Dispatch September 2008

Travesty in Texas

"The case of convicted double murderer Charles Dean Hood raises deeply disturbing questions about the state's administration of justice."
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UPDATE: The Texas Court of Criminal Appeals granted charles Dean Hood an indefinnite stay of execution late on Tuesday

Texas is notorious for putting more murderers to death than any other state, and for executing some who may have been given something less than stellar due process. The case of convicted double murderer Charles Dean Hood—scheduled for execution this Wednesday—is particularly egregious. It raises deeply disturbing questions about the state's administration of justice and should be an embarrassment to anyone who claims that Texas is committed to the fair administration of its death penalty.

At the center of the controversy is the allegation that the judge at Hood’s 1990 trial, Verla Sue Holland, now retired, had an ongoing romantic involvement with the man who prosecuted the case, Collin County District Attorney Tom O’Connell. Hood’s lawyers are seeking to stay his execution until this matter is resolved.

That Holland should have recused herself at that trial seems beyond dispute. Monroe Freedman, one of the nation’s leading experts on legal ethics, filed an affidavit in the case, arguing that if the allegations are true, Judge Holland “had a personal interest on behalf of her lover, District Attorney O’Connell, in the conviction and death sentence of Mr. Hood” and that Hood’s trial and death sentence were therefore invalid and should be overturned. Ten of the nation’s leading legal ethicists signed Freedman’s affidavit. Last week 22 former federal and state judges and prosecutors, including former FBI Director William S. Sessions, signed a letter asking Texas Governor Rick Perry to grant Hood a 30-day reprieve so that questions about the affair could be laid to rest. “It is an irrevocable wrong to send a man to his death without ever hearing the critical evidence.”

Rumors of the alleged affair date back at least to the time of Hood’s trial. I first reported the allegations three years ago, citing two sources who were extremely close to Judge Holland’s late husband Earl, the purported cuckold in this affair. Both were adamant that the reason Earl Holland divorced the judge in 1987 was the ongoing affair with O’Connell. One woman, a relative of Earl’s, told me she was “100 percent sure that there was an affair,” and that Earl had collected a “shoe box” full of audiotape recordings of the judge’s private conversations with the prosecutor. A second source, a relative of Judge Holland who described himself as one of Earl’s “closest friends,” told me that Earl Holland frequently talked about his wife’s romance with O’Connell, both before and after the divorce, and that Earl was “absolutely convinced” his wife and O’Connell were having an affair. Neither of these sources agreed to be named.

It was not until last June that a former assistant district attorney in Collin County at the time of the Hood trial agreed to speak out on the record. Matthew Goeller signed an affidavit stating that it was “common knowledge in the district Attorney’s Office, and the Collin County Bar, in general,” that O’Connell and Holland had a “romantic relationship,” which was ongoing from at least 1987 until 1993. Goeller said the relationship raised questions about the judge’s “impartiality” and propriety.

What Goeller made clear—and what is perhaps the most remarkable aspect of this case—is the sheer number of people who have some knowledge of the personal relationship between Holland and O’Connell yet remain mute, even as a man is about to be put to death. Among them are numerous, prominent elected and appointed public officials, including members of the Collin County district attorney’s office, which has relentlessly pursued Hood’s execution, justices of the Collin County courts and, as Hood’s lawyers suggest in a pair of motions they filed today, members of the Court of Criminal Appeals (CCA). One of the motions filed today seeks a stay of execution; the other asks eight of that court’s nine justices to recuse themselves from any further involvement in the highly controversial case. According to Monroe Freedman, any lawyer or judge who had knowledge of the alleged relationship should have reported it either to the state bar association or the judicial disciplinary committee. But no one did.

Hood’s problem is finding people who are willing to speak out publicly about the affair and getting a court to listen to them. That’s no simple matter when the two people who could settle this matter definitively, Holland and O’Connell, aren’t talking. When I interviewed O’Connell in June, 2005, she would neither confirm nor deny the relationship but instead made the astonishing claim that it would be “unethical” to comment on a pending case.

When Hood went to trial in 1990, no one, including the defendant’s own attorney, said a word about the alleged affair. Now, 18 years later, the courts have effectively declared that, “It’s too late:” Hood should have raised the matter at trial, and besides, allegations of an intimate relationship are nothing more than “rumors.”

The combined effect of these judicial pronouncements is a classic Catch 22: Hood’s lawyers can’t question Holland and O’Connell about the affair because the clock has run out, and even if it hadn’t, the lawyers can’t ask questions because they have no solid evidence of the affair, which the judge and the DA refuse to discuss.

Today, Hood’s case finally landed with a judge who was willing to examine the question of the alleged affair. After a futile effort by Holland’s lawyers to have the case moved to federal court, Collin County District Judge Greg Brewer ordered depositions of former District Attorney Tom O’Connell and former Judge Holland to proceed. As I write, O’Connell is on his way to be deposed in a courthouse jury room. No one knows, of course, whether O’Connell will talk or what he will say. And the same goes for Holland who is scheduled to be deposed tomorrow morning.

But even if they acknowledge the affair, Brewer’s proceeding is a purely civil matter. Hood’s lawyers will then have to find a criminal court that is willing to review whatever evidence the depositions produce.

In the appeal filed today, Hood’s lawyers presented new evidence which they say supports their claim that Holland was romantically involved with O’Connell. The lawyers submitted the results of an investigation showing that Holland had recused herself from 78 percent of the Collin County cases that went up on appeal to the Court of Criminal appeals. The findings indicate that Holland declined to participate in 381 out of 485 cases, a staggering number of recusals. Among them was the Hood case.

Hood’s lawyers then compared Holland’s recusal rate to that of two judges who, like Holland, had moved from county court judgeships to the CCA and found that their recusal rates were less than one percent—.42 percent and .5 percent respectively. In other words, Holland’s recusal rate was 160 times that of either of her similarly situated colleagues.

Why?

“The simplest explanation is the most plausible one,” Hoods lawyers argue. “Judge Holland recused herself at such an off-the-charts rate, because she had previously been romantically involved with the then-current District Attorney of Collin County when cases from his office reached this court.”

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