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.”

Based on that conclusion, Hood’s lawyers go on to argue that eight of the nine sitting members of the CCA—the eight who were on the bench with Holland—should recuse themselves from consideration of Hood’s appeals because they may have “extrajudicial knowledge” about the alleged affair. Hood’s lawyers argue, in effect, that even if the other members of the CCA didn’t know exactly why Holland was constantly ducking out on cases, they should have been asking questions.

David Dow, the litigation director of the Texas Defender Service who is working on Hood’s defense, said it “would be improbable that not a single member of the court bothered to ask” Holland why she was constantly recusing herself from cases.

In recent weeks, those same CCA justices not only refused to examine the alleged affair on its merits—while simultaneously giving a green light for Hood’s execution—they made those decisions without a single member of the CCA recusing due to a prior relationship with the since-retired Judge Holland. Given that precedent, it seems unlikely those CCA judges will suddenly discover that they might have some ethical conflict that obliges them to desist from participating in the Hood case.

On the other hand, the Texas Attorney General, Greg Abbott, may have given the CCA judges reason to reflect on their continuing role in the case. On Friday, Abbott filed a friend of the court brief on Hood’s behalf, citing what he called “the unique and extraordinary circumstances concerning the trial of this case.” Abbott called for a thorough review of the case and the alleged romance by the “appropriate trial court,” while making clear that he views the allegations of an affair as “unsubstaniated.”

Although the Texas Attorney General’s office did once intervene to stop the execution of a convicted murderer believed to be innocent, intervention on behalf of a suspect the AG believes is actually guilty is apparently unprecedented.

But Abbott may know more than he’s letting on. On Friday, his office dumped one of its more prominent clients, former Judge Verla Sue Holland who had been getting legal advice from Assistant Attorney General Madeleine Connor during the preceding ten days. Holland is now represented by William Boyd who, like Holland’s alleged lover, Tom O’Connell, was once the Collin County District Attorney. Boyd is a high profile criminal defense lawyer who once represented Charles “Tex” Watson, convicted of murdering seven people as part of the notorious “Manson Family.”

Greg Wiercioch, an attorney for Hood, argues that the Attorney General represents the people of Texas and is required to turn over any information he may have gained from Holland that substantiates Hood’s claim of an affair. Abbott’s office will almost certainly claim attorney-client privilege.

Today, the Dallas Morning News reported that the lead attorney for Judge Holland in Abbott’s office, Madeleine Connor, has filed a grievance against her boss, Mr. Abbott. The newspaper said Connor would not discuss the grievance, but it presumably has something to do with Abbott’s decision to weigh in on the side of Hood.

Meanwhile, Abbott sent an extraordinary letter to the current Collin County District Attorney John R. Roach arguing that, “if the execution proceeds as scheduled, before questions about the fairness of his trial are legally resolved, neither the victims nor justice will be served.” Abbott said he’d filed his amicus on behalf of Hood “to protect the integrity of the Texas legal system.” Until now, Roach has given no indication that he believes the integrity of the Texas legal system might be threatened by the behavior of lawyers in his office. Roach dismissed questions about the role of lawyers from his office in the Hood prosecution as “speculation.”

Roach might be reluctant to raise questions about his predecessor, Tom O’Connell’s, role in the Hood case, because it could open a small can of worms: Collin County court records indicate that O’Connell argued at least six other cases for the state before Judge Holland.

According to Richard Ellis, one of Hood’s attorneys, “hundreds” of cases could conceivably be reversed if the relationship between Judge Holland and former DA O’Connell is established. Ellis insists that Roach has a “blatant conflict of interest” in seeking Hood’s execution while “opposing efforts to investigate misconduct” by attorneys in his office.

Like so many other players in this small town story, Roach has his own ties to Judge Holland. In 1987 Roach was the judge in Collin County’s 199th District Court where he presided over a civil action in which three named defendants, including Earl Holland, were ordered to pay the plaintiff $88,000. At the time Earl Holland was recently divorced from Judge Holland. He died in 2005.

A second defendant in that case was Robert T. Dry who now holds the judgeship formerly held by Roach in Collin County’s 199th District Court. Judge Dry was recently assigned to a civil case Hood’s lawyers brought in a desperate attempt to force Judge Holland and Tom O’Connell to answer questions about their relationship. That is the case now before Judge Brewer, who has ordered the depositions to proceed.

In a letter to Hood’s lawyers, Dry made it clear he saw their motion as an end-run around the criminal justice system, and he very deliberately set a hearing on the matter for September 12, two days after Hood’s scheduled execution. “In reality, you are exploring a civil lawsuit for the estate of Mr. Hood,” Dry wrote, suggesting that the matter could just as easily be pursued after Hood’s death.

Dry publicly acknowledged that he knew both Judge Holland and DA O’Connell. But Dry is also listed as a “judicial officer” in the 1987 divorce proceedings of Judge Holland and her late husband Earl. In addition, Dry did business with Earl Holland and represented him in two other civil actions in 1987. In one of them, Holland, Dry, and a third defendant were ordered to pay a Texas bank more than $1.3 million. On September 2, two weeks after being assigned to the Hood case, I called Judge Dry’s office to inquire whether his business dealings with Earl Holland might present any conflict in handling the Hood matter. Dry recused himself the next day.

Even if Hood's lawyers succeed in deposing Judge Holland and former DA O’Connell in a civil proceeding, they still need to figure out a way to get their claims heard before a criminal court. Hood’s lawyers believe the new evidence of Holland’s recusals or evidence gathered from depositions of Holland, O’Connell or both should result in a hearing by one of the Texas courts. That in turn would require a stay of Hood’s Wednesday execution. Meanwhile, Hood's lawyers have asked Governor Rick Perry to grant a 30-day reprieve.

Alan Berlow, a freelance journalist, writes frequently about criminal-justice issues. He is the author of Dead Season: A Story of Murder and Revenge (1996). His documentary about jurors in capital murder cases, "Deadly Decisions," was produced for American RadioWorks and broadcast on NPR stations in 2002.
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