood case or any other case brought by O’Connell’s office and tried before Holland. “Judge Holland and Mr. O’Connell admitted under oath that they had an intimate sexual relationship for many years,” the letter states. “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.” The letter goes on to say that O’Connell also failed to disclose the relationship to any of his adversaries.

“No reasonable person would believe that a fair trial is possible when the presiding judge has had an intimate sexual relationship with one of the lawyers in the case,” Wiercioch writes. “That neither Judge Holland nor Mr. O’Connell disclosed the existence of the affair to Mr. Hood or his counsel is a shocking and devastating indictment of the Texas criminal justice system.”

Hood was sentenced to death in August 1990 for the 1989 murder of Ronald Williamson, 46, and Williamson’s girlfriend, Tracie Wallace, 26. Hood had worked as Williamson’s bodyguard and was living with him and Wallace at the time of the murders. Both victims were shot in the back of the head and were found in Williamson’s house. Hood was picked up in Indiana where he was driving Williamson’s Cadillac. He was linked to the crime scene by fingerprint evidence. Hood continues to insist he was innocent.

Among legal ethicists there is no question that Judge Holland should have recused herself from trying Hood’s case. Lawrence J. Fox, a professor of law at the University of Pennsylvania Law School and the former chairman of the ABA Standing Committee on Ethics and Professional Responsibility, said Holland, O’Connell and the State all had an obligation to reveal the information about the affair “long ago.” “What is stunning is they were all prepared to let the defendant be executed. They stood silent.... It is stunningly disgraceful.” Fox said that if Hood “does not get a new trial, there is no justice.”

Monroe Freedman, author of Understanding Lawyers’ Ethics and one of the country’s leading authorities on professional conduct, stated in an affidavit that “Mr. O’Connell’s success or failure as the prosecutor in Mr. Hood’s case could have had considerable significance to the advancement of Mr. O’Connell’s career. Accordingly, Judge Verla Sue Holland had a personal interest on behalf of her lover, District Attorney O’Connell, in the conviction and death sentence of Mr. Hood.”

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